2023 INSC 938 Page 1 of 42

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3975 OF 2018

M.A Biviji APPELLANT(S)

VERSUS

Sunita & Ors. RESPONDENT(S)

With

CIVIL APPEAL NO. 4847 OF 2018

And

CIVIL APPEAL NO. OF 2023

(Arising out of Diary No. 21513 OF 2018)

J U D G M E N T

Hrishikesh Roy, J.

Delay condoned.

2. The Civil Appeals have been filed under Section 23 of The

Consumer Protection Act, 1986, (hereinafter referred to as the, ‘Act,

1986’) assailing the impugned decision passed on 16.02.2018 by the

National Consumer Disputes Redressal Commission ( hereinafter,

‘NCDRC’) in Consumer Case No. 48 of 2005 filed by Mrs. Sunita

Parvate. The NCDRC directed Suretech Hospital and Research

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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/- as compensation for medical

negligence to Mrs. Sunita (Complainant) with 9 % simple interest

from the date of filing of the complaint till the date of actual

payment, within six weeks. Additionally, the NCDRC directed that

Rs. 50,000/- to be paid to Mrs. Sunita as cost towards litigation

expenses. The medical negligence was proved on account of the

unjustifiable and forceful performance of Nasotracheal Intubation

(hereinafter, ‘NI’) procedure on Mrs. Sunita on 13.05.2004, at

Suretech Hospital. The ‘NI’ procedure entails inserting an

endotracheal tube through the patient’s nose, to assist in breathing.

3. The Civil Appeal No. 3975 of 2018 has been filed by Dr. M.A.

Biviji denying any role in the alleged medical negligence during

treatment of Mrs. Sunita at Suretech Hospital. The Civil Appeal

(Diary No.21513 of 2018) has been filed by Suretech Hospital, Dr.

Nirmal Jaiswal, and Dr. Madhusudan Shendre completely denying

that any negligence was committed during Mrs. Sunita’s treatment

in Suretech Hospital. Whereas Mrs. Sunita filed Civil Appeal 4847

of 2018 seeking enhancement of compensation ordered for medical

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negligence during her treatment. She further prayed for

enhancement of 9% interest p.a. to 18% interest p.a. The claimant,

Mrs. Sunita filed Consumer Case 48 of 2005 before the NCDRC

seeking Rs. 3,58,85,249/- i.e., Rs. 3.58 crores. However, the NCDRC

only awarded her Rs. 6,11,638/- @ 9% simple interest as

compensation for the medical expenses she incurred. She was

further entitled to Rs. 50,000/- as cost for her litigation expenses.

Complaint before NCDRC:

4. At around 04:30 PM on 05.05.2004, Mrs. Sunita was taken to

Gondia hospital within 15 minutes of meeting with a serious car

accident near Gondia, resulting in multiple injuries. She suffered

from a mandibular (lower jaw) fracture on the left side, and a clavicle

(collar bone) fracture on the right side. As an emergency measure,

Dr. Vimlesh Agarwal conducted a tracheostomy procedure i.e.,

creating an opening in the front part of the neck to insert a tube into

Mrs. Sunita’s windpipe (trachea) to assist breathing. On 06.05.2004

at around 12:30 AM, the complainant/patient was shifted from

Gondia Hospital to the ICU in Suretech Hospital, Nagpur under Dr.

Nirmal Jaiswal’s (ICU In-charge) supervision. Mrs. Sunita was put

on a ventilator through her Tracheostomy Tube (hereinafter, ‘TT’),

which was weaned off on 08.05.2004. On 11.05.2004, Dr. Vinay

Saoji, Plastic Surgeon, at Suretech Hospital performed ‘Mandibular

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Bracing Surgery’ to correctly set Mrs. Sunita’s left-side mandibular

fracture in place. The surgery was pe rformed through ‘TT’,

horizontally and vertically wiring both the upper and lower jaws.

5. The complainant/patient alleged that on 13.05.2004, Dr. Nirmal

Jaiswal, Dr. Madhusudan Shendre, Dr. M.A Biviji performed

Bronchoscopy to check Mrs. Sunita’s airways and for evaluating her

Larynx and Trachea. The complainant further claimed that even

though the Bronchoscopy showed a normal air -passageway,

indicating her ability to breathe normally through the existing ‘TT’,

Dr. Nirmal Jaiswal, and Dr. Madhusudan Shendre, removed the ‘TT’

and forcefully performed ‘Nasotracheal Intubation’ (hereinafter ‘NI’)

i.e., inserting an Endotracheal tube through the nose to facilitate

breathing.

6. According to the patient, until the ‘NI’ procedure was conducted,

she was being fed through a Ryle’s Tube i.e., a tube inserted through

the nose to the stomach. However, to accommodate the

‘Nasotracheal Tube’ (Hereinafter, ‘NT’), the Ryle’s Tube (Tube

inserted through the nose to feed the patient) had to be removed.

Subsequently, she was given liquid oral feed through her mouth.

The liquid feed started passing into her respiratory tract, and got

collected in her lungs leading to Frank pus and severe infection,

ultimately causing ‘Severe Septicemia’. As per the patient, the food

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entered the respiratory tract only due to the inflated cuff of the ‘NT’.

The pus started leaking through the stitched ‘tracheostomy’ wound.

As a result of the injuries sustained in the subglottic region, the vocal

cords of the patient were also paralysed.

7. On 25.05.2004, Dr. Nirmal ordered a ‘Barium Swallow Test’ i.e.,

a test conducted to check for any abnormalities in the digestive tract

of the patient. It was alleged that even though the said test was

resisted by the family of the complainant (in particular, a relative of

the complainant – Dr. Kalidas Parshuramkar) due to a possible

danger of developing asphyxia, the ‘Barium Swallow Test’ was done

forcefully without the presence of any doctor, specifically the

radiologist i.e., Dr. M. A. Biviji. Mrs. Sunita claimed to have been

forcefully administered two glasses of Barium Sulphate i.e., the

solution used to conduct the aforesaid test. It was alleged that upon

consumption of the solution, she experienced extreme

breathlessness and almost died. She was saved due to the efforts of

her relative – Dr. Kalidas Parshuramkar, who took her to the suction

room to remove the aspirated solution from her tracheostomy wound

and lower trachea.

