CIVIL APPEAL NO.7380 OF 2009 Dr. Harish Kumar Khurana Versus Joginder Singh & Ors. With CIVIL APPEAL NO.8118/2009 & CIVIL APPEAL NO.6933/2009 decided by the Hon’ble SUPREME COURT OF INDIA on 07.09.2021
FACTS: The patient Smt. Jasbeer Kaur visited the appellant hospital on 08.10.1996 was diagnosed with kidney stone in her right kidney, was advised to undergo surgery by the treating surgeon Dr. R.K. Majumdar, examined as an outpatient had come back to the hospital only on 03.12.1996. On being examined again at that point, it was noticed that the right kidney had been severely damaged and the left kidney was also diagnosed with a stone, Hydronephrosis, Grade IV with renal stone in the right kidney and Hydronephrosis of Grade II in the left kidney. As advised earlier, the patient was again advised surgery. The patient admitted herself on 06.12.1996 and was declared fit for surgery, on 07.12.1996, Dr. H.K. Khurana informed the patient as also her husband that both the kidneys could not be operated at the same time due to the severe damage. They were advised that as per the medical practice, the less affected kidney that is the left kidney would be operated in the beginning since complete removal of the right kidney cannot be ruled out. In such eventuality, the left kidney if rectified would be able to function. On 09.12.1996 an informed consent of highrisk surgery was obtained from the patient as well as her husband. The respondent No.1 and Dr. R.K. Majumdar were involved in performing the surgery of the left kidney, which was a successful operation. As per the say on behalf of the hospital and the doctors, the condition of the patient improved by 12.12.1996 due to which the possibility of the second surgery to the right kidney was considered. The necessary tests conducted by the anaesthetist, the physician and the surgeon resulted in clearing the patient for the second surgery. The second surgery was prepared to be conducted on 16.12.1996 and the patient was taken to the operation theatre around 9:45 a.m., Dr. H.K. Khurana administered the injections of Pentothal Sodium and Scolin as per the medical practice. Subsequent thereto, an endotracheal tube of 7.5 mm diameter was inserted in the trachea to give nitrous oxide and oxygen. The appellants contend that the said standard procedure was also followed during the first surgery but on the present occasion the condition of the patient deteriorated, the blood pressure fell and pulse became feeble. The cardiac respiratory arrest was noticed. The efforts said to have been made by the doctors including the physician did not yield result, though the patient had been put on Boyle’s machine and necessary oxygen was supplied using the same. In the evening, the patient is stated to have been put on an automatic ventilator and was shifted to critical care unit. Despite the best efforts, the patient expired on 23.12.1996. Complainants alleged that though, the operation on the left kidney conducted on 09.12.1996 was successful, it is contended that the surgeon who had conducted the operation namely, Dr. Majumdar had recorded in the case sheet that the patient has poor tolerance to anaesthesia, that the second operation within the short duration was forced upon the patient which led to the consequences, appropriate care was not taken and the required medical equipment more particularly the ventilator was not kept available, that the consent of the patient had not been obtained for the second operation, that even after the patient suffered a cardiac arrest proper care was not taken in having the presence of the cardiologist or a neurologist, that physician who attended the patient had also taken some time to change and attend to the patient and that the negligence on the part of the doctors as well as the hospital had resulted in the death of the patient.
DEFENCE: That the high risk involved in the second operation was made known to the patient and the cardiac arrest which occurred in the present case is likely to occur in certain cases for which appropriate care had been taken by the doctors, that the observation relating to poor tolerance to anaesthesia was explained as not being a major issue inasmuch as the earlier operation was successful and was not eventful though anaesthesia had been administered in the same manner for the first surgery. In the patient’s sheet maintained by the hospital on 13.12.1996 the doctor had recorded that the surgical recovery which related to the first operation conducted on 09.12.1996, to be excellent. On 14.12.1996, the observation recorded also indicated that the patient is insisting for surgery of the other side, also keeping in view the requirement of the surgery to the right kidney which was damaged, a decision was to be taken in that regard. The informed consent was obtained from the husband of the patient where the risk factor had also been recorded.
OBSERVATIONS: On behalf of the claimants no medical evidence was tendered. Though from the available records the NCDRC could have formed its opinion with reference to medical evidence if any, the nature of the conclusion recorded is necessary to be noted.
“We are surprised to note that the treating doctor after recording that the patient had poor tolerance to anaesthesia has tried to defend his action by stating that poor tolerance to anaesthesia means nothing.”
“However, we cannot be oblivious of the fact that Dr. Khurana was the Anaesthesiologist during the first surgery also and he was fully aware of the conditions of the patient. In reply to the interrogatories, he has clearly admitted that he has gone through the notings of Dr. Mazumdar wherein he has said the patient has poor tolerance to anaesthesia. We are stunned to note that he has stated in the reply to interrogatories that in medical parlance poor tolerance to anaesthesia means nothing’.”
“It is common knowledge that a person can survive with one kidney, just as a person can survive with one lung. There are cases where a patient suffers from failure of both the kidneys and nephrectomy is performed to replace one of the damaged kidneys by a kidney of a donor after proper test and verification. Therefore, there was no hurry to perform the second surgery.”
HELD: The extracted portion would indicate that the opinion as expressed by the NCDRC is not on analysis or based on medical opinion but their perception of the situation to arrive at a conclusion. Having expressed their personal opinion, they have in that context referred to the principles declared regarding Bolam test and have arrived at the conclusion that the second surgery should not have been taken up in such a hurry and in that context that the appellants have failed to clear the Bolam test and therefore they are negligent in performing of their duties. The conclusion reached to that effect is purely on applying the legal principles, without having any contra medical evidence on record despite the NCDRC itself observing that the surgeon was a qualified and experienced doctor and also that the anaesthetist had administered anaesthesia to 25,000 patients and are not ordinary but experienced doctors. On the aspect relating to the observation of poor tolerance to anaesthesia and the period of performing the second operation from the time of first operation was conducted it was a highly technical medical issue which was also dependant on the condition of the patient in a particular case which required opinion of an expert in the field. There was no medical evidence based on which conclusion was reached with regard to the medical negligence. The observations of the NCDRC in their opinion appears to be that the second operation ought not to have been conducted and such conclusion in fact had led to the other issues also being answered against the appellants which is not backed by expert opinion. In the above circumstance when there was no medical evidence available before the NCDRC on the crucial medical aspect which required such opinion, the mere reliance placed on the magisterial enquiry would not be sufficient. Though the opinion of the civil surgeon who was a member of the committee is contained in the report, the same cannot be taken as conclusive since such report does not have the statutory flavour nor was the civil surgeon who had tendered his opinion available for crossexamination or seeking answers by way of interrogatories on the medical aspects. Therefore, if all these aspects are kept in view, the correctness or otherwise of the line of treatment and the decision to conduct the operation and the method followed were all required to be considered in the background of the medical evidence in the particular facts of this case. As indicated, the mere legal principles and the general standard of assessment was not sufficient in a matter of the present nature when the very same patient in the same set up had undergone a successful operation conducted by the same team of doctors. Hence, the conclusion as reached by the NCDRC is not sustainable. The appeals are accordingly allowed. There shall be no order as to costs.
