NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
Mrs. Shantaben Muljibhai Patel
And others … Complainants
Breach Candy Hospital and
Research Centre & others … Opposite Parties
HON’BLE MR. JUSTICE M.B. SHAH, PRESIDENT
MRS. RAJYALAKSHMI RAO, MEMBER
For the Complainant : Mr. Joseph Pookkatt,, Advocate with
Mr. Arun Menon, Advocate
For Opposite Party No.1 : Mr. Rajiv Shakdhar, Advocate with
Mr. Madhup Singhal, Advocate
For Opposite Party No.
2 and 3 : Mr. S. K. Bhattacharya, Advocate
The wife and two sons of the deceased, Mr. M. M. Patel who died in Breach Candy Hospital have filed this complaint on alleged ground of negligence by the hospital staff of Breach Candy Hospital, Opposite Party No.1, and improper treatment administered by Dr. Bhattacharya, Surgeon (Opposite Party No. 2) and Dr. (Mrs.) Mahatre, Anaesthetist (Opposite Party No. 3). The claim is for a sum of Rs.1,02,00,000/- for the unfortunate death of the patient, i.e. Rs.2,50,000/- towards the hospitalisation charges; Rs.25,000/- for funeral expenses; Rs.90,00,000/- for losses arising out of disruption of business/occupation of the deceased and that of the Complainant; Rs.9,00,000/- for loss of consortium of the deceased with the Complainants and the family members numbering 18 who are deprived of his company at Rs.50,000/- per member; and Rs.25,000/- for legal expenses.
Apart from the fact that there is no evidence for deficiency in service rendered by Opposite Party Nos. 2 and 3, it apparent that the entire claim is exaggerated. Before we discuss the evidence, we would narrate what is stated in the complaint.
Some part of statements made in the complaint:
It is stated that :
.(a). the deceased developed cough with mucoid expectoration with breathlessness; he had a history of by-pass, Mitral valve replacement and complications arising out of a difficult intubation which was conducted in 1988. Since Mr. M.M.Patel, husband of the Complainant, was under the treatment of Dr. R.D. Karnik pursuant to the hospitalization in 1988, he consulted Dr. Karnik on his ailment in 1996. Dr. Karnik thereupon advised him to undergo a 2D Echo test with colour Doppler study. The colour Doppler Study showed damage of the mitral valve and hence Dr. Karnik advised early surgery after angiography;
(b) on 1.11.1996 Mr. Patel was admitted to the Bombay Hospital to get the angiography done by Dr. Karnik. Mr. Patel was discharged without any complications upon the successful completion of angiography;
(c ) on the basis of angiography the daughter and the son-in-law of the deceased consulted Dr. Bhattacharya as the investigation showed damage of replaced mitral valve. Deceased was advised to repeat surgery for mitral valve which was replaced in August, 1988 and also a by-pass surgery;
(e) the complainants and their deceased father were lulled into a sense of security and belief that no complications would arise during operation. In view of this, they agreed to have the operation conducted by Dr.Bhattacharya who informed them that the date of surgery in Breach Candy Hospital was scheduled on 2.12.1996 and directed the deceased to get himself admitted on 31.11.1996. However, Dr. Bhattacharya had failed to undertake any pre-operative assessment of the patient after the patient’s admission to the hospital;
(h) on 2.12.1996 Mr. Patel was taken to the operation theatre without the anaesthetist taking any pre-operative round and Dr. Bhattacharya not being present. Further Dr. Dasgupta was not consulted. In fact, the deceased before being wheeled into the operation theatre was on the Endotracheal Tube and on artificial respiration in the Surgical Intensive Cardiac Care Unit (hereinafter referred to as the SICCU).
(j). that when Dr. Bhattacharya was reminded about the previous difficult intubation and postponement of surgery he assured the complainants that he was very well aware of his duties and that he would take proper post-operative care of the patient in SICCU. He also promised to inform the anaesthetist about the same. During the surgery the size of previous tissue valve used for mitral valve replacement was not confirmed and hence Dr. Anil Mali, the son-in-law of the patient, was advised to bring the complete personal file of medical records of the patient which was handed over to the sister-in-charge of operation theatre, which was not returned later. However, the nurse’s records/Daily history notes as are available with the petitioner are annexed with the complaint.