8. The complainant, being unsatisfied with her treatment at

Suretech hospital sought a discharge. On 27.05.2004, she flew to

Mumbai, to meet Dr. Sultan Pradhan in Prince Aly Khan Hospital

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who advised her to first treat life-threatening conditions like difficult

respiration, ‘Severe Septicemia’, and ‘Severe Thrombocytopenia’. Dr.

Pradhan reinserted the ‘TT’ without a cuff through the pre-existing

tracheostomy wound to aid respiration. The complainant alleged

that even Dr. Pradhan questioned the ‘NI’ procedure, opining that

all subsequent complications that arose were iatrogenic in nature.

9. Upon being advised rest, Mrs. Sunita flew back to Nagpur, and

got herself admitted to Shanti Prabha Nursing Home. On

03.06.2004, Dr. Swarankar performed a Fiber Optic Bronchoscopy,

which revealed two openings in Mrs. Sunita’s Trachea at the

subglottic level. A false passage was created, which caused the food

to pass into her trachea. Mrs. Sunita claimed that the unnecessary

and forced ‘NI’ procedure was the only reason why her subglottic

region was injured leading to multiple serious medical

complications. On 04.06.2004, Mrs. Sunita was discharged from

Shanti Prabha Nursing Home, Nagpur. Subsequently, she stayed at

her home in a special medically-equipped room until 02.07.2004

when she flew to Mumbai. On 03.07.2004, Dr. Pradhan conducted

a laryngoscopy and pharyngoscopy revealing complete

laryngostenosis i.e., narrowing of the airway. Upon Dr. Pradhan

expressing his inability to perform surgical intervention, Mrs. Sunita

underwent a 3D CT Scan for her larynx on 05.07.2004 at Jaslok

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Hospital in Mumbai. The scan indicated a 3.5 cm subglottic stenosis.

On 07.07.2004, Mrs. Sunita went to Dr. Krishnakant B. Bharagava

and Dr. Samir K. Bhargava, ENT specialists, who conducted Flexible

Fiberoptic Bronchoscopy to observe signs of injuries in the subglottic

region. Subsequently, the patient was referred to Dr. Ashutosh G.

Pusalkar, ENT at Leelavati Hospital in Mumbai. Dr. Pusalkar

expressed his inability to perform any immediate surgical

intervention due to the severity of injury in the subglottic region. He

advised Mrs. Sunita to maintain the ‘TT’ and undergo proper care

for the stoma wound for around 6 months. Eventually, on

30.01.2005, Dr. Pusalkar performed tracheoplasty i.e., tracheal

reconstruction surgery. A 3.5 cm long subglottic stenotic segment

was excised in the surgery. Resultantly, the complainant had to live

with a shortened windpipe. On 14.03.2005, the ‘TT’ was removed

after which the doctors realised that Mrs. Sunita’s speech could

never be restored.

10. Thereafter, Mrs. Sunita filed Consumer Case No. 48 of 2005

under Sections 12 and 21 of Act, 1986 before the NCDRC on

16.05.2005 alleging medical negligence in her treatment at Suretech

Hospital, resulting in permanent damage to her respiratory tract and

permanent voice-loss, altering her life forever. Through the

complaint, she sought Rs. 3,58,85,249/- @ 18% interest p.a. as

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compensation against loss and injury suffered by her and her family.

The complainant claimed that due to Dr. Nirmal Jaiswal, Dr.

Madhusudan Shendre, and Dr. M.A Biviji’s negligence she suffered

from ‘Severe Septicemia’, i.e., a blood stream infection resulting from

bacterial infection in her respiratory tract. She claimed that the

infection was caused due to oral aspiration i.e., food and liquid

entering her airways, and getting deposited in her lungs, leading to

Frank pus. She further alleged that the negligent treatment at

Suretech Hospital, resulted in her developing ‘Hemorrhagic Peteche’

all over her body due to ‘Severe Thrombocytopenia’ i.e., her platelet

count falling to dangerously low levels. The complainant alleged

negligence on the part of Suretech Hospital to not conduct regular

blood tests to identify significant fall in her platelet count at an

appropriate time and waited for her platelet levels to fall to a

dangerously low level, i.e., 26,000 on 20.05.2004, before taking any

action. Mrs. Sunita also claimed her repeated complaints of blurred

vision were ignored, thereby resulting in vision loss. The main claim

of negligence that the complainant attributed in the Consumer Case

No. 48 of 2005 is that the forced ‘NI’ procedure resulted in her

developing Grade-IV Subglottic Stenosis (i.e., narrowing of upper

airway between the vocal folds and lower border of cricoid cartilage)

in the trachea. Subsequently, the same led to various severe

complications. As per the complainant, the unnecessitated and

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forcefully-conducted ‘NI’ procedure 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’.

Rebuttal to the Consumer Complaint:

11. Dr. M.A Biviji claimed that being a radiologist, he did not have

any role in conducting Mrs. Sunita’s Bronchoscopy or ‘NI’ on

13.05.2004. Relying on Mrs. Sunita’s discharge bill dated

26.05.2004, he averred that Dr. Rajesh Swarnakar as the

pulmonologist and bronchoscopist at Suretech Hospital, conducted

the aforesaid Bronchoscopy and ‘NI’ procedure.

12. Dr. M.A Biviji, Dr. Nirmal Jaiswal, and Dr. Madhusudan

Pradhan claimed that the complaint is not maintainable as the

complainant has not impleaded necessary parties i.e., Dr.

Swarnakar, who conducted both the Bronchoscopy, indicating

normalcy in Mrs. Sunita’s airways and the ‘NI’ procedure, as well as

Dr. Ambade and Dr. Arti Wanare, Ophthalmologists, and Dr. Vinay

Saoji, Plastic Surgeon who conducted the ‘ Mandibular Bracing

Surgery’.

