Dr KK Aggarwal
National President, IMA

In a judgement in the case of Bijoy Sinha Roy (D) vs Biswanath Das & Ors. Civil Appeal no(S).4761 of 2009 with C.A. Nos. 4762-4763 of 2009, delivered on August 30, 2017, the Supreme Court of India concurred with the appellant (since deceased) when it said, “We however, find that neither the State Commission nor the National Commission have examined the plea of the appellant that the operation should not have been performed at a nursing home which did not have the ICU when it could be reasonably foreseen that without ICU there was post-operative risk to the life of the patient. There was no serious contest to this claim by the opposite parties”.

Here is a synopsis of the course of events.

• The appellant Bijoy Sinha Roy underwent a hysterectomy for multiple uterine fibroids on 1.12.93 morning (8.45 am) at a nursing home in Kolkata. She was hypertensive and had anemia (Hb 7).
• Postoperatively, she did not regain consciousness and she was shifted twice, first to a nursing home and then to SSKM Hospital as the nursing home where she underwent the surgery did not have an ICU facility. The appellant passed away on 17.1.94 at SSKM Hospital.
• A case of medical negligence was filed before the State Consumer Redressal Commission on two accounts: firstly, performing the surgery without first controlling the high BP and controlling the anemia and secondly, decision to perform the surgery at a nursing home which did not have an ICU for postoperative care of the patient.
• In 2005, the State Commission found in favor of the appellant and gave a verdict of medical negligence for performing the surgery without first controlling the high BP and anemia, as the surgery was not an emergency procedure, but an elective procedure.
• In 2007, the National Commission exonerated the doctor on charge of medical negligence and reversed the order of the State Commission.
• On August 30 this year the Apex Court ruled on this case. The Bench of Justices Adarsh Kumar Goel and Uday Umesh Lalit upheld the view of the National Commission in holding that decision to perform surgery may not by itself be held to be medical negligence. But, as the matter had been pending for the last 23 years, the Court directed the doctor to pay a sum of Rs.5 lakh to the heirs of the appellant without any interest to be deposited with the State Commission within 3 months, with an interest of 12% p.a., if not done so within the stipulated three months.
In this judgement, the Supreme Court has only made an ‘observation’ and has not ‘pronounced a judgement’ that performing surgeries in nursing homes without an ICU facility is liable for medical negligence. This does not mean that having an ICU now becomes mandatory for all nursing homes or other health care facilities.

Nevertheless, it is an observation of great significance that should be taken cognisance of.

Because this judgement re-emphasizes the importance of and the need for informed consent.

This judgement needs to be read along with the judgement of the UK Supreme Court in 2015 on informed consent in the case of Montgomery v Lanarkshire Health Board, where it held that the doctor has a duty “to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments”. A doctor practicing in the UK now has to inform the patient of all possible risks, even though rare, and let the patient take a decision.

This judgement also needs to be read along with the infrastructure available at various hospitals and establishments.

Before proceeding with a surgery, the patient and the family must be informed, if your nursing home does not have an ICU, but has a tie up with another healthcare facility, where the patient may be shifted to if he/she becomes critically ill. The consent form must clearly mention this information.

It has been the unwavering stand of the Indian Medical Association (IMA) that all nursing homes and such health care establishments should have a tie up with the nearest ICU facility where the patient can be shifted to in case any complications such as air embolism, pulmonary embolism develop.

However, these nursing homes must have the required first-aid back up to manage such complications, should they develop. Ambu bag, oxygen, stand by defibrillator and portable transfer ventilator should be available within the establishment. Equipped ambulance/s must be available on call to transfer the patient to another facility or hospital, when required.
Judgment attached…