Supreme Court relief to Doctor, Death during surgery is not medical negligence

"To indicate negligence there should be material available on record or else appropriate medical evidence should be tendered. The negligence alleged should be so glaring, in which event the principle of res ipsa loquitur (a doctrine or rule of evidence in tort law that permits an inference or presumption that a defendant was negligent) could be made applicable and not based on perception," the bench comprising of Justices Hemant Gupta and A S Bopanna clarified while it set aside the order of the National Consumer Disputes Redressal Commission (NCDRC).

Such observations came from the too court after a judgment of NCDRC was challenged before the bench. In that judgment, the NCDRC had held a doctor and hospital guilty of medical negligence where a patient suffering from kidney stone and Hydronephrosis had died due to cardiac arrest during the surgery.

Holding the treating anesthetist guilty, the top consumer court had directed him to pay Rs 17 lakhs along with interest at the rate of 9 % per annum from the date of filing the complaint till the date of payment.

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As per the case, a patient visited the hospital on October 8, 1996 and was diagnosed with kidney stone in her right kidney and Hydronephrosis of Grade II in the left kidney. She was advised to undergo surgery by the treating surgeon.

Accordingly, the patient admitted herself on December 6, 1996 and the doctor informed the patient as also her husband that both the kidneys could not be operated at the same time due to the severe damage and they were advised that as per the medical practice, the less affected kidney, that is the left kidney would be operated on in the beginning since complete removal of the right kidney cannot be ruled out, adds PTI.

Further the apex court noted that the doctor performed the surgery of the left kidney, which was a successful operation and as per the say on behalf of the hospital and the doctors, the condition of the patient improved by December 12, 1996 due to which the possibility of the second surgery to the right kidney was considered.

The necessary tests conducted by the anaesthetist, the physician and the surgeon resulted in clearing the patient for the second surgery, it added.

The second surgery was prepared to be conducted on December 16, 1996 and a standard procedure was also followed during the first surgery but on the present occasion the condition of the patient deteriorated, the blood pressure fell and pulse became feeble. The cardiac respiratory arrest was noticed but despite the best efforts, the patient expired on December 23, 1996.

According to the appeal, an issue arose with regard to the payment of the balance medical bills and when the same was demanded the husband of the deceased, who was a union leader held a demonstration along with the workers at the hospital which resulted in a criminal complaint being filed against the hospital and also a magisterial enquiry was conducted.

Later the NCDRC held the treating doctor guilty and slammed Rs 17 lakh as compensation. However, the judgment of the consumer court was challenged and when the matter came up for hearing before the Supreme Court, the doctor and the hospital contended that the high risk involved in the second operation was made known to the patient and the cardiac arrest which occurred in the present case is likely to occur in certain cases for which appropriate care had been taken by the doctors.

The observation of the top consumer court relating to poor tolerance to anaesthesia was explained as not being a major issue in as much as the earlier operation was successful and was not eventful though anaesthesia had been administered in the same manner for the first surgery.

The Apex Court noted that the complainant before the NCDRC along with the doctor and the hospital authorities had filed their respective affidavits and no medical evidence was tendered on the behalf of the Complainant. The decision of the NCDRC was thus based on the affidavits and interrogatories.

However, the counsel for the Complainant submitted before the Apex Court that the patient had suffered cardiac arrest immediately after the anaesthesia was administered. It was further mentioned that the hospital didn't possess public address system or paging service and it resulted in the delay in securing the physician to attend and revive the patient.

After listening to the contentions of both the parties, the Apex Court observed:

"In every case where the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed that the medical professional was negligent. To indicate negligence there should be material available on record or else appropriate medical evidence should be tendered."

The top court bench noted that apart from the allegations made by the complainants before the NCDRC, there was no other medical evidence tendered by the complainant for indicating negligence on the part of the doctors who, on their own behalf had explained their position relating to the medical process in their affidavit to explain there was no negligence.

Further, the court also took note of the fact that the NCDRC had arrived at the conclusion based on the note by the surgeon which had mentioned that the patient was poorly tolerant to anaesthesia, and the doctor disregarded the observation without holding any discussion with any other anaesthesiologist and another specialist.