13. According to Dr. Biviji, performing the ‘Barium Swallow Test'

was essential in order to understand why the liquid feed was coming

out of Mrs. Sunita’s tracheostomy wound. He elucidated how the

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test was a routine procedure conducted even in newborn babies to

enquire about any abnormality in the passage between the windpipe

and the food-pipe. He stated that the solution used for the said test

i.e., the Barium Sulphate solution is a non-toxic, and harmless

substance, not posing any danger even in case of it being aspirated.

He stated that he was present during the test, as it cannot be

conducted without a radiologist’s presence. Their presence is needed

for the multiple X-rays that need to be taken during the test.

Further, the test cannot be conducted without the patient’s

cooperation, as they are instructed to swallow the Barium solution.

After the test, as a part of the routine procedure, appropriate steps

were taken to remove the Barium Swallow Solution that was

aspirated by the patient, using a suction machine.

14. Dr. Biviji along with Dr. Nirmal Jaiswal, Dr Madhusudan

Shendre, and Suretech Hospital claimed that the complaint ha d

been filed at the behest of Dr. Kalidas Parshuramkar (Mrs. Sunita’s

relative) who is a third party apart from being a PG diploma student

in Gynecology. It was stated that Dr. Parshuramkar lacked the

expertise to understand the treatment, yet constantly interfered,

and misinformed the patient about the ‘Barium Swallow Test’, and

other treatments being carried out, thereby creating unnecessary

panic. The doctors prayed for the complaint to be referred to a panel

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of medical experts in order to determine whether any negligence was

committed or not.

15. According to Dr. Jaiswal, Mrs. Sunita met with a serious

accident after which a ‘TT’ was done in the Gondia Hospital, only

after an unsuccessful Endotracheal Intubation attempt. The patient

was hospitalized in a semi-comatose state, and then immediately

put on a ventilator by Dr. Jaiswal. He stated that due care was taken

towards Mrs. Sunita’s treatment. A neuro-surgeon treated her for

head-injuries, and a plastic surgeon treated her for mandibular

fractures and oesopharyngeal trauma. Dr. Jaiswal claimed he was

not responsible for removing the Ryle’s Tube or forcefully performing

the ‘NI’ procedure either. It was propounded that it is common for

road accident patients to develop sepsis due to contamination of

their wounds. Mrs. Sunita’s complete blood count report WBC-

16700 on 06.05.2004 indicated neutrophilia-84% i.e., showing signs

of infection at the time of her admission to Suretech Hospital. With

respect to thrombocytopenia, immediate action was taken and Mrs.

Sunita was given platelet concentrates on an everyday basis.

Additionally, a bone-marrow examination was done to rule out any

other possibility of damage to the platelets. On 27.05.2004, Mrs.

Sunita’s platelets started rising gradually and reached up to 73,000

levels. Dr. Jaiswal claimed that it is possible for a tracheal stenosis

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to be discovered in the future, arising out of serious injuries

sustained in a road accident. The doctors contented that the

subsequent medical complications suffered by Mrs. Sunita could

have also come to effect between 04.06.2004 to 03.07.2004 when

she was being treated in her own house under Dr. Kalidas

Parshuramkar’s supervision.

16. Dr. Madhusudan Shendre claimed that on Dr. Jaiswal’s

instructions, he attempted ‘TT’ decannulation (i.e., Removing ‘TT’)

on 11.05.2004 since ‘TT’ removal had become necessary. As the

crisis resulted from Mrs. Sunita being involved in a vehicular

accident, she was put on a ventilator, which was weaned off on

08.05.2004. Removing the ‘TT’ would enable a normal respiratory

passage. He further reasoned that long-term intubation posed a risk

of infections and complications like stenosis. The Mandibular

surgery was successfully done to fix Mrs. Sunita’s lower jaw. Early

in the morning, Dr. Shendre removed the ‘TT’ and covered Mrs.

Sunita’s stoma wound, when she was in sustained bandage. He

claimed that Mrs. Sunita started experiencing breathing difficulty at

night. Therefore, the ‘TT’ was reinserted to support her airway. A re-

examination of the Tracheostomy wound indicated that the trauma

to the tracheal wall extended posteriorly and superiorly, resulting in

the anterior flap of the tracheal wall getting sucked during

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inspiration, thereby, obstructing tracheal lumen. A need to conduct

tracheoplasty in the future was suggested, in order to avoid stenosis.

However, as it could not be conducted immediately, an ‘NI’

procedure was suggested as an alternative involving ‘NT’ as a

temporary stent. The ‘NT’ stent was expected to serve the purpose of

holding the anterior flap and supporting the weakened anterior

tracheal wall, preventing a collapse in the lumen, which was causing

a problem in decannulation of the ‘TT’. Upon the flap and tracheal

wall healing completely, the ‘NT’ would have been removed restoring

normal airway. Therefore, Dr. Rajesh Swarnakar conducted the

requisite ‘NI’ procedure.

NCDRC Judgment

17. In relation to the main allegation in the complaint regarding

the ‘TT’ unnecessarily being replaced by ‘NI’, even though the 1

st

Bronchoscopy conducted on 13.05.2004, revealed normalcy in Mrs.

Sunita’s airways, the NCDRC held that negligence was proved. It

was found that given the patient was breathing normally through

the ‘TT’, there was no basis to consider replacing it with ‘NI’. It was

observed that the ‘TT’ is resorted to when there is a need to provide

longer respiration assistance as opposed to ‘NI’, which is more of a

temporary measure. Mrs. Sunita was already receiving breathing

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assistance through the ‘TT’ having already been performed at

Gondia hospital on 05.05.2004. After which, she was shifted to

Suretech Hospital in a semi-comatose state at around 12:30 AM on

06.05.2004. She was put on a ventilator as an urgent measure,

which was weaned off on 08.05.2004. Even the Bronchoscopy

conducted on 13.05.2004 indicated a normal larynx and trachea.

Thus, it is established that Mrs. Sunita was recovering well,

breathing through the ‘TT’ without any issue. Thus, ‘NI’ was

performed without any basis or justification, especially as a short-

term measure, even though the patient was responding well to her

existing treatment. It was further reasoned that even though there

is a need to take necessary long-term steps to ensure the patient’s

respiration is restored to its earlier normal levels, but the same

cannot be done unreasonably, in a tearing hurry, especially without

any impending need. Thereby, the NCDRC concluded that the

negligence charge regarding the unjustifiable ‘NI’ procedure was

proved. The act of replacing the existing ‘TT’, with ‘NI’ was held to

have been an avoidable course of action that was other than what

should have ordinarily been done in that situation.

