To Hold A Medical Practitioner Liable For Negligence, A Higher Threshold Limit Must Be Met: Supreme Court

The Supreme Court, while hearing a set of appeals pertaining to the medical negligence matter, observed that to hold a medical practitioner liable for negligence, a higher threshold limit must be met. This is to ensure that these doctors are focused on deciding the best course of treatment as per their assessment rather than being concerned about possible persecution or harassment that they may be subjected to in high-risk medical situations.

“Therefore, to safeguard these medical practitioners and to ensure that they are able to freely discharge their medical duty, a higher proof of burden must be fulfilled by the complainant. The complainant should be able to prove a breach of duty and the subsequent injury being attributable to the aforesaid breach as well, in order to hold a doctor liable for medical negligence.,” Justices Hrishikesh Roy and Manoj Misra.

The Bench was hearing the appeals filed under the Consumer Protection Act, 1986, (Act) assailing the impugned decision passed on February 16, 2018, by the National Consumer Disputes Redressal Commission (NCDRC) in a Consumer Case filed by Mrs. Sunita Parvate. In the same she had alleged that medical negligence in her treatment at Suretech Hospital which resulted in permanent damage to her respiratory tract and permanent voice-loss.

As per the complaint, the main claim of negligence was the unnecessitated and forcefully-conducted Nasotracheal Intubation (‘NI’) procedure which was the only reason she suffered from voice-loss and permanent deformity in her respiratory tract. The ‘NI’ procedure was carried out, despite multiple failures in decannulating the ‘TT’. It may be noted that the ‘NI’ procedure entails inserting an endotracheal tube through the patient’s nose, to assist in breathing.

The NCDRC directed Suretech Hospital and Research Centre Private Limited, a Hospital in Nagpur, Dr. Nirmal Jaiswal, Chief Consultant and Intensive Care Unit In-charge, at Suretech Hospital, Dr. Madhusudan Shendre, ENT Surgeon at Suretech Hospital, and Dr. M. A. Biviji, Radiologist at Suretech Hospital to jointly and severally pay Rs. 6,11,638/- . The medical negligence was proved on account of the unjustifiable and forceful performance of ‘NI’ procedure on Mrs. Sunita on May 13, 2004, at Suretech Hospital.

In a set of three appeals, one appeal was filed by Dr. M.A. Biviji denying any role in the alleged medical negligence during treatment of Mrs. Sunita at Suretech Hospital. Second was filed by Suretech Hospital and other doctors completely denying that any negligence was committed during Mrs. Sunita’s treatment in Suretech Hospital. Last one was filed by Mrs. Sunita seeking enhancement of compensation ordered for medical negligence during her treatment.

Inter-alia, the Court observed that the medical team at Suretech Hospital was able to successfully prove that due medical consideration was given before choosing the ‘NI’ procedure. Therefore, it was held that no negligence was committed in opting for and/or conducting the aforesaid procedure.

Court’s Observations

At the outset, the Court addressed whether the act of conducting the ‘NI’ procedure on Mrs. Sunita on 13.05.2004 at Suretech hospital, while removing the existing ‘TT’ after the Bronchoscopy report indicated normalcy in Mrs. Sunita’s airways, amounted to negligence or not.

Deriving its strength from the landmark pronouncements of Jacob Mathew vs. State of Punjab, (2005) 6 SCC 1 and Kusum Sharma vs. Batra Hospital (2010) 3 SCC 480, the Court penned down the three essential ingredients in determining an act of medical negligence. Those were: (1) a duty of care extended to the complainant, (2) breach of that duty of care, and (3) resulting damage, injury or harm caused to the complainant attributable to the said breach of duty. However, a medical practitioner will be held liable for negligence only in circumstances when their conduct falls below the standards of a reasonably competent practitioner., the Bench recorded.

The Court went on to elucidate this further and stated that due to the unique circumstances and complications that arise in different individual cases, coupled with the constant advancement in the medical field and its practices, it is natural that there shall always be different opinions, including contesting views regarding the chosen line of treatment, or the course of action to be undertaken. In such circumstances, just because a doctor opts for a particular line of treatment but does not achieve the desired result, they cannot be held liable for negligence, provided that the said course of action undertaken was recognized as sound and relevant medical practice. This may include a procedure entailing a higher risk element as well, which was opted for after due consideration and deliberation by the doctor. Therefore, a line of treatment undertaken should not be of a discarded or obsolete category in any circumstance.

Addressing the impugned judgment, the Court observed that though it held that the ‘NI’ procedure undertaken amounted to negligence, however, it failed to point towards the specific breach of responsibility. There is nothing in the NCDRC judgment to indicate who performed the said procedure.

Pertinently, ‘NI’ procedure was a short-term procedure undertaken to assist in respiration whereas the ‘TT’ was resorted to with the objective of providing a longer assisted-respiration. Therefore, NCDRC opined that replacing the existing ‘TT’ with ‘NI’ made little sense, particularly when Mrs. Sunita was able to breathe normally through the ‘TT’.

However, the Supreme Court highlighted that the tribunal failed to appreciate the medical projections that there was a need to remove ‘TT’ precisely because Mrs. Sunita had been responding well to the treatment. In order to enable the patient’s return towards normalcy i.e., to breathe without assistance, the removal of ‘TT’ was necessitated.

“In fact, there was a potential risk of infection and development of complications like stenosis from long-term ‘TT’ intubation as well.,” the Court added.

After dwelling into the detailed analysis of facts and circumstances and examining the expert medical report by RML hospital, the Court opined that after the difficulties faced during the ‘TT’ decannulation process and the discovery of a stridor, opting for the ‘NI’ procedure as an alternative course of treatment to aid respiration could be medically justified as well. It observed:

“As an accepted medical course of action, it was expected that the procedure would aid with recovery and lead to the desired results which did not happen. However, that cannot be said to be a breach of duty amounting to negligence either. As was rightly observed in the Jacob Mathew case and Kusum Sharma case, adopting an alternative medical course of action would not amount to medical negligence.”

By the end, it was also stated that the burden of establishing negligence is on the complainant. In this case, however, Mrs. Sunita had failed to prove medical negligence by the doctors. There was no evidence to establish that the ‘NI’ procedure is a bad medical practice or based on unsound medical advice.

On the other hand, the medical team at Suretech Hospital was able to successfully prove that due medical consideration was given before choosing the aforesaid ‘NI’ procedure. Therefore, the Court held that no negligence was committed in opting for and/or conducting the aforesaid procedure.

The Court, in its conclusions, also marked that 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.

While penning down the conclusion of the judgment, the Court quoted renowned author and surgeon Dr. Atul Gawande on medical treatment:

“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.”

In view of the same, the Court while allowing the first two appeals held that 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.

Case Title: M.A Biviji v. Sunita & Ors.

Citation : 2023 LiveLaw (SC) 931

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