In this respect, the court observed that the diagnosis was not wrong and the allegations are founded upon the contentions that no care was taken despite the observation of the surgeon after the first surgery that the patient is poorly tolerant to anesthesia and the contentions that the patient's life was exposed to risk by advising and preparing for the second operation without sufficient gap after the first operation.

The top court bench noted aspects of the case including: "The matter as to whether in the background of the medical records, the manner in which the anesthetist had proceeded to administer the anaesthesia amounted to negligence could have been determined only if there was medical evidence on record. In the instant case it is not a situation that the diagnosis was wrong. The fact of both the kidneys requiring to be operated is the admitted position. The two aspects which are the foundation for allegation of negligence is that no care was taken despite the observation of the surgeon after the first surgery that the patient is poorly tolerant to anaesthesia. The second aspect is as to whether the patient's life was exposed to risk by advising and preparing for the second operation without sufficient gap after the first operation. Any of the shortcoming relating to infrastructure as mentioned in the report of the magisterial enquiry will become material only if the medical evidence is to the effect that the said two aspects were not the normal situation and that undertaking operation in such situation with reference to the medical condition of the patient was a high­risk procedure, the backup that ought to have been ensured and whether the medical equipments that were available at that point in time were sufficient."

Considering the above, the court observed:

"Without reference to the evidence, mere assumption would not be sufficient is the legal position laid down in the decisions referred above. Principle of res ipsa loquitur is invoked only in cases the negligence is so obvious," the court noted.

Further referring to the note mentioning that the patient was poorly tolerant to anaesthesia, the court observed,

"When it is shown that the earlier operation was uneventful, in the absence of any medical evidence brought on record to the contrary regarding the failure on the part of the doctor in taking any steps while administering anaesthesia for the second operation, the observation of poor tolerance in the case sheet by itself cannot be assumed as negligence."

"To arrive at the conclusion that there was negligence, the medical evidence to point out negligence in administering anaesthesia even in that situation was required to be tendered since the adjudicating authority is not an expert in the field of medicine to record an independent opinion," further noted the court.

The court also mentioned that the inquiry report by the magistrate cannot be treated as contra medical evidence to hold negligence on the part of the doctor and noted:

The apex court said that though in the second operation, the patient had suffered a cardiac arrest, the subsequent processes had been conducted and the patient had also been moved to the CCU whereafter the subsequent efforts had failed. The patient had breathed her last after a few days.

The bench further stated, "As already noted, there was no contrary medical evidence placed on record to establish that the situation had arisen due to the medical negligence on the part of the doctors," and took a note of the observations made by the NCDRC on the case and held:

"The opinion as expressed by the NCDRC is not on analysis or based on medical opinion but their perception of the situation to arrive at a conclusion."

The conclusion reached to that effect is purely on applying the legal principles, without having any contra medical evidence on record despite the NCDRC itself observing that the surgeon was a qualified and experienced doctor and also that the anaesthetist had administered anaesthesia to 25,000 patients and are not ordinary but experienced doctors.

Highlighting the importance of medical evidence in the case as proof of negligence, the bench said:

When there was no medical evidence available before the NCDRC on the crucial medical aspect which required such opinion, the mere reliance placed on the magisterial enquiry would not be sufficient. Though the opinion of the civil surgeon who was a member of the committee is contained in the report, the same cannot be taken as conclusive since such report does not have the statutory flavour nor was the civil surgeon who had tendered his opinion available for cross­examination or seeking answers by way of interrogatories on the medical aspects. Therefore, if all these aspects are kept in view, the correctness or otherwise of the line of treatment and the decision to conduct the operation and the method followed were all required to be considered in the background of the medical evidence in the particular facts of this case.

Thus, observing that the conclusion reached by NCDRC is not sustainable, the court further mentioned,

"Mere legal principles and the general standard of assessment was not sufficient in a matter of the present nature when the very same patient in the same set up had undergone a successful operation conducted by the same team of doctors.