Non-availability of emergency operation theatre, doctor's foreign visit not medical negligence: Supreme Court

No fault can be attached to a hospital if the operation theatres were occupied when the patient was taken for surgery, the Supreme Court held on Tuesday (Bombay Hospital and Medical Research Centre vs Asha Jaiswal)..A Bench of Justices Hemant Gupta and V Ramasubramanian held that operation theatres in hospitals 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 a hospital negligent in any manner," the Court ruled.Pertinently, the Court held that a doctor cannot be expected to remain on the bed side of the patient throughout his stay in the hospital.Further, 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."No doctor can assure life to his patient but can only attempt to treat his patient to the best of his ability," the Court underscored..The top court was dealing with an appeal against an order of the National Consumer Disputes Redressal Commission (NCDRC) in a case in which a patient had succumbed to a leg injury in 1998. The complainant had alleged that the doctors did not pay attention to the patient, delayed the angiography and could not amputate the legs which had an impending gangrene. The total cost incurred for the treatment was ₹4 lakh and the NCDRC had ordered a compensation to of ₹14 lakh to be paid by the hospital and the doctors charged with negligence..The top court set aside the order of the NCDRC, noting that no fault can be attached to the Hospital if the operation theatres were occupied when the patient was taken for surgery.The complainant had also alleged that after a surgery which was performed on April 23, 1998, there was a delayed decision to amputate the leg subsequent to re-exploration on April 24,1998, and also because of "undue foreign visit" of the doctor involved..To this, the apex court observed that the mere fact that the doctor had gone abroad cannot lead to an inference of medical negligence as the patient was admitted to a hospital having 20 specialists in multi-faculties.Further, in respect to contention of the doctor being on a foreign visit, the Court said that a medical professional has to upgrade himself with the latest development in his field which may require him to attend conferences held both in and outside the country. "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," the judgment said..Thus, in spite of the treatment, if the patient does not survive, the doctors cannot be blamed as even doctors with the best skills, cannot prevent the inevitable."The doctors are expected to take reasonable care but none of the professionals can assure that the patient would overcome the surgical procedures," the Court opined. .While allowing the appeal, the top court stated that ₹5 lakh which was paid to the complainant will not be taken back post the judgment and should be treated as "ex-gratia" payment. .Bombay Hospital was represented by Senior Advocate Siddharth Bhatnagar, briefed by the team of Karanjawala & Co., led by Senior Partner Ms. Nandini Gore, along with team members Ms. Sonia Nigam, Principal Associate and Ms. Neha Khandelwal, Senior Associate..[Read Judgment]