18. The NCDRC further observed that the expert medical

committee report formulated by RML Hospital was silent about the

baseless and forced ‘NI’ procedure that was carried out, even though

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the Bronchoscopy report indicated that the patient had a normal

airway. The expert committee report mentioned that the ‘TT’ was

only removed on 13.05.2004, after the said Bronchoscopy report.

Thereafter, Mrs. Sunita was able to breath, but a minimal stridor

was observed.

19. The NCDRC held that the submissions made by Dr.

Madhusudan Shendre are inconsistent in relation to removal of the

‘TT’, and covering the stoma wound, and observing normalcy in the

morning, whereas he averred observing the patient having breathing

difficulty at night. Resultantly, Dr Madhusudan Shendre felt that a

re-examination was necessitated. He stated that the re-examination

revealed damage to the tracheal wall, necessitating Tracheoplasty in

the future. The NCDRC rejected the doctor’s suggestion of

proceeding with ‘NI’ as a temporary measure on account of a lack of

clear timeline. It was held that there was absolutely no justification

for opting for ‘NI’, especially when the patient was recovering well.

20. The NCDRC however concluded that Mrs. Sunita’s claim with

respect to negligence leading to Thrombocytopenia, was not proved.

The complainant’s platelet count on 06.05.2004 was 1,73,000, well

within the normal range. It significantly dropped down to 26,000 on

20.05.2004. The NCDRC observed that usually decisive interference

starts when the levels drop down to 20,000, however, in Mrs.

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Sunita’s case, intervention was done even when her platelet levels

dropped down to 26,000. The NCDRC further observed that

additionally, a bone-marrow examination was done. The intravenous

immunoglobulin was planned in advanced for the next 5 days.

Eventually, Mrs. Sunita’s platelet count was observed to have

started increasing, rising to 73,000 on 27.05.2004. The same was

said to have been corroborated with her discharge slip. The NCDRC

relying on the expert committee report held that no negligence was

proved in handling the Septicemia and thrombocytopenia.

21. The NCDRC also rejected the charges of negligence with respect

to the ‘Barium Swallow Test’. The decision of conducting the ‘Barium

Test’ was held to be a clinical one. As food was leaking from Mrs.

Sunita’s trachea stoma wound, an investigation to understand the

underlying cause was necessitated. It was held that Barium Sulphate

is a non-toxic solution, posing no serious danger to the complainant.

Mrs. Sunita failed to prove the charge regarding the test being

conducted without a radiologist’s presence.

22. The NCDRC held that the negligence charge with respect to

vision loss and the hospital ignoring Mrs. Sunita’s complaints about

blurred vision, is not proved. When she was admitted to Suretech

Hospital, she was in a critical condition, requiring ICU care and

ventilator support. So, the NCDRC rejected the suggestion that she

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was in a position to complain about blurred vision. Further, tests

conducted by two different Ophthalmologists at Suretech Hospital

revealed normal retina. Vision became an issue only after two

months, in July 2004, when Mrs. Sunita was diagnosed with left

homonyms, quadrantanopia. The expert committee report held that

such issues relating to vision-loss are commonly observed after

serious road accidents.

23. The NCDRC concluded that just based on a single act of

negligence, wherein, unjustifiably, ‘NI’ was forcefully performed,

replacing the existing ‘TT’, it is not possible to conclude that

subsequent resultant medical complications, including permanent

respiratory tract deformity and voice-loss suffered by Mrs. Sunita

were a consequence of that very single act of negligence. The NCDRC

observed that the risk of complications could not have been pin-

pointed. The subsequent medical complications could have occurred

anywhere, as the complainant was treated at various hospitals by

multiple doctors, and also lived in her own house from 04.06.2004

to 03.07.2004. The complainant was a victim of a serious road

accident, wherein, it is common for various serious infections and

complications to occur. The Complainant failed to produce any

evidence proving that Dr. Pradhan opined that the complications

were only a result of the forced ‘NI’. Relying on the expert committee,

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it was held that subsequent medical complications, and infections

are common after serious road accidents.

24. The NCDRC awarded Mrs. Sunita a compensation of Rs.

6,11,638/- @ 9% p.a. for the medical expenses she incurred at

Suretech Hospital. Reasoning, that as only a single act of negligence

is proved, that too not attributable to all subsequent medical

complications, it is only fair to announce compensation against the

medical expenses incurred at Suretech Hospital. The NCDRC

further directed that Rs. 50,000/- be paid to Mrs. Sunita as cost

towards her litigation expenses.

PLEADINGS ASSAILING THE IMPUGNED N CDRC JUDGMENT :

25. Assailing the NCDRC Judgment dated 16.02.2018, Mrs. Sunita

filed Civil Appeal 4847 of 2018, seeking enhancement of Rs.

6,11,638/- compensation. She also claimed a higher rate of interest

at 18% instead of the awarded 9% interest p.a. The patient claims

that though the NCDRC was correct in attributing medical

negligence with respect to the unjustified forced ‘NI’ procedure,

replacing the existing ‘TT’, the NCDRC erred in holding that there is

no direct link attributable to the said act of negligence leading to

subsequent prolonged medical complications, permanent

respiratory damage, and voice-loss. Mrs. Sunita claims that the sole

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reason why she lost her voice and suffered from tracheal stenosis,

is the forced ‘NI’. Though the Bronchoscopy report on 13.05.2004

indicated that she has a normal airway enabling normal breathing

through the existing ‘TT’, the ‘NI’ was yet conducted forcefully,

resulting in a tracheal injury. Furthermore, the ‘NI’ procedure was

undertaken despite multiple failed attempts to decannulate the ‘TT’.

Resultantly, the patient developed Frank Pus. She also further

suffered from ‘Severe Septicemia’, directly attributing it to her

tracheal injury. Moreover, Mrs. Sunita averred that Suretech

Hospital’s discharge summary does not mention any details about

the ‘NI’ procedure, indicating an attempt to hide the commission of

the aforesaid negligent act.

