A Doctor lost her life due to ill-planned and ill-managed Trauma Treatment coupled with undue alacrity of Surgeons. The Court Saddled Rs. 30 lakhs jointly upon the Treating Doctors and the Hospital. Adv. ROHiT ERANDE. ©

 A  Doctor lost her life due to ill-planned and ill-managed Trauma Treatment coupled with undue alacrity of Surgeons. The Court Saddled Rs. 30 lakhs  jointly upon the Treating Doctors and the Hospital. 

Adv. ROHiT ERANDE. ©

Case Details :

FIRST APPEAL NO. 501 OF 2008

 (Against the Order dated 30/09/2008 in Complaint No. 25/2001 of the State Commission Kerala)

ABHISHEK V.S. & ORS. V/s.  K.V.M. HOSPITAL, Kerala & ORS.

BEFORE:  

  HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT

  HON'BLE DR. S.M. KANTIKAR,MEMBER

Judgment Dated : 01 Jun 2022

Brief Facts : 

 1.     The instant Appeal is preferred by the Appellants/Complainants  (Abhishek & Ors.) under Section 19 of the Consumer Protection Act, 1986 against the impugned Order dated 30.09.2008, passed by the Kerala State Consumer Disputes Redressal Commission (hereinafter referred to as the “State Commission”), wherein the Complaint was dismissed.

2.     The Complainants, the  minor sons of the deceased - Dr. Sudha  filed the Complaint through their uncle Dr. Satish (Complainant No.3). The case goes back to 30.12.1999, in a major road accident, the patient -Dr. Sudha  suffered maxillo facial injuries, her face and neck was swollen and was brought to the opponent no.1 - K.V.M Hospital .  The C.T. scan of head revealed no significant intra-cranial injury. Patient’s X-ray of the neck and chest were done, but the fracture of the 6th cervical vertebra was not seen. However, it was informed that her condition was not serious.  

3. It was alleged that the as the concerned surgeon was not available, Opposite Party No. 7, Dr. Ravindran Narain was also called from Medical College, Alleppey who performed the wiring procedure with the help of the Opposite Parties Nos. 3 to 6 for the fractured maxilla. During the procedure, which there was a sudden spurt of bleeding, which caused airway obstruction and the patient died due to oxygen insufficiency. 

It was contended that the airway management was not done by ENT Surgeon, but it was done by inexperienced doctors. Thus, it was not standard of practice in the instant case of maxillo-facial injuries.  The Post-mortem (PM) report of the deceased clearly showed that the patient's air passage was full of blood and her finger nails were blue which was suggestive of her death due to hypoxia (oxygen insufficiency). 

4. Thus, alleging medical negligence by improper clinical evaluation and wrong treatment from the Opposite Parties, the Complainants filed a complaint before the State Commission seeking compensation of Rs. 20,00,000/- with 12% interest under different heads.

Defense of the Doctors and Hospital :

5.     The Opposite Parties Nos. 3 to 6 filed a joint reply and denied the allegations levelled against them.  The contention of the Opposite Parties Nos. 1 & 2 was that the patient had major facio-maxillary fractures with bleeding from mouth and nostrils at the time of admission.  The Opposite Parties Nos. 3 to 6 submitted that the First Aid procedure of wiring of the Maxilla was performed by the Opposite Party No. 7 with the assistance of the Opposite Parties Nos. 3, 4 and 5. The Opposite Party No. 3 was the plastic surgeon/general surgeon, the Opposite Party No. 4 was the Anesthetist and the Opposite Party No. 5 was also an Anesthetist of the Opposite Party No. 1 Hospital. They had conducted all emergency investigations including blood investigations, X-ray of the skull including upper cervical spine and C.T. scan of the head with scanogram of the upper cervical spine. 