(k) In spite of donating 10 units of blood on 29-11-1996 and 30-11-1996 prior to surgery, the complainants were not informed that 2 bottles of blood could not be used for transfusion because of high bilirubin in blood and the complainants were kept in the dark and at the last minute made to run for 2 units of blood. The respondents seemed oblivious of normal practice and precautions associated with such complicated and major operations like the present one. Furthermore, 24 hours blood Bank facility to bleed and cross match the patient’s blood and further to provide fresh frozen plasma was not available, and no alternate arrangements were made to collect blood from outside blood banks or major hospitals despite the doctors being aware of the loss of blood which were attendant with such operations.
(m ) the fact that Mr.Patel had extubated himself was noticed by the staff of the SICCU at a later stage and upon noticing the commotion, his daughter, Dr. (Mrs.) Sandhya Mali, who was incidentally waiting outside the hospital’s SICCU, came to know of the incident. She immediately raised an alarm on seeing her father in that condition. Despite the fact that the job of an anaesthetist is highly specialized no residential house anaesthetist has been appointed by the Breach Candy Hospital and during an emergency an outside anesthetist is called. Given the history of difficult intubation of the patient housed in the SICCU, the hospital should have taken the necessary precautions by having a residential anesthetist readily available. As a result, after Mr. Patel had extubated himself, the house physician, not an anaesthetist, was attempting endotracheal intubation on the patient with a cuffed portion endotracheal tube No. 9 as he was unaware that No. 6 tube was to be used as the same had been used in 1988 for a successful intubation.
(o ) that by the time outside help could be sought and a working ventilator could be brought to the SICCU, the patient Mr.Patel was brain dead. Thereafter on 4.12.1996 at about 11.30 p.m. Mr. Patel expired.
In the grounds also it is stated that :
(1) even at the critical juncture when the patient was found to be in an extubated condition, the endotracheal Tube was not available at the SICCU of Breach Candy Hospital; there was no face mask; no endotracheal tubes; no tracheostomy tray; no laryangeal mask; no working respirator to connect and to resuscitate the patient at that point of time. These facts were noticed by Dr. (Mrs.) Sandhya Mali, who was present during the whole event in the SICCU.
(2) there was, inter-alia, the following negligence at the Breach Candy Hospital where the patient was kept after the operation :
(i) Inefficient surgical ICCU in Breach Candi Hospital;
(ii) No resident anaesthetist in surgical ICCU;
(iii) No resident cardiac surgeon in ICCU;
(iv) Lack of basic apparatus/instructions required to resuscitate the patient on ventilator were not available in surgical ICCU especially considering that only critically ill patients needing constant observation are admitted to the SICCU;
(v) Further the lack of Face masks, endotracheal tube without cuff, tracheostomy tray, laryngeal mask and working respirator all point to the deficiency of service and the utter callous attitude in the way the hospital was maintained;
(vi) Further no trained resident staff nurse were kept on duty to help during resuscitation of the patient; and
(vii) No adequate staff nurse for individual patient in SICCU was ensured for providing intensive nursing care for the individual patient who are in critical condition in the SICCU.
(viii) No basic resuscitative equipment to revive the patient.
(3). Mr. M. M. Patel expired in the SICCU because of extubating (removal of the endotracheal tube) himself which should not happen in a place like Surgical Intensive Cardiac Care Unit where the patients are to be closely monitored and care taken to ensure that they are constantly observed.
Submissions of Complainant at the time of hearing:
(a) At the time of hearing of this complaint, learned counsel Mr.Joseph Pookkatt, for the complainant confined his submissions only with regard to extubation and the consequent death of patient.
(i) There was negligence on the part of the concerned nurse, otherwise the deceased would not have extubated voluntarily and this could not have been allowed to happen under any circumstances.
(ii). The patient’s struggle with the endotracheal tube was not noticed by the nurses;
(iii). The obvious respiratory and breathing problems pursuant to extubation or just prior to the extubation, was not attended to;
(iv). The fact that the patient was conscious and uncomfortable was not noticed by the staff at the SICCU;
(v). The very fact that the patient became conscious clearly illustrates that right amount of the sedation was not administered to the patient.
(vi). To avoid patients from self-extubating themselves, it is the normal practice that the patient’s hands are tied to the bed. The lack of monitoring is further clearly evident from the fact that the staff failed to notice that the patient was conscious and had failed to take preventive action to ensure that self-extubation did not happen.
(b) It is submitted that when the incident occurred there was no standby anaesthetist on call in the SICCU. By the time Dr. Jain who was called from outside the hospital, the patient’s brain was dead. This is once again an obvious illustration of the deficiency of service and negligence of the hospital and its entire staff.