26. On 30.01.2005, Dr. A.G. Pusalkar performed tracheoplasty on

Mrs. Sunita, wherein, a 3.5cm Grade-IV subglottic stenotic segment

was excised. As a result, she now has to live permanently with a

shortened windpipe. It is further claimed that as per medi cal

science, 95% subglottic stenosis cases are acquired, and out of those

about 90% cases result from traumatic ‘NI’. Resultantly, it is

claimed that she has to live with a life-long respiratory problem, with

a danger of aspiration, causing a potential life-threatening situation

like asphyxia. As a result, Mrs. Sunita claimed Rs. 75,00,000/- for

the deformity of her respiratory tract, and another Rs. 75,00,000/-

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for losing her voice. She seeks another Rs. 5,00,000/- for permanent

disfiguration of her neck. She further sought Rs. 50,00,000/- as

compensation towards the mental and physical suffering she had to

undergo due to her prolonged treatment. Rs. 15,00,000/ - was

sought for the impact her disability had on her husband. Rs.

25,00,000/- was claimed for the mental stress and agony caused to

her husband. Rs. 20,00,000/- was claimed collectively for the

suffering undergone by the patient’s children due to her disability.

27. Assailing the impugned decision passed by the NCDRC, Dr.

M.A Biviji filed Civil Appeal 3975 of 2018 claiming that the only

charge of negligence against him, which was with respect to the

‘Barium Swallow Test’, was not proved. Also, assailing the same

impugned decision by the NCDRC, Suretech Hospital, Dr. Nirmal

Jaiswal, and Dr. Madhusudan Shendre filed Civil Appeal (Diary) No.

21513 of 2018. It was averred that the expert medical board formed

by Ram Manohar Lohia Hospital did not find any negligence with

respect to performing the ‘NI’ procedure, replacing it with the

existing ‘TT’. No other subsequent hospital in which the

complainant got treated post her discharge from Suretech Hospital

or any of the doctors who treated her subsequently, made a causal

connection between the ‘ NI’ procedure and the medical

complications, and tracheal stenosis and injuries. No hospital or

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medical record of the complainant indicates that the ‘NI’ procedure

was wrong. It is further claimed that the complainant has failed to

produce any evidence substantiating the aforesaid negligence. It is

stated that despite the NCDRC concluding that such injuries and

subsequent medical complications are commonly found in serious

cases of road accidents, the act of replacing the ‘TT’ with the ‘NI’

procedure was held to be negligent. It is further contended that the

NCDRC did not find any causal connection between the ‘NI’

procedure conducted on 13.05.2004, after removing the ‘TT’ and the

alleged tracheal injuries and the subsequent medical complications.

28. It is contended that Dr. Nirmal Jaiswal, being the ICU in-

charge, ensured immediate care, and she was consulted by multiple

specialists. A neuro-surgeon saw her for head -injuries, ENT

specialist conducted her Mandibular Fracture Surgery. Due care was

taken in providing Mrs. Sunita treatment, as also observed by the

medical expert board. Mrs. Sunita failed to prove a breach of duty,

and any resultant causal damage. As per the medical board, as there

was no negligence, and satisfactory treatment was given, Dr. Nirmal,

Dr. Madhusudan Shendre, Dr. Biviji carried out their duty diligently.

Moreover, it is also averred that the NCDRC failed to consider that

it was Dr. Rajesh Swarnakar, Pulmonologist and Bronchoscopist at

Suretech Hospital, who conducted Bronchoscopy and Bronchoscopy

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guided ‘NI’ on 13.05.2004. Dr. Ajay Ambade, and Dr. Arti Wanare,

Ophthalmologists at Suretech Hospital conducted Mrs. Sunita’s eye-

checkup. Dr. Vinay Saoji, Plastic Surgeon, performed the

Mandibular Surgery. However, the complainant did not implead

them as necessary parties, hence, the complaint is not maintainable

in the first place. It is further contended that even though the

medical bill raised at Suretech Hospital was Rs. 95,260/ -, the

NCDRC awarded Mrs. Sunita Rs. 6,11,638/ - as medical expenses

against the treatment undergone at Suretech hospital. Additionally,

Rs. 50,000/- was directed to be paid as cost towards Mrs. Sunita’s

legal expenses.

29. Dr. Madhusudan Shendre elucidated that after doing a

thorough evaluation of Mrs. Sunita’s condition found that all

parameters were normal for decannulating the ‘TT’. However, due to

the injuries suffered from the road accident, a wide incision was

done during the emergency ‘TT’ procedure conducted at Gondia

hospital. Thereby, the desired decannulation result was not

attained. Though, there was an expectation for the patient to return

to normal breathing without support, a stridor was found once the

‘TT’ was removed. A reasonably plausible cause of the stridor would

either be injuries suffered in the road accident or the emergency ‘TT’

procedure conducted at Gondia Hospital. Such injuries ultimately

Page 23 of 42

lead to subglottic stenosis. Dr. Madhusudan Shendre had multiple

options to choose from to treat the stridor, including, i) Long-term

Tracheostomy, ii) placement of airway stent. Amongst various

stenting options, Dr. Madhusudan Shendre went with the ‘NI’

procedure. The ‘NI’ procedure was also chosen to use it as a

temporary stent to provide support to the weakened trachea walls,

to help in healing of the tracheal injuries, while also aiding breathing

at the same time. It is contended that choosing one form of

treatment amongst other available options doesn’t amount to

negligence. Furthermore, even ‘TT’ procedures have their own risks,

such as failure to heal, collapsed windpipe, risk of developing

stenosis. The resultant medical complications and the injuries

suffered have no causal link with the ‘NI’ procedure. The

complainant was treated in multiple hospitals and was even at home

for a month. The tracheoplasty surgery was performed after almost

a year. The complications could have arisen due to various factors.

It is impossible to establish any direct link with the ‘NI’ procedure.