6. The Opposite Parties Nos. 3 to 6 also submitted that the patient was fully conscious and well oriented and answered all the questions regarding previous history. On examination, the airway was patent and the patient did not experience any difficulty in breathing. Moreover, at the time when the patient was taken to the Operation Theatre, the bleeding was not active. The Opposite Party No. 5 discussed with the patient (herself being a doctor) regarding possible need of a tracheostomy, she gave only guarded consent to go ahead in case of absolute necessity. Hence, it was the consent given only for First Aid under a local anesthesia to prevent further bleeding from the maxillary fracture and then to shift her to another centre for definitive surgery. It was further submitted that the condition of the patient did not warrant tracheostomy or any intubation as she had no difficulty in breathing before or during the First Aid procedure. As the wiring was near to complete, the patient complained of breathlessness due to  severe bronchospasm. 

7. As mask ventilation was difficult, the Opposite Party No. 4 tried auro-tracheal intubation, but it was difficult to visualize the larynx through laryngoscope. The Opposite Party No. 3 was asked to proceed with an emergency tracheostomy. The procedure became practically difficult as the patient was struggling. Oro-tracheal intubation was tried again and intubated. But it was impossible to ventilate through the tube as the ‘bag’ was too tight, due to severe Bronchospasm (Reflex Shrinking of lumen of the air passages). Immediate and prompt measures were taken to facilitate ventilation, including endotracheal suction and bronchodilator drugs. As the ventilation through the oro-tracheal tube was still difficult, the Opposite Party No. 3 again proceeded with tracheostomy with the help of an ENT Surgeon, a colleague of the Patient who volunteered to come in and help. The patient developed cardiac arrest and immediately cardio pulmonary resuscitative (CPR) was started.    

8.     The State Commission dismissed the Complaint by observing that "if there was an error of judgment in not resorting to tracheostomy earlier, the same cannot be treated as negligence on part of the opposite party doctors." Being aggrieved, the Complainants filed the instant Appeal.

Held by Hon. national Commission:

1. After perusing the Medical Record, it was observed that , admittedly the patient suffered maxillo-facial injuries in the road accident. It was an emergency. The patient was taken to casualty at the Opposite Party hospital as an emergency.  She herself was a doctor and attended by the team of doctors from Orthopedics, Dental and Maxillo-Facial surgery. On examination faciomaxillary injuries noted, however, the patient had no chest injury or breathing difficulty; therefore, X-ray chest was not taken. There was no neck rigidity and her limb movements were within normal limits.

2. It was observed that as per the general protocol, there was need to reduce the fracture within 5 hours to 5 days. The faciomaxillary surgeon attached to the hospital was out of station and the relatives of the patient were not willing to shift the patient to some other hospital.   From the clinical notes, it is apparent that the patient was fully conscious and well oriented and answered all the questions regarding previous history. The condition of the patient was stable. On examination, the airway was patent and the patient did not experience any difficulty in breathing. Moreover, at the time when the patient was taken to the operation theatre, the bleeding was not active.

3. The Commission relied upon the testimony of  ENT Surgeon and the expert has stated that the best judge to decide whether the tracheostomy to be done or not, is the attending doctor and incubation would not have been possible as the procedure of wiring was to be done in the oral cavity by the maxillo facial surgeon. The subjective variables as patient being stable influenced the decision of the doctors as tracheostomy was not an easy procedure. The failure to take the X-ray of the chest cannot be considered to be a serious lapse considering that Opposite Party No. 7 and the dental surgeon had made all the attempts to trace the missing tooth and that if the tooth had entered the lungs there would have been a violent reaction.

4. The Commission also relied on the Medical Literature on ‘ABC’ Trauma Management, according to which  the first priority in the care of all trauma patients is the affirmation of a patent airway to ensure adequate oxygenation and ventilation. (ABC is the short form for A = Airway maintenance with Cervical spine protection, B = Breathing and Ventilation and C stands for Circulation with Bleeding control)

 The ABCs of trauma resuscitation begin with the airway evaluation, and effective airway management is imperative in the care of a patient with critical injury. Patients may require emergency tracheal intubation (ETI) for various reasons following injury including hypoxia, hypoventilation, or failure to maintain or protect the airway owing to altered mental status. However, the straightforward decision to intubate depends on multiple factors of the case.  

