# CASE DETAILS M.A BIVIJI v. SUNITA & ORS

- **Citation:** 2023 INSC 938
- **Court:** Supreme Court of India
- **Decided:** 2023-10-19
- **Case number:** Civil Appeal No. 3975 of 2018
- **Bench:** Hrishikesh Roy, Manoj Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/case-details-m-a-biviji-v-sunita-ors-36817
- **Pages:** 28

## Headnote

Issue for consideration: The complainant alleged negligence on the
part of a Hospital - The main claim of negligence that the complainant
attributed was that the forced Nasotracheal Intubation (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.
Negligence - Medical Negligence - The NCDRC concluded that
the negligence charge regarding the unjustifi able 'NI' procedure
was proved - The act of replacing the existing Tracheostomy Tube
(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 - The NCDRC awarded complainant a compensation of
Rs. 6,11,638/- @ 9% p.a. for the medical expenses she incurred at
Hospital - Propriety:
Held: (1) 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 suff ered 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; (2) In the
instant case, the patient was treated and underwent diff erent procedures
114
SUPREME COURT REPORTS
[2023] 15 S.C.R.
at multiple hospitals - Therefore, there is a possibility that these medical
complications could have arisen at any of these hospitals or places where the
patient underwent treatment; (3) The medical report available in this case
i.e., the RML Hospital Committee Report did not attribute any negligence
to Hospital in question or the doctors with respect to any of the charges
levelled against them - If the 'NI' procedure had been conducted in a
negligent manner or was 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; (4) The medical team at Hospital in
question was able to show that the 'NI' procedure was carried out 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 - Resultantly, there was
no breach of duty of care at Hospital in question or on part of the doctors
- The charge of negligence is, therefore, not proved - Impugned judgment
set aside. [Paras 50, 51, 52, 53, 56]
Negligence - Medical Negligence - Essential ingredients for
determination:
Held: 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. [Para 36]
Negligence - Medical Negligence - A line of treatment undertaken
should not be of a discarded or obsolete category in any circumstance:
Held: Due to the unique circumstances and complications that arise
in diff erent individual cases, coupled with the constant advancement in the
medical fi eld and its practices, it is natural