Learned counsel for the complainant, in his final written submissions tendered on 15.9.2004 repeated the aforementioned contentions and also submitted that Dr. Sandhya Mali (daughter of the deceased who herself is an anaesthetist) has rebutted the statements made by the nurse and doctors of Breach Candy Hospital.
It is submitted that the previous history of difficult intubation by the said patient was made known to the Doctors and the hospital staff. Dr. Sandhya Mali had clearly stated that the hospital staff and the doctors were made aware of the previous history of difficult intubation of her father.
Now we would refer to relevant part of evidence brought on record:
(a). At the outset we would say that the learned Counsel admits from the evidence on record that it would be difficult to say that there was deficiency in service by two doctors namely Dr. Bhattachrya and Dr. (Mrs.) Mahatre.
Further, that though a number of grounds are mentioned in the complaint, the learned counsel for the complainant confined his arguments only to one ground, namely, that there was no proper care taken by the concerned staff and the Nurse in preventing the deceased from self extubation. There was no trained doctors who could immediately intubate the patient in such circumstances.
(b) Secondly, as per the medical litureature, ‘Critical Care’, authored by Joseph M. Civetta, Robert W. Taylor and Robert R. Kirty, which is brought on record, it is found that:
(i) between 8.5% and 13% intubated patients, critically ill patients sustain unplanned (accidental) extubation;
(ii) insertion of a tracheostomy involves a surgical procedure with a reported mortality as high as 5% and potentially lethal complications such as erosion of the brachiocephalic artery; and
(iii) the role of tracheostomy in airway management of a critically ill patient remains controversial.
(c). Now, we would just refer to the affidavit of Dr.Bhattacharya who performed the by-pass surgery:-
“That some time in the year 1988 the patient came up with multiple coronary artery blocks and also had mitral regurgitation. He required multiple bypass grafting Left internal mammary to LAD and saphenous vain grafts to O.M. ( large branch of circumflex) and posterior descending branch of right coronary artery. He also had mitral valve replacement with biological prosthesis (tissue valve) the life of which is about 8 to 10 years. He was operated by me at the Breach Candy Hospital and the surgical operation was performed by me successfully on the patient some time in July, 1988 and the post operative care treatment was given to him in the Breach Candy Hospital meticulously.
I state and submit emphatically and categorically that the entire operation which lasted for nearly more than six hours at that time was very well explained to the patient prior to the surgery and each and every consequence that might possibly arise was also explained to the patient as is the normal practice. Further more it was also explained to the patient prior to surgery that life of the tissue valve is limited to 8 to 10 years. Tissue valve was used as during those years it was considered safe for patient with hyper tension as these valve do not require anticoagulants and therefore practically no risk of bleeding in the brain. …….
Dr. Mhatre who was Lecturer in Anaesthesia in B.K. Nair College from 1977 to 1983 and from 1983 to 1989 was working as full time consultant Anaesthetist in Jaslok Hospital; Bombay before starting her own practice, successfully in the very first attempt introduced the endotracheal Tube No. 9 which is the most ideal one for a male patient and was quite surprised that such hue and cry was made in the first instance. In any case, she clearly in her notes wrote on the case history that it is difficult intubation for warning every one that in case the tube comes out that one would find it difficult to introduce the tube and also that in case of extreme emergency small tube of any size can be used. Further more by writing difficult intubation she emphasized the need for the tube to be in position all the times and only when patient is not required to be intubated again should be extubated. In the instant case the patient extubated so swiftly and suddenly that Dr. Mangal Jain, MD, FCCP and Consultant Cardiologist having best experience of looking after only ICU patients found it difficult to intubte despite best of care and attention, expertise and immense experience.
It is pertinent to mention that at no stage had the complainant mentioned non-attendance by the doctors in I.C.U. or non-availablity of doctors in I.C.U. Hospital I.C.U. staff including doctors properly attended the patient as they were inside the I.C.U. while the patient’s daughter was outside the I.C.U.
