Mere Non-Availability Of Operation Theatres When Patient Was Taken For Surgery Not Medical Negligence On Part Of Hospital : Supreme Court

A bench comprising Justices Hemant Gupta and V. Ramasubramanian observed that if a patient who was admitted in a critical condition does not survive even after surgery, the blame cannot be passed on to the Hospital or the Doctor who provided all possible treatment within their means and capacity.

"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."

The matter emanates from a 2010 order of National Consumer Disputes Redressal Commission (NCDRC) against the Bombay Hospital and Medical Research Centre and one of its doctors, wherein it had directed them to pay the deceased Rs. 14,18,491 along with interest for medical negligence and deficiency in services.

The complaints alleged that the doctor did not examine the patient after survey, delayed his DSA test, his angiography and later his treatment due to non availability of operation theatre. They further contended that the patient was left in the care of inexperienced doctors who did not properly treat the gangrene on his legs.

The Hospital pointed out the two factors that were held against the doctor by the NCDRC:

1. He did visit the patient soon after surgery to verify the blood flow;
2. He did not visit the patient when he was in Mumbai (29.04.1988 - 9.5.1988) and he went abroad for attending medical conference (9.5.1988 - 7.6.1998)

The Court found that negligence cannot be affixed on the doctor and hospital for delay in DSA test due to non-working of the DSA machine, which was beyond human control. It observed that the doctors were on their feet, which is evident from the fact that soon they adopted the alternative process to determine blood flow by means of angiography.

"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."

The Court stated that there was no proof to show negligence in performing surgery. Adding that it held that the mere fact that the the doctor went aboard does not in any manner prove negligence.

"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. Two doctors from the unit of the Doctor namely Dr. Bindra and Dr. Partha, both post graduates, were present to attend to the patient."

In today's world of specialisation the argument that the doctor who had conducted the surgery had to be responsible for other aspects of the treatment did not impress 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."

The Court observed -

"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."

Placing reliance on a catena of judgment the Court noted that the NCDRC had passed the impugned order solely on the principle of res ipsa loquitor, which is based on evidence. The Court found that there was no evidence on record to suggest the same.

A sum of Rs. 5 lakh that was already disbursement by the interim order of the Supreme Court was directed to be treated as an ex gratia payment to the complainant, not recoverable by the Hospital or the doctor.

Case Title : Bombay Hospital and Medical Research Centre versus Asha Jaiswal and others

Citation : LL 2021 SC 694

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