Supreme Court: A Division Bench comprising of Hemant Gupta and A.S. Bopanna, JJ. absolved a doctor and a hospital of liability for medical negligence. The Supreme Court said that failure of treatment cannot automatically make the medical professional liable for medical negligence. It was observed:
“Every death of a patient cannot on the face of it be considered as death due to medical negligence unless there is material on record to suggest to that effect.”
Further, explaining that such cases may involve highly technical medical issues, the Court said that mere legal principles and general standard of assessment may not be sufficient. Additionally, the Court considered when can the principle of res ipsa loquitur be invoked in cases of medical negligence.
The instant was a case where the patient, set to undergo a surgery, suffered cardiac arrest after she was administered anaesthesia. Following is a comprehensive report of Supreme Court’s opinion on medical jurisprudence.
Facts and Appeal
One Jasbeer Kaur was admitted in Sun Flag Hospital, Faridabad, to undergo surgery. She was diagnosed with hydronephrosis, her right kidney was severely damaged and left kidney was also diagnosed with stone. On being declared fit for surgery, it was decided that both kidneys could not be operated simultaneously and the less affected, i.e. left kidney, would be operated first. An informed consent of high-risk surgery was obtained from the patient as well as her husband. The surgery on left kidney was a successful operation and patient’s condition improved.
Thereafter, the patient was taken for second surgery. Dr Harish Kumar Khurana administered Pentothal Sodium and Scolin as per the medical practice. An endotracheal tube was inserted in the trachea to give nitrous oxide and oxygen. This standard procedure was also followed during the first surgery but on this occasion, patient’s condition deteriorated, her blood pressure fell and pulse became feeble, cardiac respiratory arrest was noticed, she was put on Boyle’s machine and automatic ventilator. Despite this, the patient passed away.
Patient’s husband and children filed a complaint before the National Consumer Disputes Redressal Commission (“NCDRC”) alleging medical negligence. NCDRC found Dr Khurana and the hospital guilty and directed payment of Rs 17 lakh as compensation. Aggrieved, Dr Khurana and the hospital approached the Supreme Court.
Analysis and Observations
Summarising judicial opinion on the subject, including the decision in Jacob Mathew v. State of Punjab, (2005) 6 SCC 1 which laid down the ‘test’ for establishing medical negligence, the Supreme Court observed that:
“[It] is clear that 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.”
The Court said that to indicate negligence, there should be material available on record or else appropriate medical evidence should be tendered. In the instant case, apart from the allegations made by the claimants before NCDRC, no medical evidence was tendered to indicate negligence on the part of the doctor, who in fact explained his position relating to medical process to assert that there was no medical negligence. The Court said that conclusion reached by NCDRC appeared to be assumptive without the backing of medical evidence. Whether the manner in which Dr Khurana proceeded to administer anaesthesia amounted to negligence could have been determined only if there was medical evidence on record.
Informed consent of patient
The Court considered the aspect regarding consent for second surgery being taken only of patient’s husband and not the patient herself. On this, the Court noted that during the first surgery, consent of the patient as well her husband was taken. During the second surgery, the patient was recovering from the first surgery and the requirement for second surgery was informed to her. In that circumstance, informed consent was obtained from her husband.
Noting in case sheet
Rejecting NCDRC’s conclusion that Dr Khurana was negligent in not taking care of the noting in the case sheet regarding patient’s poor tolerance to anaesthesia, the Court noted that Dr Khurana was the anaesthetist during the first surgery as well and was thus aware about details of the patient to whom he had administered anaesthesia for the first surgery. The Court held that when it is shown that the earlier surgery was uneventful, in the absence of any medical evidence brought on record to the contrary regarding Dr Khurana’s failure in taking any steps while administering anaesthesia for the second surgery, the observation of poor tolerance in the case sheet by itself could not be assumed as negligence. It was observed:
“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.”
Res ipsa loquitur
Considering the applicability of the principle of res ipsa loquitur (things speak for themselves) to cases of medical negligence, the Court observed:
“The negligence alleged should be so glaring, in which event the principle of res ipsa loquitur could be made applicable and not based on perception. …
Principle of res ipsa loquitur is invoked only in cases the negligence is so obvious.”
The Court felt that observations contained in NCDRC’s order were in the nature of accepting every allegation made by the claimants as the only version and it was not weighed with the version put forth by the doctors. It was noted that the patient had undergone the same process of being administered anaesthesia for the first surgery which was successful. Though in the second surgery, the patient suffered a cardiac arrest, the subsequent processes with the help of Boyle’s apparatus were conducted and the patient was moved to Critical Care Unit, whereafter subsequent efforts failed. The patient breathed her last after few days. 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.
Mere legal principles not sufficient
The Court noted that NCDRC reached the conclusion that the appellants failed to clear the Bolam test purely on applying the legal principles, without having any contra medical evidence on record despite observing that the surgeon was a qualified and experienced doctor and also that the anaesthetist had administered anaesthesia to 25,000 patients.
The Court opined that the aspect of poor tolerance to anaesthesia and what should be the gap between the two surgeries was a highly technical medical issue which was also dependant on the condition of the patient in a particular case, which required opinion of an expert in the field. There was no medical evidence based on which conclusion was reached with regard to medical negligence. The Supreme Court observed:
“[M]ere 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.”
Magisterial enquiry report
The claimants had also filed a criminal complaint against the appellants, pursuant to which a magisterial enquiry was conducted. NCDRC placed much reliance on this enquiry report, which according to the Court could not be treated as contra medical evidence as compared to the evidence tendered by the appellants. It was observed:
“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 cross-examination or seeking answers by way of interrogatories on the medical aspects.
Decision
In such view of the matter, the Supreme Court held that NCDRC’s decision could not be sustained. The appeal was accordingly allowed. [Harish Kumar Khurana v. Joginder Singh, 2021 SCC OnLine SC 673, decided on 7-9-2021]
Another contradictory judgement . Supreme Court contradicts itself once again. In the Kunal Saha case, Supreme Court held that Evidence Act does not apply to consumer proceedings and what constitutes medical negligence in civil proceedings before a Consumer Court stands on completely different pedestal to criminal proceedings in a criminal court wherein the burden of proof on the complainant is much higher.
In this instant case, the Expert Opinion of the Civil Surgeon who had concluded negligence in treatment has not been given weightage on ground that he was never cross examined. As per Kunal Shah’s case, cross examination of expert is not mandatory in consumer proceedings.