That I state and submit that it has been my practice that after the patient is discharged to advise him about the needs to have constant check up every year which the patient never did as he was doing very well. It may not be out of place to mention that it is my general practice to remind the patient the need to come up for check up and in this case I had sent a message to his son-in-law Dr. Anil Mali but of no avail. However, the patient met me some time in the year 1995 when he was categorically told to have a repeat surgery done but unfortunately the patient did not pay any heed to it, instead was quite philosophical in telling that he had lived his life and the need for further operation is not necessary. In the year 1996 when the patient was going into repeated heart failures which necessitated admission and stepping up of anti-failure measures regular diurectries and cardio tonic medicines; Dr. Anil Mali and his daughter Dr. Mrs. Sandhya Mali visited me and expressed their concern about the deteriorating heart condition. They were advised to have a repeat angiography done which was mandatory and thereafter they came with Angiography film to me. When the patient was catheterised the patient’s heart function had already deteriorated to 15% ejection fraction (pumping efficiency) and two of his saphenous vain grafts were blocked and the internal mammary artery was widely patent. The patient had also extreme advancement of other coronary blockage due to further deposit of chlorestrol and fat into the native circulation of the heart. The biological mitral valve had also degenerated and was leaking. The patient was alive only on his functioning of his internal mammary graft with hardly any native circulation.
The patient was advised repeat grafting and replacement of mitral valve. He was explained that this is a very high risk case.”
In his cross-examination dated 17.8.2002 Dr.Bhattacharya stated that the patient came with 100% blockage in 3 major vessels, he also came with biological valve which had degenerated and his ejection fraction was 15% and lower, this was explained to the patient. In a post-operation period the death is pronounced as unnatural because it is after the surgery.
This evidence establishes that the deceased was having multiple coronary heart blockage for which he was operated in 1988 when mitral valve was replaced. Patient was informed to have regular check up, but he met the Doctor only in the year 1995 and had not headed the advice of the Doctor by philosophically stating that he had lived his life and further operation was not necessary. In 1996 it was noticed that the heart functioning had deteriorated to 15% ejection fraction (pumping efficiently) and two vein grafts were blocked and was having extreme advancement of coronary blockage. The second operation was also performed successfully.
The aforesaid averments of a cardiologist leaves no doubt that there was no negligence on the part of the doctors in performing operation. In 1988, deceased was operated in the same hospital and he was informed that the life of the tissue valve was limited upto 8 to 10 years. In 1988 there was some difficulty to intubate the patient during first operation but in the second operation Dr.Mahatre introduced endotracheal Tube No. 9 at first instance. Therefore, there is no negligence on the part of respondent No. 3 Dr. Mahatre. It is also clear that Mr.Patel’s was a high risk case.
(d) Further, Dr.Sandhya Mali herself admits that once the patient is handed over to the intensivist after the operation they have to do the work of looking after the patient. The post operative care is always taken by the hospital. It was done under Dr. F.Udwadia who is a renowned cardiologist of India and is in-charge of the Breach Candy Hospital. In cross-examination Dr.Mali has admitted that Dr.Bhattacharya has operated her father in 1988 and thereafter there was no problem prior to 1996. She has admitted that in 1994 they had approached Dr.Bhattacharya and he had advised angiography, but they did not get it done then. No angiography was done in the year 1994. In 1996 Dr.Karmik advised angiography as her father had breathlessness and cough. Second operation was performed by Bhattacharya successfully. Dr.Bhattacharyya was taking post-operation rounds. She has also admitted that apart from anaesthetist, ENT surgeon are the persons who do the work of intubation; all the surgeons can do intubation; there are intensivist who can also do the intubation; specialists can intubate; even the para-medical staff can do if they are trained. From the hospital record she found four organs of Mr.Patel have failed. And, therefore, he was kept on respirator for a longer period. She has also admitted that the blood pressure will further fall if sedative is given.
(e). As stated above, since arguments are confined only to deficiency in service by hospital staff in not taking proper precaution of overseeing that there is no extubation and thereafter not immediately intubating, we would refer to relevant part of the evidence.
(i). Firstly, it is to be stated that extubation took place at 10.30 p.m. It was noticed immediately by the nurse Ms.Lavina Danta. It is her say that she along with the senior nurse settled the patient and while she was emptying the urine bag, she heard the alarm and found that Mr.Patel had extubated himself. The Senior Nurse had also rushed in. Dr.Kadam and Dr.Vaid came there immediately and tried to intubate the patient. As the relatives of the patient are not allowed to interfere with the treatment, the patient’s daughter, Dr.Mali was not permitted to intervene. At that stage, BP dropped down to 50:20 MM, pulse was not felt and there was cardiac arrest.
(ii). Similar is the say of Senior Nurse, Ms.O.Fernandes. She also stated under:
“When I took over the ward from the day staff – it was handed over to me that Mr.M.Patel was haemodynamically unstable; had pulmonary oedema which was related to his poor pump, function in view of the fact that his BP required high inotropic’s support basically related to poor compliance; and anitarrythmic drugs were in progress due to ventricular tachycardia. Cardiac monitor showed sinus tachycardia with occasional verntricular ectopics.
