Why are we in Denial

The surprisingly vociferous uproar in defense of the Supreme Court judgment from senior medical leaders and from others gives me a feeling of "Deja vu". For all those who claim that "Supreme Court has not said that surgery cannot be done in nursing home without ICU"

1) Why was penalty of 5 lacs awarded ?
Penalty was awarded because patient was operated in nursing home where ICU facility was not there.

2) Did the Supreme Court mention anything about Consent ?
No. So where has this argument sprung from that it has to be mentioned in consent that you do not have ICU.

3) Did the SC order that in future no operation can be done in a nursing home which does not have an ICU ?
No. But it does not need to so order. Once penalty has been awarded it automatically means that the court has held the act of operating in a nursing home which does not have an ICU as negligent. Today 5 lacs has been awarded. This tomorrow may go into many crores. This judgment automatically becomes case law which will be misused in other cases of alleged medical negligence against doctors.

4) Has this "living in denial" happened earlier ?
Yes. When CPA was passed we were reassured that it is only to penalize greedy and unethical private practitioners and would not affect the ethical doctors in private sector and Government sector would not be touched. When V P Shantha & Ors Judgment brought doctors within the ambit of CPA my feeble criticism was shouted down by loud proclamations that it did not mean the end of the world for doctors. When CEA Bill was formulated in 2010 I was told I am rabble rousing. When Dr Sukumar Mukherjees judgment was delivered in 2013 I was told these high compensations would be awarded only against hospitals and not individual doctors. Now we have 70 lacs compensation against individual doctor with the hospital not been penalized at all. We have Government Hospitals which have been awarded 3.6 crore compensation. Same is going to happen in this case.

5) Has the Supreme Court adjudicated on the issue of no surgery should have been done in absence of ICU ?
Yes. Once SC has awarded compensation it has upheld the complainants contention that surgery should not have been performed in nursing home not having ICU , it has ADJUDICATED on the matter. The SC did not remand the matter to NC or State Commission for fresh adjudication in view of 23 yrs delay and decided it by itself. Whether this issue was contested by opposite parties or not is of no consequence. Complainant if had irrationally claimed that the doctor deliberately used a weapon to kill his mother, it would have been dismissed by court whether or not it was countered. The very fact that the complainants plea was accepted and compensation awarded proves that the Supreme Court has adjudicated the matter in favor of the complainant on the issue that surgery should not have been conducted in nursing home which did not have ICU.

6) Has the court said that operating "HIGH RISK" patient in nursing home without ICU is negligence ?
No the SC has not mentioned the HIGH RISK criterion while awarding compensation in this case. It is the interpretation of few persons that this judgment will hold true only for high risk cases.

I again reiterate. Honourable SC has opined that there was no negligence of doctors in deciding to do the surgery or in the actual surgery. The negligence was in doing the surgery in a nursing home which did not have an ICU and on this ground compensation has been awarded. This ground will be used to allege negligence against their doctors by future litigants whatever be the platitudes being dished out today.

Dr Neeraj Nagpal 
Convenor,Medicos Legal Action Group, Managing Director MLAG Indemnity,
Ex President IMA Chandigarh
Director Hope Gastrointestinal Diagnostic Clinic,
1184, Sector 21 B Chandigarh 
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