'Supreme' Compensation of Rs. 17 lakhs saddled towards Negligence as the Surgeon and Anaesthetist failed to take precautions to avoid 'known complication' after surgery . Adv. Rohit Erande.©

 'Supreme' Compensation of Rs. 17 lakhs saddled towards Negligence as the Surgeon and Anaesthetist failed  to take precautions to avoid 'known complication' after surgery . 

The Cases of life long disability are more tragic than the Death. Hon. Supreme Court enhanced the Compensation making it Rs.17 lakhs, against the Gen, surgeon and the Anaesthetist. 

Adv. Rohit Erande.©

Case Details :

Shilaben Ashwinkumar Rana vs Bhavin K. Shah & Anr.

CIVIL APPEAL NO.1442 OF 2019.

Before Hon. Supreme Court of India. Coram : Hon. Dr. DHANANJAY Y. CHANDRACHUD & HEMANT GUPTA, JJ.

Judgment Link :

https://indiankanoon.org/doc/131273846/?type=print

Facts in Short :

1. The appeal arises from a judgment of the National Consumer Disputes Redressal Commission (NCDRC) dated 15 May 2014. The finding of a deficiency of service is based on medical negligence of the Respondents, the general surgeon and the anaesthetist..

2. The Son of the appellant was admitted to the Jivanshri Hospital, Balasinor at which the respondents were attached as surgeon and anesthetist. The child who was 21/2 years of age was suffering from penile phimosis (tightening of the foreskin of the penis). On 25 December 2008, the first respondent performed a procedure of surgical circumcision. The procedure took about fifteen minutes. Soon after it was over, the child developed respiratory distress. In consequence, he has been reduced to a vegetative state, from which he has not recovered and hence the Compliant with District forum was filed.

3.  The District Forum was of the view that the principle of 'res ipsa loquitur' applies to the situation. Soon after the surgery, the child suffered from a constriction of the larynx. Due to a spontaneous aspiration of vomit material into the respiratory passage, he has suffered the consequence of a physical and mental disability.

4. The finding of the District Forum on medical negligence has been confirmed both by the SCDRC and NCDRC. The appeal before the SCDRC against the order of the District Forum was filed by the respondents, the two treating doctors. However, aggrieved by the order of the SCDRC, the appellant moved a revision before the NCDRC which enhanced the compensation to Rs.10,00,000 (Rupees Ten Lakhs) together with interest @ 6% per annum. An amount of Rs.30,000 (Rupees Thirty Thousand) was awarded towards the costs of litigation. The present appeal has been instituted in order to seek a further enhancement on the grounds that the child continues to survive, but in a condition which is tragic. Given the requirements of qualified care and help, an enhancement is sought.

Held :

1. Their Lordships relied upon the lower Forums concurrent findings and came to the conclusion that the Treating surgeon and the Anaesthetists, both committed Negligence. 

2. It was observed from the trial Court evidence that the operation was successfully completed in approximately 15 minutes & the child came out of anaesthesia/unconsciousness but was sleepy when he was shifted to a nearby ward where he was being monitored. However, after some time, the doctors were called because the child had respiratory trouble. They rushed to the child and found that the breathing passage was blocked due to spontaneous vomiting and aspiration of the vomit material into the respiratory passages.  Medical literature shows that in a large prospective study of 1,36,929 patients, the overall incidence of laryngospasm was 8.7 per 1000 patients. On the other hand, this rises to 96 per 1000 (almost one in 10) in case of children with recent respiratory infection. That is why it is advised in medical literature to avoid giving anaesthesia to children upto 6 weeks after respiratory infection. 

3. It is extremely pertinent to note that before giving anaesthesia, the respondent anaesthetist had carried out pre-anaesthetic check-up and had asked the parents whether the child had any recent infection and they answered in the negative. However, during cross examination before the Ld. District Forum, it was revealed that the patient had URTI (Upper Respiratory Tract Infection) within one week preceding operation. Thereafter, on 06.03.2009, the patient was discharged from Sterling Hospital Ahmedabad. The diagnosis as per the discharge summary was - "Hypoxic ischaemic encephalopathy following cardio -respiratory arrest after circumcision with aspiration pneumonia". On 07.11.2009, the child was examined by Dr. Sudhir V. Shah, Neurologist. He wrote in his notes that the child "identifies parents". On 11.08.2010, a disability certificate issued to the child stated that : He was a case of severe mental retardation. This shows that patient was never in state of coma or vegetative state. In fact this is a case where the child's breathing was handicapped by aspiration of vomiting leading to sudden laryngospasm as well as blockage of the respiratory passages by the vomited material. This resulted in brain hypoxia and mental retardation."

4. The aspiration of vomit material took place soon after the surgery. This was a complication which was known to the surgeon and the anaesthetist. Failure to take adequate precautions establishes in our view, a clear case of medical negligence. That apart, the affidavit is a clear admission of the fact that the child has suffered severe mental retardation and brain hypoxic ischaemic encephalopathy.

5. For the purposes of doing complete justice,  the Hon. Apex Court thought it fit to exercise their jurisdiction under Art.142 of the Constitution in the present case considering the tragic condition of the child and of the parents, who have to look after him. They relied upon the earlier judgment of apex Court in the case of Nizam's Institute of Medical Sciences Vs. Prasanth S. Dhananka, wherein a three Judge Bench of Hon. Supreme Court emphasized that cases involving disability are in many respects even more tragic than cases of death, particularly where the disability is of a nature involving a life long condition of despair and helplessness. 

6. Their Lordship while enhancing the compensation by Rs. 7 lakhs observed that the compensation awarded by the NCDRC does not take into account the requirements of nursing care, medical help and other attendant requirements of the child for the future.

The  judgment underlining importance of following the Standard SOPs and making the patients aware about the known complications after the Surgery, as far as possible. The judgement speaks about the cross examination and it has to be of the Doctor because had the parents would have admitted in cross that they did not reveal the URTI, then the judgement would have been otherwise. 

Thanks and Regards,

Adv. Rohit Erande. ©

Pune.