At 10.30 p.m. patient was settled by me and the nurse who was assigned to look after the patient.
Thereafter, when the nurse was emptying the urine bag the respirator alarm rang and the bell from the room. So, I rushed into the room and saw that the patient had extubated himself. I took over the ambueing from the assigned Nurse and asked for to inform the ICU duty Doctor.
Dr.Umesh and Dr.Baid came immediately and tried intubating the patient.
Meanwhile I informed Dr.Bhattacharya, Dr.Trivedi, Dr.Mhatre and Mr.M.Jain also. After some time the patient’s daughter walked into the room and saw us trying to intubate him. Dr.Deepak Baid requested her to wait out of the room and did not allow her to intubate, so she started abusing all who were present in the room.
Meanwhile the BP 50/20 mm of Hg. Pulses not felt. Patient went into cardiac arrest. External cardiac massage and all resuscitative measures carried out with no effect. Repeated attempts of endotracheal intubation by Dr.Umesh and Dr.Mangal Jain failed.
Patient was then intubated with a 6.5 size endotracheal tube by Dr.Rashmi Raja. Cardio respiratory resuscitative measures continued with no effect. In spite of all the resuscitative measures the heart did not revive and the patient was declared dead at 1130 p.m.
(iii) Thereafter there is evidence of Dr.Mangal Jain, who joined the Opposite Party No.1 as senior ICU Registrar and later elevated to the post of clinical associate and intensivist till 1995. It is his say that invasive procedures including endo-tracheal intubations have been done by him in thousands. It is his say that :-
“On 4.12.1996 I was on my evening round in hospital (I usually come for round after finishing my consultations) where I got the message to rush to the SICU as there was some emergency. On my arrival I saw that Dr. Kadam was trying to intubate Mr. M. M. Patel in room No. 403. He informed me that accidentally tube has slipped out, and because of short neck and anteriorly placed larynx, he was finding it difficult to intubate.
Patient was breathing shallow with increase in pulse rate and slight cyanosis. I saw ventilator alarm making noise and emergency trolly ready there.
I tried to intubate the patient but was finding it difficult, as I could not see opening of the trachea. Mean while Dr.Rashmi Raja, Anesthetist of Dr. Bhattacharya walked in and I handed over Laryngoscope and tube to her.
She intubated the patient within a minute or two. Our ICU doctors and nurses continued the resuscitating efforts.
I would like to mention that our ICU doctors and nurses are fully trained in dealing with this kind of emergencies. We take regular teaching classes for our nurses. Doctors are also fully trained in all invasive procedures. In fact we run critical care training programme for post graduate students where candidates come from all over the country.”
(iv). Dr.Mhatre has also stated that the post operative rounds were taken not only by Dr.Bhattacharya and his three associates, but also by her, and continuously the information was exchanged. She took rounds daily in the morning and also at about 3.30 p.m. in the evening. It is her say that the three associates of Dr.Bhattacharya who are all M.S. and MCh also took rounds and attended the ICU.
She emphatically stated that not only she was aware but also had explained to the patient as well as the relatives as also all the doctors and the nursing staff in the ICU about the difficult intubation in the year 1988 and as an abundant caution wrote in the daily history notings as difficult intubation and bordered it in order to forewarn everyone.
(v) It is in evidence that Dr.Kadam, Dr.Vaid and Dr.Mangal Jain failed to intubate lesser size of tubes despite repeated attempts and trying serially.
This cannot be termed as either negligence or deficiency in service. The patient was on ventilatory support system with all organs having failed and during the last stages had shallow respiratory effort and was wholly uncooperative which made the intubation difficult till the time the death occurred.
(vi). With regard to further sedation Dr.Bhattacharya in his affidavit has stated that the patient was coming off the sedation; he himself was very well aware of the possibility of difficult intubation, was personally given strong suggestions in the afternoon by at about 4.00 p.m. by him. At the same time, there was not much reason on their part to heavily sedate him as this would cause further fall in B.P. of a critically sick heart and further delay the reversal of the sedative and delay the intubation.
We may also quote the relevant part of cross-examination of Dr.Sandhya Mali on this aspect which is as under:
“Blood pressure will further fall if sedative is given”.