DISCUSSION/REASONING

30. We have considered the submissions of the complainant as

well as the doctors. We have also carefully perused the materials on

record. The NCDRC held that the charges alleging negligence with

respect to Mrs. Sunita’s complaints about blurred vision, negligence

Page 24 of 42

leading to thrombocytopenia i.e., platelet levels falling significantly

to dangerously low levels, and negligence with respect to the ‘Barium

Swallow Test’ causing breathlessness in Mrs. Sunita, are not

proved.

31. Two different ophthalmologists at Suretech hospital attended to

Mrs. Sunita and found a normal retina. As per the expert medical

committee’s report, even the CT scan/Orbit and MRI Scan revealed

a normal retina. Additionally, although decisive care intervention

ordinarily begins when platelet levels drop below 20,000, an

interference was done when the platelet levels fell below 26,000 in

the case of Mrs. Sunita. Intravenous immunoglobulin was also

planned 5 days in advance. Further, a bone-marrow examination

was conducted to additionally investigate the underlying cause(s).

Gradually, with the aforementioned treatment, the platelet levels

began to increase rapidly as well. In fact, the expert committee

observed that the hospital appropriately managed Mrs. Sunita’s

septicemia and thrombocytopenia.

32. With respect to the decision to conduct the ‘Barium Swallow

Test’, it is important to note that the clinical test was mandated in

Mrs. Sunita’s case to investigate why liquid feed being administered

orally was leaking through the wound and getting aspirated. This

test was routine in nature and carried out even in infants to

Page 25 of 42

determine any irregularities with respect to their digestive tracts.

Moreover, the solution used i.e., Barium Sulphate, was non-toxic in

nature and therefore, hardly posed any danger to patients.

Therefore, we find that the NCDRC rightfully held that the aforesaid

charges were not proved. These do not merit any further discussion

either.

33. In sum and substance, the main contention arising in the

aforesaid Civil Appeals that needs to be addressed is 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,

amounts to negligence or not. In case the answer arrived at is in the

affirmative, it needs to be further ascertained whether the

subsequent medical complications in the form of permanent

respiratory tract deformity as well as voice loss suffered by Mrs.

Sunita can solely and directly be attributed to this single or specific

negligent act.

34. Before proceeding further, let us understand what this Court

has found to constitute medical negligence. In Jacob Mathew vs.

State of Punjab

1, the Court held:

“48. (1) Negligence is the breach of a duty caused by omission

to do something which a reasonable man guided by those

1

(2005) 6 SCC 1

Page 26 of 42

considerations which ordinarily regulate the conduct of human

affairs would do or doing something which a prudent and

reasonable man would not do. The definition of negligence as

given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P.

Sing), referred to hereinabove, holds good. Negligence becomes

actionable on account of injury resulting from the act or omission

amounting to negligence attributable to the person sued. The

essential components of negligence are three: ‘duty’, ‘breach’,

and ‘resulting damage’.

(2) Negligence in the context of medical profession necessarily

calls for a treatment with a difference. To infer rashness or

negligence on the part of a professional, in particular a doctor

additional considerations apply. A case of occupational

negligence is different from the one of professional negligence. A

simple lack of care, an error of judgment or an accident, is not

proof of negligence on the part of a medical professional. So long

as a doctor follows a practice acceptable to the medical

profession of that day, he cannot be held liable for negligence

merely because a better alternative course or method of

treatment was also available or simply because a more skilled

doctor would not have chosen to follow or resort to that practice

or procedure which the accused followed. When it comes to the

failure of taking precautions, what has to be seen is whether

those precautions were taken which the ordinary experience of

men has found to be sufficient; a failure to use special or

extraordinary precautions which might have prevented the

particular happening cannot be the standard for judging the

alleged negligence. So also, the standard of care, while

assessing the practice as adopted, is judged in the light of the

knowledge available at the time of the incident, and not at the

date of trial. Similarly, when the charge of negligence arises out

of failure to use some particular equipment, the charge would

fail if the equipment was not generally available at that

particular time (that is, the time of the incident) at which it is

suggested it should have been used.

(3) A professional maybe held liable for negligence on one of the

two findings: either he was not possessed of the requisite skill

which he professed to have possessed, or he did not exercise,

with reasonable competence in the given case, the skill which he

did possess. The standard to be applied for judging, whether

the person charged has been negligent or not, would be that of

an ordinary competent person exercising ordinary skill in that

profession. It is not possible for every professional to possess the

highest level of expertise or skills in that branch which he

practices. A highly skilled professional may be possessed of

better qualities, but that cannot be made the basis or the

yardstick for judging the performance of the professional

proceeded against on indictment of negligence.”

Page 27 of 42

35. Following Jacob Mathew, the Court in Kusum Sharma vs. Batra

Hospital

2 laid down the following principles that are to be considered

while determining the charge of medical negligence:

“I.) Negligence is the breach of a duty exercised by

omission to do something which a reasonable man, guided by

those considerations which ordinarily regulate the conduct of

human affairs, would do, or doing something which a prudent

and reasonable man would not do. …

III.) …. The Medical Professional is expected to bring a

reasonable degree of skill and knowledge and must exercise a

reasonable degree of care. Neither the very highest nor a very low

degree of care and competence judged in the light of the particular

circumstances of each case is what the law requires.

IV.) A medical practitioner would be liable only where his

conduct fell below that of the standards of a reasonably

competent practitioner in his field.

V). In the realm of diagnosis and treatment there is scope for

genuine difference of opinion and one professional doctor is

clearly not negligent merely because his conclusion differs from

that of another professional doctor.

VI.) The medical professional is often called upon to adopt a

procedure which involves higher element of risk, but which he

honestly believes as providing greater chances of success for the

patient rather than a procedure involving lesser risk but higher

chances of failure. Just because a professional looking to the

gravity of illness has taken higher element of risk to redeem the

patient out of his/her suffering which did not yield the desired

result may not amount to negligence.

VII). Negligence cannot be attributed to a doctor so long as he

performs his duties with reasonable skill and competence. Merely

because the doctor chooses one course of action in preference to

the other one available, he would not be liable if the course of

action chosen by him was acceptable to the medical profession.

IX.) It is our bounden duty and obligation of the civil society

to ensure that the medical professionals are not unnecessarily

harassed or humiliated so that they can perform t heir

professional duties without fear and apprehension. ….”

