Law is dynamic. It changes everyday. At the same time it must also be certain and definite so that every citizen knows what is legally right and what is wrong. This is a cause of concern for all.
In medical law, the situation is more knotty. Thanks to Bolams principle, what is right or wrong has to be in accordance with opinion of doctors, especially on procedural aspects of medicine. But in India there are no standard or prescribed protocols laid down by the medical fraternity. In the absence of any such standards, courts give judgments on a case-to-case basis. Unfortunately, this state of affairs is causing utmost hurt to the doctors themselves.
Let us take the case of equipments required in operation theater (OT). There are two recent cases on this issue. In the case of Abdul Rahim v/s Dr. Kannaki Thiruvalluvan & Ors. (a170 / j511), the court held that absence of ventilator in a case of hysterectomy was not negligence as the patient was on oxygen support with Boyle’s apparatus till she was transferred. In the case of Jallella Venkata Subbamma v/s D. M. Anjaneyulu & Anr. (a178 / j537), the court outrightly rejected the patient’s allegation that the hospital conducting cataract hospital was negligent as it did not have facilities for conducting surgery of retina. In another old case of Arunaben D. Kothari & Ors. v/s Navdeep Clinic & Ors. (decided in 1996), the Gujarat State Consumer Commission has held that defibrillator is a standard equipment for OT’s and conducting surgery without the same is negligence. This has not been challenged and is still a good law at least in Gujarat.
In spite of these judicial pronouncements no one can say with confidence that conducting a by-pass surgery without ventilator is not negligence if Boyle’s apparatus is present in OT and removing a small abscess under local anesthesia without a defibrillator in OT is negligence.
The uncertainty on such an important issue is detrimental not only for doctors or patients but also for the entire health sector. On one hand, absence of requisite equipments in OT will put the life and limb of the patient at risk. The doctor obviously will be held negligent by the courts. But on the other hand, an overequipped OT with useless equipments kept only to indemnify a doctor against future litigation would be another manifestation of defensive medicine. In a developing country like ours, this wastage of limited resources is culpable and unpardonable.
To start with, doctors and medical associations of surgeons and interventionists could come together, discuss, debate, and lay down some common minimum standards for equipments required in OT for different classes of surgeries. India has its own very distinctive social and economic topography. Hence, special provisions will have to be provided for OT’s operating in rural or backward regions so that modern medicine remains affordable and within reach of all.
Such an exercise will certainly soothe the anxieties of surgeons and interventionists at least on one aspect, that is, equipments required in OT. This healthy precedent can then be followed for other aspects of surgery as well as by other specialties.