(vii). Further it is pointed out that Breach Candy Hospital is a recognised institute for Cardiac care and Dr.Udwadia is a recognised teacher for imparting certificate course by ISCCM in critical care. Dr.Udwadia who is an MD, FRCP, FAMS, FCCP and has working experience of about 40 years. He is the Honorary Senior Consulting Physician at Breach Candy Hospital and is in-charge of Intensive Care Unit of the Breach Candy Hospital. He has been Hon. Professor of Medicine at the Grand Medical College from 1959 to 1989 and is now Professor Emeritus at Grant Medical College and J.J.Group of Hospitals affiliated to University of Bombay.
Post Mortem Report:
Relevant column of 20 of Post Mortem Report is as under:
(a) Walls, ribs, cartilages
Sternum cut and sutured surgical in midline.
Left pleura opened surgically.
(c) Larynx, Trachea and Bronchi
(d) Right lung
(e) Left lung
Pericardium surgically opened
(g) Heart with weight
E/o Bypass on the heart seen.
(h) Large vessel
Areas of fresh infarction over the anterior wall of left ventricle of size 3 cm x 2 cm. Aorta athereseleresis seen.
Finally cause of death is Pulmonary and cerebral oedema with coronary artery disease in an operated case of bypass surgery (Unnatural).
It is pointed out that due to congestion of trachea intubation becomes difficult. Further sub-column (h) it is mentioned areas of fresh infarction over the anterior wall of left ventricle of size 3 cm x 2 cm. Aorta athereselerersis seen.
Some relevant decisions on the issue of medical negligence:
It is to be accepted that every surgical operation involves risk. When a person who is ill and is going to be treated in a hospital no matter what care is taken, there always exists some risk. Simply because a mishap had occurred, neither the hospital nor the doctors cannot be made liable. A doctor is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art.
A doctor or a hospital is expected to take reasonable care in administration of the treatment. They cannot be condemned in case of misadventure.
It is also to be remembered that medical negligence is a complicated subject and the liability of Doctor always depends upon the circumstances of a particular case.
In Poonam Verma Vs. Ashwin Patel & Ors, (1996) 4 SCC 332, the Apex Court held that negligence as a tort is the breach of a duty caused by omission to do some thing which a reasonable man would do, or doing something which a prudent and reasonable man would not do.
Therefore, the whole concept is performing or not performing an act which a prudent and reasonable man would perform or not perform. It again depends, in the case of a profession, upon the skill which is expected from such persons. The Court in the above said case referred to the decision in Bolam Vs. Friern Hospital Management Committee, 2 All ER 181, which we have referred to hereinafter.
The Court also referred to the decision in Laxman Balkrishna Joshi (Dr.) Vs. Dr.Trimbak Bapu Godbole, AIR 1969 SC 128 and held that a doctor when consulted by a patient owes him certain duties, namely, (a) a duty of care in deciding whether to undertake the case; (b) a duty of care in deciding what treatment to give; and (c) a duty of care in the administration of the treatment. A breach of any of these duties gives a cause of action for negligence to the patient.
The learned counsel for the opposite parties contended that if such frivolous complaints are entertained efficient administration of hospitals will suffer. He referred to relevant parts from Taylor’s Principles and Practice of Medical Jurisprudence – Thirteenth Edition, on the subject medical negligence, which is as under:-
“Medical negligence is a complicated subject and the liability of the doctor will always depend upon the circumstances of the particular case. The injury to the reputation of a member of the medical or dental profession resulting from a finding of negligence can be very serious indeed and this is appreciated by the Courts. In his summing up to the jury in the action of Hatcher v. Black and others, (1954) Times, 2nd July, the trail judge said:
“In the case of an accident on the road, there ought not to be any accident if everyone used proper care and the same applies in a factory; but in a hospital, when a person goes in who is ill and is going to be treated, no matter what care you use there is always some risk. Every surgical operation involves risks. It would be wrong, and indeed bad law, to say that simply because a misadventure or mishap occurred, thereby the hospital and the doctors are liable. Indeed it would be disastrous to the community if it were so. It would mean that a doctor examining a patient, or a surgeon operating at a table, instead of getting on with his work, would for ever be looking over his shoulder to see if someone were coming up with a dagger. For an action for negligence against a doctor is for him like unto a dagger. His professional reputation is as dear to him as his body, perhaps more so, and an action for negligence can wound his reputation as severely as a dagger can his body. You must not, therefore, find him negligent simply because something happens to go wrong, as for instance, if one of the risks inherent in an operation actually takes place or because some complications ensue which lessen or take away the benefits that were hoped for, or because, in a matter of opinion, he makes an error of judgment. You should only find him guilty of negligence when he falls short of the standard of a reasonably skilful medical man. In short, when he is deserving of censure – for negligence in a medical man is deserving of censure.
