Non availability of Doctor, OT not Medical Negligence: Supreme Court

Such observations came from the top court bench comprising of Justices Hemant Gupta and V. Ramasubramanian while considering a case where a patient diagnosed with aorta aneurysum had died despite two operations and the family of the patient had alleged that there were negligence on the part of the treating doctor as he was absent for his abroad trip. In fact, the hospital was also held guilty since the DSA machine was not working and the operation theatres were not vacant when the patient required them.

"It is too much to expect from a doctor to remain on the bed side of the patient throughout his stay in the hospital which was being expected by the complainant here," the top court noted on Tuesday.

"No fault can be attached to the Hospital if the operation theatres were occupied when the patient was taken for surgery. Operation theatres cannot be presumed to be available at all times. Therefore, non-availability of an emergency operation theatre during the period when surgeries were being performed on other patients is not a valid ground to hold the Hospital negligent in any manner," further read the judgment.

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The case goes back to 1998 when the patient was admitted to the hospital and the treating doctor, a vascular surgeon had admitted the patient as an urgent case of aorta aneurysum and advised an urgent DSA/CAT Scan [Digital Sub-Traction Angiography and Computerized Axial Tomography] and surgery.

After examining the patient, the doctor recorded that there were ischemic changes in both lower limbs and also noted an impending gangrene. Subsequent to the pre-operative preparations, surgery was conducted on 23.04.1998 by a team of surgeons led by the treating doctor.

The complainant alleged that even though the condition of the patient was not good, the doctor didn't visit the patient on time, came late and advised a second DSA test but since the machine was out of order, he advised an angiography. However, the patient was made to wait for both the tests and later one doctor examined the patient and reported that the patient probably had developed block of abdominal aorta.

The angiography revealed that there was a block (clot) at the graft due to which blood supply to the lower limbs had totally stopped. Thus, it had been contended on the behalf of the complainant that the earlier surgery was not conducted correctly and there was negligence.

Following the angiography, even though it was decided that the earlier surgery would be re-explored, the patient could only be taken to the operation theatre for re-grafting later. A fresh graft was sutured and the patient was shifted to recovery room and put on ventilator.

Even though a doctor had the charge of keeping the patient under observation constantly, he allegedly came to examine the patient after 16 hours and that is why, it couldn't be noted that no blood was flowing throughout the graft. Due to this, amputation of the legs was delayed and resultantly, the patient ultimately breathed his last, the complainant alleged.

On the other hand, the hospital claimed that the patient was under the best possible team of doctors and they left no stone unturned in the treatment procedure.

When the case came to be considered before NCDRC, the commission had directed the hospital and treating doctor to pay a sum of Rs 14,18,491/- along with interest @ 9% p.a. from the date of filing complaint.

NCDRC while analyzing evidence had noted that even though the complainant had filed evidence affidavits, the Hospital and the doctors have not filed any such thing except for their written versions.

However, referring to such observations made by the NCDRC, the top court noted, "We however find at the outset that such primary observation is itself erroneous…The Commission has overlooked the fact that written version is by way of an affidavit…Thus, there is factual error in the order of the Commission."

The top court further noted that the Commission had commented adversely against the Doctor that he had not seen or attended the patient before his abroad tour. NCDRC had opined that considering the conditions in India, it is very difficult to secure the presence of an expert doctor to file an affidavit against another expert doctor and thus it would be a case of res ipsa loquitor.

The hospital in its affidavit had argued that DSA test was not a bed side test and for this, the patient needs to be shifted carefully and become stabilized for undergoing DSA test. However, when the patient was taken at last, the DSA machine developed some complications and that is why angiography had to be conducted.

The top court noted that the NCDRC had held the doctor negligent because of two reasons- he didn't attend the patient while he was in Mumbai and also when he went abroad.

"We do not find that the basis of finding the Doctor negligent in providing medical care is sustainable as there are both legal and factual errors in the findings recorded by the Commission," noted the Supreme Court.

It was observed by the top court that the patient had delayed in consulting the doctor, who had advised for immediate Aneurysmectomy in view of the impending gangrene. "Therefore, gangrene was not found to be impending after few days of admission to the Hospital but even before the patient was admitted," opined the court.

"Further, the non-working of the DSA machine and consequent delay in performing the test cannot be said to be negligence on the part of the Doctor or the Hospital. The DSA machine is a large, expensive and complicated machine which unfortunately developed certain technical problem at the time when patient had to be tested. Any machine can become non-functional because of innumerable factors beyond the human control as the machines involve various mechanical, electrical and electronic components. The DSA test was conducted in the Hospital on 22.4.1998 and hence DSA machine cannot be said to be dysfunctional for a long time. The alternative process to determine the blood flow was carried out by angiography and the decision for re-exploration was taken at 12.30 p.m," noted the court referring to the contention of the complainant regarding the non working DSA machine.

At this outset, the court also observed,

"No fault can be attached to the Hospital if the operation theatres were occupied when the patient was taken for surgery. Operation theatres cannot be presumed to be available at all times. Therefore, non-availability of an emergency operation theatre during the period when surgeries were being performed on other patients is not a valid ground to hold the Hospital negligent in any manner."

Further going through the case details minutely, the court observed,

"It is to be noted that it is not the case of the complainant that Doctor was not possessed of requisite skill in carrying out the operation…There is no proof that there was any negligence in performing the surgery on 23.4.1998 or in the process of re-exploration on 24.4.1998. The allegation is of failure of the Doctor to take the follow-up action after surgery on 23.4.1998, a delayed decision to amputate the leg subsequent to re-exploration on 24.4.1998, and the alleged undue foreign visit of the Doctor."

"In respect to such contention of the Doctor being on a foreign visit, it is well known a medical professional has to upgrade himself with the latest development in his field which may require him to attend conferences held both in and outside the country. Mere fact that the Doctor had gone abroad cannot lead to an inference of medical negligence as the patient was admitted in a hospital having specialists in multi-faculties," the court noted

The top court noted that even though the doctor had left for abroad, qualified PG doctors along with other experts were monitoring the patient continuously.

"The experts in the other fields have been consulted from time to time and the treatment was modulated accordingly. In spite of the treatment, if the patient had not survived, the doctors cannot be blamed as even the doctors with the best of their abilities cannot prevent the inevitable," noted the court.

"It is a case where the patient was in serious condition impending gangrene even before admission to the Hospital but even after surgery and re-exploration, if the patient does not survive, the fault cannot be fastened on the doctors as a case of medical negligence. It is too much to expect from a doctor to remain on the bed side of the patient throughout his stay in the hospital which was being expected by the complainant here. A doctor is expected to provide reasonable care which is not proved to be lacking in any manner in the present case," further read the judgment.

Opining that the principles of res ipsa loquitor would not be applicable as the Hospital had provided the treatment record, the court noted,

"There was never a stage when the patient was left unattended. The patient was in a critical condition and if he could not survive even after surgery, the blame cannot be passed on to the Hospital and the Doctor who provided all possible treatment within their means and capacity."

"No doctor can assure life to his patient but can only attempt to treat his patient to the best of his ability which was being done in the present case as well," further noted the bench.

Therefore, opining that the judgment of the NCDRC- holding the hospital and doctors guilty of medical negligence- was not sustainable in law, the top court set aside the previous order and dismissed the complaint.

"By virtue of an interim order passed by this Court on 8.3.2010, a sum of Rs. 5 lakhs was disbursed to the complainant. The said amount is ordered to be treated as ex gratia payment to the complainant and not to be recovered back by either the Hospital or the Doctor," the top court clarified.

To read the court order, click on the link below.