M.A BIVIJIversusSUNITA & ORS.

                 [2023] 15 S.C.R. 113 : 2023 INSC 938



                            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 unjustifiable ‘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 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; (2) In the
instant case, the patient was treated and underwent different procedures
                                    113
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 different individual cases, coupled with the constant advancement in the
medical field and its practices, it is natural that there shall always be different
                  M.A BIVIJI v. SUNITA & ORS.                             115


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 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. [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 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 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
                  M.A BIVIJI v. SUNITA & ORS.                               117
                     [HRISHIKESH ROY, J.]

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 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 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.
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 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 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.
                  M.A BIVIJI v. SUNITA & ORS.                           119
                     [HRISHIKESH ROY, J.]

      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 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 compensation against loss and injury suffered 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 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 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’.
      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’.
                  M.A BIVIJI v. SUNITA & ORS.                            121
                     [HRISHIKESH ROY, J.]

       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 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 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
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
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 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.
                   M.A BIVIJI v. SUNITA & ORS.                                123
                      [HRISHIKESH ROY, J.]

                              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 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 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
124          SUPREME COURT REPORTS                         [2023] 15 S.C.R.


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. 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 different Ophthalmologists
                  M.A BIVIJI v. SUNITA & ORS.                              125
                     [HRISHIKESH ROY, J.]

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, 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
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
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 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 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 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
                  M.A BIVIJI v. SUNITA & ORS.                             127
                     [HRISHIKESH ROY, J.]

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 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 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.
128          SUPREME COURT REPORTS                         [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 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 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
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 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
                     M.A BIVIJI v. SUNITA & ORS.                         129
                        [HRISHIKESH ROY, J.]

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 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
Punjab1, 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 considerations


1   (2005) 6 SCC 1
130           SUPREME COURT REPORTS                         [2023] 15 S.C.R.


      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
                  M.A BIVIJI v. SUNITA & ORS.                             131
                     [HRISHIKESH ROY, J.]

     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.”
     35. Following Jacob Mathew, the Court in Kusum Sharma vs. Batra
Hospital2 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.



2   (2010) 3 SCC 480
132           SUPREME COURT REPORTS                          [2023] 15 S.C.R.


      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 their professional duties without
      fear and apprehension. ….”
      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.
     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
                  M.A BIVIJI v. SUNITA & ORS.                              133
                     [HRISHIKESH ROY, J.]

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
     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 Pulmonologist
& 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.
134          SUPREME COURT REPORTS                          [2023] 15 S.C.R.


      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 saidprocedure 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 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-
                  M.A BIVIJI v. SUNITA & ORS.                              135
                     [HRISHIKESH ROY, J.]

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. 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 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
136          SUPREME COURT REPORTS                         [2023] 15 S.C.R.


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
caseand Kusum Sharma case, adopting an alternative medical course of
action would not amount to medical negligence.
      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 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.
                  M.A BIVIJI v. SUNITA & ORS.                             137
                     [HRISHIKESH ROY, J.]

      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 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 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
138            SUPREME COURT REPORTS                       [2023] 15 S.C.R.


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 Institute3held
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.
                              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


3     (2004) 8 SCC 56
                  M.A BIVIJI v. SUNITA & ORS.                             139
                     [HRISHIKESH ROY, J.]

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. 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 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
140            SUPREME COURT REPORTS                      [2023] 15 S.C.R.


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.
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.


Headnotes prepared by:                                      Appeals disposed of.
Ankit Gyan