## Text

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[2023] 15 S.C.R. 113 : 2023 INSC 938
113
CASE DETAILS
M.A BIVIJI
v.
SUNITA & ORS.
(Civil Appeal No. 3975 of 2018)
OCTOBER 19, 2023
[HRISHIKESH ROY AND MANOJ MISRA, JJ.]
HEADNOTES
Issue for consideration: The complainant alleged negligence on the
part of a Hospital - The main claim of negligence that the complainant
attributed was that the forced Nasotracheal Intubation (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.
Negligence - Medical Negligence - The NCDRC concluded that
the negligence charge regarding the unjustifi able 'NI' procedure
was proved - The act of replacing the existing Tracheostomy Tube
(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 - The NCDRC awarded complainant a compensation of
Rs. 6,11,638/- @ 9% p.a. for the medical expenses she incurred at
Hospital - Propriety:
Held: (1) 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 suff ered 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; (2) In the
instant case, the patient was treated and underwent diff erent procedures
114
SUPREME COURT REPORTS
[2023] 15 S.C.R.
at multiple hospitals - Therefore, there is a possibility that these medical
complications could have arisen at any of these hospitals or places where the
patient underwent treatment; (3) The medical report available in this case
i.e., the RML Hospital Committee Report did not attribute any negligence
to Hospital in question or the doctors with respect to any of the charges
levelled against them - If the 'NI' procedure had been conducted in a
negligent manner or was 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; (4) The medical team at Hospital in
question was able to show that the 'NI' procedure was carried out 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 - Resultantly, there was
no breach of duty of care at Hospital in question or on part of the doctors
- The charge of negligence is, therefore, not proved - Impugned judgment
set aside. [Paras 50, 51, 52, 53, 56]
Negligence - Medical Negligence - Essential ingredients for
determination:
Held: 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. [Para 36]
Negligence - Medical Negligence - A line of treatment undertaken
should not be of a discarded or obsolete category in any circumstance:
Held: Due to the unique circumstances and complications that arise
in diff erent individual cases, coupled with the constant advancement in the
medical fi eld and its practices, it is natural that there shall always be diff erent
115
M.A BIVIJI v. SUNITA & ORS.
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. [Para 37]
Negligence - Medical Negligence - A higher threshold limit must
be met to hold a medical practitioner liable for negligence:
Held: 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 fulfi lled 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. [Para 38]
LIST OF CITATIONS AND OTHER REFERENCES
Jacob Mathew vs. State of Punjab (2005) 6 SCC 1 : [2005] 2 Suppl.
SCR 307; Kusum Sharma vs. Batra Hospital (2010) 3 SCC 480 : [2010] 2
SCR 685; Savita Garg v. Director, National Heart Institute (2004) 8 SCC
56 : [2004] 5 Suppl. SCR 359 - relied on.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CIVIL APPELLATE JURISDICTION: Civil Appeal No.3975 of 2018.
From the Judgment and Order dated 16.02.2018 of the National
Consumer Disputes Resolution Commission, New Delhi in Consumer Case
No.48 of 2005.
116
SUPREME COURT REPORTS
[2023] 15 S.C.R.
With
C.A. No.4847 of 2018 and 6917 of 2023.
Appearances:
Fanish Kumar Rai, Gaurav Sahdev, Shantanu Sagar, Vinod Kumar,
Rajesh Kumar, Keshav Sharma, Shakul R. Ghatole, Sudhanshu S. Choudhari,
Advs. for the appearing parties.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
HRISHIKESH ROY, J.
Delay condoned.
2. The Civil Appeals have been fi led 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 fi led by Mrs. Sunita Parvate. The NCDRC directed Suretech
Hospital and Research 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
fi ling 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 unjustifi able 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 fi led 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 fi led by Suretech Hospital, Dr. Nirmal Jaiswal, and
Dr. Madhusudan Shendre completely denying that any negligence was
117
committed during Mrs. Sunita's treatment in Suretech Hospital. Whereas
Mrs. Sunita fi led Civil Appeal 4847 of 2018 seeking enhancement of
compensation ordered for medical negligence during her treatment. She
further prayed for enhancement of 9% interest p.a. to 18% interest p.a. The
claimant, Mrs. Sunita fi led 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 suff ered 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 Bracing Surgery' to correctly
set Mrs. Sunita's left-side mandibular fracture in place. The surgery was
performed 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.
M.A BIVIJI v. SUNITA & ORS.
[HRISHIKESH ROY, J.]
118
SUPREME COURT REPORTS
[2023] 15 S.C.R.
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 entered
the respiratory tract only due to the infl ated 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, specifi cally 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 eff orts 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 unsatisfi ed with her treatment at Suretech
hospital sought a discharge. On 27.05.2004, she fl ew to Mumbai, to meet Dr.
Sultan Pradhan in Prince Aly Khan Hospital who advised her to fi rst treat
life-threatening conditions like diffi cult 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.
119
M.A BIVIJI v. SUNITA & ORS.
[HRISHIKESH ROY, J.]
9. Upon being advised rest, Mrs. Sunita fl ew 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
fl ew 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 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 fi led 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 compensation against loss and injury suff ered by her
and her family. The complainant claimed that due to Dr. Nirmal Jaiswal,
120
SUPREME COURT REPORTS
[2023] 15 S.C.R.
Dr. Madhusudan Shendre, and Dr. M.A Biviji's negligence she suff ered
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 signifi cant 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 forcefully-conducted 'NI' procedure
was the only reason she suff ered from voice-loss and permanent deformity
in her respiratory tract. The 'NI' procedure was carried out, despite multiple
failures in decannulating the 'TT'.
Rebuttalto 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'.
121
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 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 had been fi led 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 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
M.A BIVIJI v. SUNITA & ORS.
[HRISHIKESH ROY, J.]
122
SUPREME COURT REPORTS
[2023] 15 S.C.R.
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 to be
discovered in the future, arising out of serious injuries sustained in a road
accident. The doctors contented that the subsequent medical complications
suff ered by Mrs. Sunita could have also come to eff ect 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 fi x 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 diffi culty 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 fl ap of the tracheal wall getting
sucked during 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 fl ap
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 fl ap and tracheal wall healing completely, the 'NT' would have
been removed restoring normal airway. Therefore, Dr. Rajesh Swarnakar
conducted the requisite 'NI' procedure.
123
NCDRC Judgment
17. In relation to the main allegation in the complaint regarding the
'TT' unnecessarily being replaced by 'NI', even though the 1st 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
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 justifi cation, 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 unjustifi able '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 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
M.A BIVIJI v. SUNITA & ORS.
[HRISHIKESH ROY, J.]
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[2023] 15 S.C.R.
stoma wound, and observing normalcy in the morning, whereas he averred
observing the patient having breathing diffi culty 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 justifi cation 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 signifi cantly 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. 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 was in a position to complain about
blurred vision. Further, tests conducted by two diff erent Ophthalmologists
125
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, unjustifi ably, '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 voiceloss suff ered 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, 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 NCDRC
JUDGMENT:
25. Assailing the NCDRC Judgment dated 16.02.2018, Mrs. Sunita
fi led 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 unjustifi ed forced
'NI' procedure, replacing the existing 'TT', the NCDRC erred in holding
M.A BIVIJI v. SUNITA & ORS.
[HRISHIKESH ROY, J.]
126
SUPREME COURT REPORTS
[2023] 15 S.C.R.
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 reason why she
lost her voice and suff ered 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
suff ered 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 medical science, 95% subglotticstenosis 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/- for losing
her voice. She seeks another Rs. 5,00,000/- for permanent disfi guration
of her neck. She further sought Rs. 50,00,000/- as compensation towards
the mental and physical suff ering 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
suff ering undergone by the patient's children due to her disability.
27. Assailing the impugned decision passed by the NCDRC, Dr. M.A
Biviji fi led 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 fi led Civil Appeal (Diary) No. 21513 of 2018. It was averred that
127
the expert medical board formed by Ram Manohar Lohia Hospital did
not fi nd 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 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 fi nd
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 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 fi rst 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.
M.A BIVIJI v. SUNITA & ORS.
[HRISHIKESH ROY, J.]
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[2023] 15 S.C.R.
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 suff ered 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
suff ered in the road accident or the emergency 'TT' procedure conducted
at Gondia Hospital. Such injuries ultimately lead to subglotticstenosis.
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
suff ered 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 leading to
thrombocytopenia i.e., platelet levels falling signifi cantly to dangerously low
levels, and negligence with respect to the 'Barium Swallow Test' causing
breathlessness in Mrs. Sunita, are not proved.
31. Two diff erent ophthalmologists at Suretech hospital attended to
Mrs. Sunita and found a normal retina. As per the expert medical committee's
129
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 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 fi nd that the NCDRC rightfully held that the aforesaid charges
were not proved.