M.A Biviji vs Sunita CA 3975/18 19/10/23 [ MANOJ JJ ] [ SUPREME COURT ]

 

Consumer Protection Act, Sections 2 and 23 Medical Negligence Whether conducting the ‘NI’ procedure on patient while removing the existing ‘TI’ after the Bronchoscopy report indicated normalcy in patient’s airways, amounts to negligence or not – Held Not – ‘NI’ procedure was carried out after due consideration – Existing “TT’ was removed after the bronchoscopy showed normalcy in the airways & trachea of the patient – It was expected that the patient would be able to breathe normally without any support after ‘TT’ decannulation – However, a _ stridor was observed in the airways of the patient, after decannulation took place – In light of the same, an alternative course of treatment in the form of an ‘NI’ procedure was opted for as a temporary measure – Nothing to show that the procedure conducted was outdated or poor medical practice. [Para 53]

Relevant paras:

52. It must be pointed out that the only medical report available in this case i.e., the RML Hospital Committee Report did not attribute any negligence to Suretech Hospital, Dr. Biviji, Dr. Jaiswal or Dr. Shendre with respect to any of the charges levelled against them. If the ‘NI’ procedure had been conducted in a negligent manner or was
a poor medical decision, it is likely that the RML Hospital Committee Report would have mentioned the same. However, no such observation was made either. Further, none of the doctors that treated the patient commented adversely with respect to the chosen course of treatment. Therefore, there is no substance to establish the causal link between the ‘NI’ procedure that was undertaken at Suretech Hospital and the subsequent medical complications that arose.

53. On the other hand, the medical team at Suretech Hospital has been able to show that the ‘NI’ procedure was carried out on 13.05.2004 only after due consideration. The existing ‘TT’ was removed after the bronchoscopy showed normalcy in the airways & trachea of the patient. It was expected that the patient would be able to breathe normally without any support after ‘TT’ decannulation. However, a stridor was observed in the airways of the patient, after the said decannulation took place. In light of the same, an alternative course of treatment in the form of an ‘NI’ procedure was opted for as a temporary measure. There is nothing to show that the procedure conducted was outdated or poor medical practice.
54. At this stage, we may benefit by adverting to what the renowned author and surgeon Dr. Atul Gawande had to say on medical treatment. He said “We look for medicine to be an orderly field of knowledge and procedure. But it is not. It is an imperfect science, an enterprise of constantly changing knowledge, uncertain information, fallible individuals, and at the same time lives on the line. There is science in what we do, yes, but also habit, intuition, and sometimes plain old guessing. The gap between what we know and what we aim for persists. And this gap complicates everything we do.”

55. The above observation by Dr. Atul Gawande aptly describes the situation here. This is a classic case of human fallibility where the doctors tried to do the best for the patient as per their expertise and emerging situations. However, the desired results could not be achieved. Looking at the line of treatment in the present matter, it cannot be said with certainty that it was a case of medical negligence.
56. Resultantly, we hold that there was no breach of duty of care at Suretech Hospital or on part of Dr. Biviji, Dr. Jaiswal and/or Dr. Shendre. The charge of negligence is, therefore, not proved. Hence, the impugned judgment awarding Rs. 6,11,638/- as compensation @ 9% simple interest p.a. on account of medical negligence committed by the single act of performing the aforesaid ‘NI’ procedure, is found to be erroneous and is set aside.
57. Resultantly, the appeal filed by Dr. M.A Biviji (Civil Appeal No. 3975 of 2018) as well as the appeal filed by Dr. Nirmal Jaiswal, Dr. Madhusudan Shendre and Suretech Hospital (Civil Appeal arising out of Diary No. 21513 of 2018) are allowed to the extent that the charges attributing medical negligence to Suretech Hospital, Dr. Biviji, Dr. Jaiswal, and Dr. Shendre are found not proved. The appeal filed by Mrs. Sunita (Civil Appeal No. 4847 of 2018) is accordingly dismissed. Parties to bear their own cost.

 

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M.A Biviji Sunita & Ors. Judgment the law literates

 

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