Medical Negligence – Medical Professionals need to be Trusted—-AGAIN!

Breaking News – The Max Hospital incident did not lead to only 1 death…it led to 2.

One was the unfortunate baby and the second casualty was another fragile baby entity called Trust!

The worst thing which happens after an incident such as the Max Hospital fiasco is the loss of trust.

Both, the trust of a Patient towards the Doctor and the trust of a Doctor towards the patient.

Medicine as like any other profession is not Binary in nature. Experimentation, Taking a chance even if it is remote is as much a part of the medical practice as memorizing the normal blood sugar level of a healthy adult!

I am not in the business of sermons and philosophy… I let the learned men from other universities do so.

I am a professional who knows and appreciates probabilities and how the law interprets these probabilities.

Hope the lawyers at Max Hospital are reading.


First, the aforementioned news for the uninitiated.

And then the kneejerk decision of the Government to cancel the license of the hospital !!!!


What you are about to read can be a plausible legal defense for Max Hospital in this case. So, Max Hospital go ahead …use it and thank Santa Claus!

Let us begin:

Undisputed Fact is that the fetus in the Max case was a result of a 22-week pregnancy weighing around 400 grams as per the alleged case against the Hospital.

  • What is a viable fetus?

A viable pregnancy, a viable baby or fetus may refer to the time in pregnancy when the baby, if born now and prematurely, has a reasonable chance of survival.

For most hospitals in the United States the age of viability is about 24 weeks 0 days of the pregnancy though more recently viability has been considered earlier, around 23 weeks and 0 days.

At 24 weeks is the cutoff point for when many doctors will use intensive medical intervention to attempt to save the life of a baby born prematurely including doing a cesarean section.

Between 23 and 24 weeks is a “gray zone” where most doctors would not intervene.

And below 23 weeks doctors are unlikely to do a cesarean section for fetal reasons and most neonatologist will not resuscitate a baby born before 23 weeks, and many won’t resuscitate a baby born between 23-24 weeks.

A baby born at 24 weeks would generally require a lot of intervention, potentially including mechanical ventilation and other invasive treatments followed by a lengthy stay in a neonatal intensive care unit (NICU).

In countries outside the United States, especially in less industrialized countries, the baby’s chance to survive, the time of pregnancy when it becomes viable, is often as high as 28-30 weeks. This is usually the case when countries have fewer resources to support very premature babies.

A fetus born at 22 weeks of Pregnancy has almost a 0% chance of survival.

 doc 2
Below 22 weeks of pregnancy, it is practically impossible for the fetus to survive

What? Does this imply–that the Hospital shouldn’t even try to save the fetus?

“Of course -Not”

The Hospital certainly has a choice when encountering a medical event like the one in the Max case i.e. Try with all your might and resources to give a ‘life’ to the baby.

Let us ‘imagine’ such a choice being exercised by the hospital. Let us see how does it go …..

Consider a fetus 22 weeks/400 grams born in the hospital. No signs of life!

  1. Now, the Doctor on duty feels some weak heart activity and poor respiratory movement usually missed but attending pediatrician notices it.
  2. Immediately he contacts the father of the baby and asks him to shift to NICU.
  3. Take very high-risk consent about the survival of baby and assure him to do best.
  4.  Consent is given.
  5. Highly skilled neonatologist and staff started taking care in specially equipped NICU having a ventilator and all support system costing in millions.
  6. Costly surfactant treatment was given. Relatives are informed about health twice a day.


 Unfortunately baby dies in a week.

 Now……..The Hospital issues bill of 10,00,000/- Rs for the treatment/procedure.

Everything changes now.

Media and political parties come into play.

Next day headline…

“XYZ hospital puts dead body of a newborn in NICU for a week for money. There is little sign of vitality and least chance of survival. Still, they put the baby on a ventilator and issue 1000000/- Rs bill for same. Doctor and corporate looted patients.”

Politician announces that that hospital will get fine for same.

Does it ring a bell?

If not … then…Read Here:

This, of course, is dependent on whether the Doctor is ABLE to find a sign of life in the fetus – which in turn is another ‘minuscule probability’ case.

Read this report on a detailed survey and clinical analysis in such a condition and you will know that finding traces of life in a fetus at 22 weeks of pregnancy weighing 400 grams is not far from finding aliens in the outer universe, only that it is easier to find aliens!

Objective: To describe the outcome of labor, signs of life at birth, and duration of survival after delivery at 20–23 weeks gestation.

Design: An observational study using data from the Confidential Enquiry into Stillbirths and Deaths in Infancy 1995–2000.

Setting: All deliveries to mothers resident in Trent Health Region.

Patients: 1306 babies delivered at 20–23 weeks gestation.

Below 23 weeks gestation, none survived, and 94% had died within 4 hours of age.

What do the Courts say?

The United States Supreme Court stated in Roe v. Wade (1973) that viability (i.e., the “interim point at which the fetus becomes … potentially able to live outside the mother’s womb, albeit with artificial aid” “is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.”

The 28-week definition became part of the “trimester framework” marking the point at which the “compelling state interest” (under the doctrine of strict scrutiny) in preserving potential life became possibly controlling, permitting states to freely regulate and even ban abortion after the 28th week.

The Bolam Test says- If a doctor reaches the standard of a responsible body of medical opinion, he is not negligent.

Concluding Remarks:

Law at the last foundation stone is a Basic common sense in keeping with the public policy of the country where that particular law is being applied.

In a country like ours, we very easily mix up our emotions with stark practical considerations.

On the one hand, we are not ready to (or able to) pay for costly medical interventions which may sometimes be needed to reverse difficult and improbable medical conditions like happened in Max case and on the other hand we want miraculous results from hamstrung Doctors.

The State and the Governments too, want the ‘Best of the Best’ without so much as even being mildly supportive of the Medical profession.

Doctors are Humans too.

Every error is not Negligence.

If the medical profession becomes skeptical of every patient, they will need to confirm every minor issue in the patient with expensive tests and procedures which will send our medical bills skyrocketing.

This would not go down well with ‘public policy’ of India and the ‘welfare state’ concept as given in the Constitution of India.
So, let us, before slinging a stone at the entire Medical fraternity and tagging them NEGLIGENT !! learn and appreciate the difference between Error and Negligence!

General criticism of Medical profession will certainly backfire

Adv. Sidharth Arora
Supreme Court of India


Please share in the interest of those who may need this knowledge

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