2

(2010) 3 SCC 480

Page 28 of 42

36. As can be culled out from above, the three essential ingredients

in determining an act of medical negligence are: (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.

37. 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.

Page 29 of 42

38. 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. On the other

hand, doctors need to establish that they had followed reasonable

standards of medical practice.

39. While determining whether the ‘NI’ procedure performed on

Mrs. Sunita at Suretech Hospital on 13.05.2004, replacing the

existing ‘TT’ after the bronchoscopy report did not reveal any

abnormalities, amounts to negligence or not, the following aspects

are worthy of consideration:

a.) Whether there was a breach of duty of care, with respect to the

‘NI’ procedure performed on 13.05.2004. In case a breach did

occur, specific breach of responsibility of the concerned person

shall have to be established; and

Page 30 of 42

b.) Whether the subsequent medical complications, including

permanent deformity in the respiratory tract and voice loss

suffered by the patient can be directly attributed to the said

breach in duty of care.

40. Though the impugned judgment held that the ‘NI’ procedure

undertaken amounted to negligence, it failed to point towards the

specific breach of responsibility. There is nothing in the judgment to

indicate who performed the said procedure. In the complaint, Mrs.

Sunita has alleged that Dr. Jaiswal and Dr. Shendre performed the

said procedure. However, the rebuttal from Dr. Nirmal, Dr.

Madhusudan Shendre, Dr. M.A Biviji, and Suretech Hospital points

towards the bronchoscopy and the said procedure being undertaken

by Dr. Rajesh Swarnakar (serving as Pulmon ologist &

Bronchoscopist) on 13.05.2004. Conspicuously, there is no mention

at all of the ‘NI’ procedure in the discharge summary dated

27.05.2004 either. However, the medical bill dated 26.05.2004

clearly mentions both procedures to have been undertaken by Dr.

Rajesh Swarnakar. Therefore, any duty of care that existed towards

the patient with respect to the bronchoscopy and the ‘NI’ procedure

conducted on 13.05.2004 could only be attributed to Dr. Rajesh

Swarnakar.

Page 31 of 42

41. To understand whether the ‘NI’ procedure amounted to a

breach of duty or not, there is a need to further analyse whether the

aforesaid procedure was merely an alternative choice of treatment,

a necessary arrangement, or a treatment likely to have resulted in

failure based on a poor medical decision made by the medical team

at the Suretech Hospital. The only reason why the impugned

judgment held that the said procedure conducted on Mrs. Sunita

amounted to negligence was that it was performed out of the

ordinarily expected course of action without any justification. The

NCDRC reasoned that there was no justification to opt for the said

procedure as the patient was able to breathe normally through the

‘TT’ with the bronchoscopy report dated 13.05.2004 indicating

normalcy in airways, trachea and larynx as well. Moreover, the said

‘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, it was opined that

replacing the existing ‘TT’ with ‘NI’ made little sense, particularly

when Mrs. Sunita was able to breathe normally through the ‘TT’.

Moreover, the ‘NI’ procedure was conducted, despite various failed

attempts at ‘TT’ decannulation. Therefore, the act of performing the

said ‘NI’ procedure replacing the existing ‘TT’ through which Mrs.

Sunita was able to breathe normally amounted to undertaking a

course of action other than what would have been expected to take

Page 32 of 42

place ordinarily, in such a situation. At the same time, NCDRC also

noted that the expert medical committee formed by RML Hospital

was silent on the ‘NI’ issue. The expert committee only stated that

the bronchoscopy report on 13.05.2004 indicated normalcy in Mrs.

Sunita’s airways, and that she was able to breath with a minimal

stridor after ‘TT’ removal.

42. The NCDRC carefully observed that Mrs. Sunita was

responding well to her treatment until the removal of the existing

‘TT’ or until the ‘NI’ procedure was conducted. However, it 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 immediate medical crisis from the vehicular

accident whereafter she was admitted to Suretech Hospital in a

semi-comatose state was resolved with steady recovery. On

08.05.2004, the patient was weaned off ventilator support. Three

days later, a Mandibular Bracing Surgery was undertaken

successfully fixing her lower jaw as well. Therefore, Dr.

Page 33 of 42

Madhusudhan submitted that ‘TT’ decannulation was undertaken

only after due care and consideration was given to the decision.

43. On 11.05.2004, decannulation failed. Subsequently, on

13.05.2004 when decannulation was achieved, the desired results

were not attained. Even though it was expected that Mrs. Sunita

would be able to breathe normally after decannulation, a stridor i.e.,

a high-pitched respiratory noise which indicates abnormal airflow

was discovered. The NCDRC failed to appreciate that a

reexamination conducted upon observing breathing difficulty faced

by Mrs. Sunita revealed trauma in her tracheal wall. It was due to

this trauma that the anterior flap of the tracheal wall was getting

sucked during inspiration thereby obstructing tracheal lumen. The

said trauma was potentially attributable to the severe injuries

sustained by Mrs. Sunita in the road accident and/or during the

emergency ‘TT’ procedure conducted at Gondia hospital on

05.05.2004. Dr. Madhusudhan indicated the need to conduct

tracheoplasty which could not be conducted immediately. Of the

available treatment options to treat the stridor, doctors could either

opt for a long-term ‘TT’ with inner cannula or the placement of an

airway stent for tracheomalacia/stenting. Opting for an ‘NI’ stent

provided the advantage of the stent being able to hold the anterior

flap of the trachea as well as to provide support to weakened trachea

Page 34 of 42

walls, thereby preventing lumen collapse, while at the same time

provide breathing assistance. In such a situation, the ‘NI’ procedure

was chosen as a temporary stent.

44. 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. The expert medical report by RML

hospital stated that tracheal trauma, fractures and injuries in the

laryngeal framework, leading to subsequent medical complications

such as subglottic stenosis were common after severe injuries

sustained in a serious road accident. After difficulties arising out of

‘TT’ decannulation, reinserting the ‘TT’ might have resulted in the

similar or worse difficulties as well. Therefore, resorting to the ‘NI’

procedure as an alternative method to provide breathing assistance

did not appear to be out of place either. 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.

