Alleged Negligence: Delhi HC asks MCI to look into novel CABG technique developed by cardiac Surgeon
The technique in question was the "Nambiar Technique" developed by Cardiac SurgeonDr Pradeep Nambiar which is basically a keyhole heart bypass, with only a single two-inch incision on the left breast using multiple arterial grafting, thus, helping the patient recoup in only three days.
According to the media reports on the technique, the technique was first applied in June 2011 and in April 2014 after a total of 149 surgeries, International Society for Minimally Invasive Cardiothoracic Surgery (ISMICS) validated it as a recommended procedure that saves resources, doesn’t cause infection, increases longevity and helps the patient get back to normal life in not more than 10 days. They also named it The Nambiar Technique
The case goes back to year November 2014, when a female diabetic patient, aged 70 years, came under the care of Dr Pradeep Nambiar, cardiac surgeon with complaints of severe angina and shortness of breath. She was advised coronary artery bypass grafting (CABG) for removal of blocks from her coronary arteries
The cardiac surgeon performed the surgery by using an innovative technique, which he referred to as the ‘Nambiar Technique’. However, the patient died during the operation
Her husband then filed a complaint with the police against the doctor alleging medical negligence. According to the petitioner, the said technique is experimental and is not an accepted method for conducting the surgery. It is also alleged that the petitioner and the deceased had been induced into believing that the said surgical operation is safe and an accepted procedure, which is within the limits of acceptable risk.
As per the mandate of the law,an FIR for negligence cannot be registered unless the police authorities obtain an expert opinion. The police then forwarded the complaint to DMC/MCI before proceeding to register any FIR against a doctor for criminal negligence.
The DMC held that procedure actually performed on the patient was an experimental procedure referred to as ‘Nambiar technique" and hence held the doctor guilty. The MCI, appellate authority of the state medical council set aside the order passed by the Delhi Medical Council (DMC) and thereby absolving the doctor of all the charges levelled against him.
Challenging the said MCI order, the patient's family approached the Delhi HC.
The court after going through the entire case noted that The principal question to be addressed is whether in the present case, the police authorities ought to have acted on the view expressed by DMC in its order
"Obviously, the answer to the same is in the negative. This is so because respondent no.5 had appealed against the said decision before MCI and MCI had allowed the said appeal and set aside the order dated 04.04.2016 passed by
DMC. In view of the above, DMC’s order was inoperative and of little value, " the court held
On the issue of petitioner challenging the MCI order, the court noted that a plain reading of the said order indicates that the Ethics Committee of MCI had examined the opinion of the Experts in Cardiac Surgery and had concluded that respondent no.5 had not committed any surgical procedure, which was not acceptable
as a medical procedure for the treatment administered to the petitioner’s deceased wife. It also observed that the attendants of the patient had agreed to the minimal invasive cardiac surgery and had also given their consent for the higher risk under the prevailing circumstances.
The court noting that the MCI gave its decision based on the assumption that the CABG that was done on the patient was an acceptable procedure, noted that council did not examine whether there was any material difference in the minimal access CABG procedure and the one with the "Nambiar Technique" which was performed on the deceased.
It does not appear that MCI had examined that aspect of the matter; it merely proceeded on the basis that a minimal access Coronary Artery Bypass Graft (CABG) was an acceptable procedure. MCI has also not examined whether there was any material difference in the minimal access CABG procedure and the one which was performed on the deceased. This is material, since DMC had held that the procedure actually performed on the patient was an experimental procedure referred to as ‘Nambiar technique’. MCI had proceeded on the basis that the Nambiar technique is only an innovation of the minimal access procedure. However, there is no material on record to indicate that as to what the said innovation is and whether such an innovative technique – if it is so – is otherwise acceptable for purpose of the surgery.
The court then directed the MCI to consider the matter afresh and give its opinion
In view of the above, this Court considers it apposite to set aside the order dated 29.11.2017 passed by MCI and remand the mater for consideration afresh. Both the parties – the petitioner as well as respondent no.5 ( the doctor) – would be afforded full opportunity to present their submissions. MCI is also at liberty to seek an expert opinion in this regard. It is further directed that after evaluating all relevant material and rival contentions, MCI shall pass a speaking order clearly indicating the reasons for its view.