In the case of Roe and Woolley v. The Ministry of Health and An Anaesthetist, (1954) 2 All ER 131, which went to the Court of Appeal, it was held that neither the anaesthetist nor any other member of the hospital staff had been guilty of negligence and when delivering his judgment Lord Justice Denning said:
“Every surgical operation is attended by risks. We cannot take the benefits without taking the risks. Every advance in technique is also attended by risks. Doctors, like the rest of us, have to learn by experience; and experience often teaches in a hard way.”
Finally, it is observed that vital question is always whether the practitioner exercised reasonable skill and care in the circumstances. The circumstances inevitably vary from case to case.
In Bolam v. Friern Hospital Management Committee, (1957) 2 All ER 118 the Court was required to deal with a case where plaintiff was suffering from mental illness and the consultant advised to undergo electro–convulsive therapy. There was evidence that in such therapy there was a risk of fracture. That may be small namely one in thousands. On second occasion when treatment was given the Plaintiff sustained fractures. No relaxant drugs or manual control were used but a male nurse stood on each side of the treatment couch throughout the treatment. It was admitted that use of relaxant drugs would have excluded the risk of fracture. Proceedings were initiated for damages.
The medical evidence showed that competent doctors held different views on desirably of using relaxant drugs and restraining the patient’s body by manual control and also on the question of warning a patient of the risk of electro conversant therapy. Justice Mc Nair observed that in the case of medical man negligence means:-
“in the case of a medical man negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. This is a perfectly accurate statement, as long as it is remembered that there may be one or more perfectly proper standards; and if a medical man conforms with one of those proper standards then he is not negligent. Counsel for the plaintiff was also right, in my judgment, in saying that a mere personal belief that a particular technique is best is no defence unless that belief is based on reasonable grounds. That again is unexceptionable.”
“A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.”
“The Court of Appeal took the same view, and one finds this in the judgment of DENNING, L.J. (ibid, at P.137) :
“If the anaesthetists had foreseen that the ampoules might get cracked with cracks that could not be detected on inspection they would, no doubt, have dyed the phenol a deep blue; and this would have exposed the contamination. But I do not think their failure to foresee this was negligence. It is so easy to be wise after the event and to condemn as negligence that which was only a misadventure. We ought always to be on our guard against it, especially in cases against hospitals and doctors. Medical science has conferred great benefits on mankind, but these benefits are attended by considerable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking the risks. Every advance in technique is also attended by risks. Doctors, like the rest of us, have to learn by experience; and experience often teaches in a hard way. Something goes wrong and shows up a weakness, and then it is put right. That is just what happened here.”
Then again (ibid, at P.139) :
“One final word. These two men have suffered such terrible consequences that there is a natural feeling that they should be compensated. But we should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong. Doctors would be led to think more or their own safety than of the good of their patients. Initiative would be stifled and confidence shaken. A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work. We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only misadventure.”
The aforesaid view is accepted by the Apex Court in the case of Vinitha Ashok v. Lakshmi Hospital reported in (2001) 8 Supreme Court Cases 731:-
“In the present case, the appellant did not have any history from which presence of cervical pregnancy could have been suspected. The appellant had not complained of any significant bleeding or painless bleeding or bleeding with pain at any time. In the circumstances, the doctors could not have found that that the appellant had cervical pregnancy and they cannot be held guilty of any negligence either in respect of diagnosis or in the matter of treatment administered. Hysterectomy was the only solution on account of profuse bleeding or severe vaginal or peritoneal bleeding.”
After putting the aforesaid citation, the Court has observed :-
“This is the legal position of the standard of care required by a doctor. A doctor will not be guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art and if he has acted in accordance with such practice then merely because there is a body of opinion that takes a contrary view will not make him liable for negligence.”
The Court also refers :-
The Court in Laxman Balkrishna Joshi (Dr.) v. Dr. Trimbak Bapu Godbole (AIR 1969 SC 128 = (1969) 1 SCR 206) has held as under : (AIR pp 131-32. para 11)
“A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, namely, a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment.”
The aforesaid principles are reiterated by Apex Court in A.S. Mittal v. State of U.P, (1983) 3 SCC 223.