Page 35 of 42

45. As reasoned earlier, 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 is no evidence to

establish that the ‘NI’ procedure is a bad medical practice or based

on unsound medical advice. None of the hospitals where Mrs. Sunita

was treated prior to Suretech Hospital opined that the ‘NI’ procedure

was not medically acceptable. Additionally, none of the doctors who

treated her subsequently opined that the ‘NI’ treatment was not a

medically acceptable practice or that the said procedure had been

performed negligently. 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, no negligence was committed in opting for

and/or conducting the aforesaid procedure.

46. Moreover, there was no breach of duty of care. In view of such

conclusion, it is not necessary to look at a possible causal link

between the subsequent medical complications and voice-loss as

well as the permanent respiratory tract deformity. However, for the

sake of completion, this aspect is also being examined. The RML

hospital’s expert medical committee report noted that after

sustaining severe injuries in a serious road accident, subsequent

trauma in trachea and fractures in laryngeal framework are

Page 36 of 42

commonly found in patients. Severe medical complications like

infections and subglottic stenosis are not unusual in such trauma

cases either. Medical studies placed on record have shown that

injuries in the trachea as well as damage to the larynx is common

after prolonged ‘TT’ intubation or ‘NI’ procedure. Infections or

subglottic-stenosis complications can also be caused if due care is

not taken while choosing an appropriate size for the tubes. There is

also a higher risk if such ‘TT’ and ‘NI’ procedures are done repeatedly

or are done in emergency situations.

47. The patient as can be seen, received treatment in multiple

hospitals, and the ‘TT’ was reinserted several times. On 27.05.2004,

Dr. Pradhan reinserted ‘TT’ at the Prince Aly Khan Hospital,

Mumbai. Another bronchoscopy was conducted on 03.06.2004 by

Dr. Swarnakar, which revealed two openings in Mrs. Sunita’s

trachea at the sub-glottic level in addition to a false passage. Further,

the patient was also under home care for a month from 04.06.2004

to 03.07.2004. She also travelled between Nagpur and Mumbai

during her treatment. Thereafter, the patient with a ‘TT’ in trauma

care stayed at home for another period of six months from

08.07.2004 to 30.01.2005 until Dr. A. G. Pusalkar performed the

tracheoplasty. Finally, the ‘TT’ was removed on 14.03.2005. So,

considering the multiple procedures, prolonged intubation, severe

Page 37 of 42

injuries, and subsequent medical complications, it would be

unsound to link or attribute the complications solely to the ‘NI’

procedure conducted on 13.05.2004.

48. Further, details are missing with respect to the date or time-

frame within which the ‘NI’ was removed. In the complaint filed

before NCDRC by Mrs. Sunita, it was mentioned that the ‘NI’ was

removed on 20.05.2004 based on Dr. Kalidas Parshuramkar’ claim.

Since we are aware that Dr. Pradhan re-inserted ‘TT’ on 27.05.2004,

it can be concluded that the maximum possible duration during

which ‘NI’ could have lasted was two weeks i.e., from 13.05.2004 to

27.05.2004. Despite the removal of ‘NI’ and reinsertion of ‘TT’, the

treatment continued till 14.03.2005 i.e., the date on which ‘TT’ was

removed for the last time. Subsequent medical complications could

have occurred or magnified at any point during the long course of

treatment at multiple hospitals and by various doctors. Therefore, a

causal link has not been established between the ‘NI’ procedure

(dated 13.05.2004) and the subsequent medical complications such

as voice-loss and permanent respiratory tract deformity.

49. As the main charge of negligence regarding the aforesaid ‘NI’

procedure is found to be unsubstantiated, the issue of not

impleading Dr. Rajesh Swarnakar in the context becomes irrelevant.

However, the plea raised by the doctors and Suretech Hospital

Page 38 of 42

seeking rejection of Mrs. Sunita’s Consumer Case No. 48/2005 on

account of non-impleadment of necessary parties is not acceptable.

When the consumer case was filed, a charge of negligence against

Dr. M.A Biviji was leveled in relation to the ‘Barium Swallow Test’.

Moreover, there was also a negligence charge with respect to Dr.

Nirmal Jaiswal, Dr. Madhusudan Shendre, and Dr. M.A Biviji

regarding ‘Severe Thrombocytopenia’ and ‘Severe Septicemia’.

Additionally, there was an allegation of negligence against Dr.

Nirmal Jaiswal and Dr. Madhusudan Shendre for unjustifiably and

forcefully performing ‘NI’ procedure on Mrs. Sunita which resulted

in the subsequent medical complications. All the aforementioned

charges are factual in nature. A necessary party cannot always be

identified at the threshold without looking at the evidence. On this

aspect, the Court in Savita Garg v. Director, National Heart Institute

3

held that in case of an allegation of negligent treatment at a hospital,

the burden to establish the absence of such negligence lies on the

hospital itself. The hospital can discharge such burden by producing

the concerned doctor to establish that due care was taken. Needless

to say, hospitals must account for the services discharged by doctors

engaged by them.

3

(2004) 8 SCC 56

Page 39 of 42

CONCLUSION

50. Taking into consideration the medical literature on record as

well as the expert medical committee report presented by the RML

Hospital, it is reasonable to conclude that subglottic stenosis &

subsequent trauma in the trachea is not an uncommon

phenomenon with respect to a patient that has suffered serious

injuries in a road accident. In addition, there tends to be a higher

risk element of developing an injury if intubation is done in an

emergency situation or multiple times. It could also be a result of

being subjected to intubation for a prolonged period.

51. In this particular case, the patient was treated and underwent

different procedures at multiple hospitals. She underwent the ‘TT’

procedure at Gondia Hospital in an emergency situation.

Subsequently, she was attended to by multiple medical experts at

Suretech Hospital. Therefore, there is a possibility that these

medical complications could have arisen at any of these hospitals or

places where the patient underwent treatment.

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

Page 40 of 42

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

Page 41 of 42

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.

Page 42 of 42

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.

………………………………J.

[HRISHIKESH ROY]

………….……………………J.

[MANOJ MISRA]

NEW DELHI;

OCTOBER 19, 2023.