SC fines doctor for operating in nursing home sans ICU
08 September 2017
The Supreme Court has held a doctor from Bengal guilty of negligence for carrying out a major operation at a nursing home that lacked an intensive care unit, potentially laying open all hospitals that have surgery facilities but no ICUs to a similar charge.
With the case having dragged for 23 years, the court directed the National Consumer Disputes Redressal Commission to ensure that all state consumer forums dispose of such cases quickly - if necessary, by making use of videoconferencing.
Dr Biswanath Das has been asked to pay Rs5 lakh as compensation to the family of Bani Sinha Roy of Calcutta, who died in January 1994 after a hysterectomy by Dr Das at Ashutosh Nursing Home the previous month.
A bench of Justices A K Goel and U U Lalit said that neither the state nor the National Consumer Disputes Redressal Commission had examined the plea of the appellant (legal heirs of victim Bani Sinha Roy) 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.
''Having regard to the fact that the matter has been pending for the last 23 years, instead of remanding the matter for fresh adjudication on this issue, we consider it appropriate in the interests of justice to direct Dr Bishwanath Das to pay a sum of Rs5 lakh to the heirs of the appellant without any interest within three months,'' the bench said.
The bench also expressed serious concern over the inordinate delay in the disposal of disputes by consumer fora. It said a person coming to a consumer court with a grievance of deficiency in service needs immediate relief. The very objective of setting up a consumer fora was to provide speedy remedy to a consumer.
The case had been pending in the apex court since 2008 after the death of appellant Bijoy Sinha Roy, schoolteacher and husband of Bani.
"It was difficult to track down the other family members to continue the battle," the family's lawyer, Suchit Mohanty, told The Telegraph.
"Somehow I managed to substitute Bijoy with his US-based son, Sowmik Sinha Roy, as the legal heir to continue the battle."
Earlier, the case had dragged for 11 years at the state consumer commission, which in September 2005 ruled there was medical negligence, saying the surgery had been performed without controlling the blood pressure and haemoglobin.
It awarded Sinha Roy Rs5 lakh in compensation, of which Dr Das was to pay Rs3 lakh and Dr P K Mukherjee, the nursing home owner, Rs2 lakh.
Both sides appealed to the national consumer commission, which in September 2007 exonerated the doctors. By then, a trial court had quashed the criminal case of negligence against Dr Das and the nursing home.
Most nursing homes in Calcutta have ICU facilities but most in rural Bengal don't, health officials in Bengal said.
"Even a few years ago, many government-run district hospitals didn't have ICU facilities although surgeries were taking place in these hospitals," an official told The Telegraph.
He said that although it was not mandatory for nursing homes to have ICUs, those that lacked the facility were required to state this clearly in the consent form that a patient's relatives need to sign before surgery.
Dr Das, a gynaecologist, had diagnosed Bani with multiple fibroids in the uterus and performed the hysterectomy at Ashutosh Nursing Home. She had high blood pressure and her haemoglobin level was about half the normal.
She did not regain consciousness after the 1 December 1993 operation and, since the nursing home lacked an ICU, was shifted at 2.15pm to Repose Nursing Home. She was later taken to SSKM Hospital, where she died on 17 January 1994.
The apex court said the fine should be deposited with the state commission within three months, and delayed payment would be subject to an annual interest of 12 per cent.