In Indian Medical Assn. V. V.P. Shantha, (1995) 6 SCC 651, this Court approved the following passage from Jackson and Powell on Professional Negligence (SCC p. 666, para 22)
“The approach of the courts is to require that professional men should possess a certain minimum degree of competence and that they should exercise reasonable care in the discharge of their duties. In general, a professional man owes to his client a duty in tort as well as in contract to exercise reasonable care in giving advice or performing services.”
After considering the effect of all these decisions, this Court in Achutrao Haribhau Khodwa Vs. State of Maharashtra & Ors., (1996) 2 SCC 634, the Apex Court held as under: (SCC pp. 645-46, para 14)
“14. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence.”
In substance, for establishing negligence or deficiency in service there must be sufficient evidence that a doctor or a hospital has not taken reasonable care while treating the patient. Reasonable care in discharge of duties by the hospital and doctors varies from case to case and expertise expected on the subject, which a doctor or a hospital has undertaken. Courts would be slow in attributing negligence on the part of the doctor if he has performed his duties to the best of his ability with dure care and caution.
On the basis of the evidence as stated above it is apparent that:
(i) the case of the deceased was a high risk case;
(ii) he has undergone operation for by-pass surgery in 1988 and also mitral valve was replaced;
(iii) in 1996 it was found that the heart function of the deceased had deteriorated to 15% ejection fraction (pumping efficiency);
(iv) the operation was performed successfully;
(v) while undertaking the post-operative treatment there was extubation;
(vi) as per the medical literature such chances of accidental extubation are between 8.5% and 13%;
(vii) extubation was swift and sudden, but it was immediately noticed by the nurse, Ms. Lavina Sahalini Dantal who was emptying patient’s urine bag. Immediately the Senior Nurse rushed to the Unit, called the expert doctors who found intubation difficult. Within 10 minutes there was cardiac arrest. That is the cause of death, as mentioned in the post mortem report;
(viii) in the post mortem report against column (h) ‘large vessel’ - it is mentioned that there were areas of fresh infarction over the anterior wall of left ventricle of size 3 cm x 2 cm. Arota athroscleros is seen;
(ix) Dr.Kadam, Dr. Vaid and Dr.Mangal Jain who are experts in the field tried to intubate, but found it difficult, because, trachea was congested. In the post mortem report it is also mentioned that larynx, trachea and bronchi were congested;
(x) there is nothing on record to establish that Breach Candy Hospital was not equipped with necessary equipments for such cases and the allegations made in the complaint there was inefficient surgical ICCU, having no residential anaesthetist, no resident cardiac surgeon, lacking of basic apparatus instruments required to resuscitate patient on ventilator is without any substance and is baseless. We agree with their version and find that there is no negligence or deficiency in service on the part of the Opposite Party No.1.
Hence, in view of the aforesaid discussion and the law on the subject as the doctors have performed their duties to the best of their ability and with due care and caution, it cannot be held that there is deficiency in service. Admittedly, the deceased was a high risk case and such accidental eventuality cannot be controlled or avoided. Further, as stated above, every surgical operation is attended by risk. And, therefore, simply because something goes wrong, conclusion of deficiency cannot be drawn. It is apparent, in the present case, that the doctors as well as the hospital staff have acted in accordance with the practice accepted as proper by medical-men skilled in that art. Undisputedly, doctors working in the Opposite Party No.1 hospital were possessing degree of competence. The nursing staff have also exercised reasonable care in discharge of their duties. Merely because after extubation by the patient intubation could not be carried out immediately because of congestion in trachea, it cannot be held that the doctors in SICCU were not competent or there was deficiency in discharge of their duties. Nurse attached to the bed of the deceased was also present and vigilant. Hence, there is no substance in this complaint.
On behalf of Respondent Nos. 2 and 3, learned Counsel Mr.Bhattacharya submitted that as the baseless complaint is filed against a renowned doctors, the Complainant should be put on exemplary costs. In our view, the aforesaid submission requires acceptance, because it appears that the complaint is filed at the behest of Dr.Sandhya Mali, the daughter of the Complainant. There was no justifiable ground to make allegations against the Respondent Nos. 2 and 3. It is only at the stage of final arguments the learned Counsel for the Complainant stated that they do not want to claim anything from Opposite Party No.2 and Opposite Party No.3 and admitted that there was no negligence on their part. The fact remains that Opposite Party Nos. 2 and 3 were unnecessarily impleaded and an exaggerated claim was made in the complaint. We condemn the flippant attitude of the Complainant.
In the result, complaint is dismissed. The Complainant is directed to pay a token amount of Rs.5,000/- to each of the Opposite Parties.