5. then the Hon. commission relied upon the Advanced Trauma Life Support (ATLS) Protocol and observed that Since 1979, the Lincoln Medical Education Foundation, together with the University of Nebraska founded local courses aiming at teaching Advanced Trauma Life Support (ATLS) to doctors, which has now become internationally recognised standard .  

After A, B and C, a rapid neurological assessment is done to rule out head injuries, spinal injuries or paralysed limbs of organs.X-RAYS are mandatory in high velocity accidents and must be done as soon as patient`s airway and blood volume is stabilised, 

6. The commission observed that,   from the literature, it is evident that the treating doctors in the instant case failed to do the basic of ABC protocol for high velocity trauma management, thus it was their failure in the duty of care. In our view, the State Commission erred to observe the duty of doctors therein and merely holding it as an ‘error of judgment’, dismissed the Complaint and observed as below: "if there was an error of judgment in not resorting to tracheostomy earlier, the same cannot be treated as negligence on part of the opposite party doctors."

7    the commission said this is not the case of 'error of judgment' but the "breach in duty of care" and thus the patient died, and for that purpose relied upon the  Judgment of House of Lords/English Courts in Whitehouse vs. Jordan,[(1981)1 All ER 267], which ruled that:

"The true position that an error of judgment may or may not be negligent it depends on the nature of the error. If it is not one that would not have been made by a reasonable competent professional man professing to have the standards and type of skill that the defendant held himself out as having, and acting with ordinary care, then it is negligence, if on the other hand, it is an error if such a man, acting with ordinary care, might have made, than it is not negligence".

8.  The commission further noted e that the treating doctors failed in their duties to act with reasonable degree of skill and knowledge. They have not exercised a reasonable degree of care to handle the emergency by adopting basics of ABC of trauma. This view dovetails from the  judgment of Hon’ble Supreme Court in the case of Dr. Laxman Balkrishan Joshi Vs Dr. Trimbak Bapu Godbole and Anr. [AIR 1969 SC 128], it was observed as below:

"The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding whether treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient.

It also relied upon the another judgment of Apex Court in the case of A.S. Mittal and Ors. vs. State of U.P. and Ors. (AIR 1989 SC 1570).  wherein it has been observed that "A mistake by a medical practitioner which no reasonably competent and a careful practitioner would have committed is a negligent one."

9. Thus, lastly it held that the doctors are liable for medical negligence, where they act carelessly, results an action in torts as held by Hon’ble Supreme Court in the case of Spring Meadows Hospital v Harjyot Ahluwalia[ (1998) 4 SCC 39], their Lordships observed as follows:

“Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned. In the former case a court can accept that ordinary human fallibility precludes the liability while in the latter the conduct of the defendant is considered to have gone beyond the bounds of what is expected of the skill of a reasonably competent doctor…’

10. It was held that merely because in the instant case, the victim - Dr. Sudha was conscious, coherent or vocal, this simply cannot deviate from the fact that even a simple radiograph of neck, chest and/or CT scan were not carried out. The absence of clinical examination of the C-spine and radiographs or X-ray of the chest or X-ray of pelvis above is nowhere to be seen in the hospital notes particularly when a co-passenger has suffered fatality should be enough to raise the suspicion of any doctor to `very high` regarding likely mortality in the survivor-victims. 

11. It transpires that upon autopsy, it was discovered that there was a fracture of the C6 vertebrae. Without assessment of such an injury and without even a reasonable period of observation, it is seen that the maxillo-facial surgeon with undue alacrity attempted to undertake inter-dental wire fixation for fracture of the mandible and effectively shut access for easy or effective oro-tracheal intubation. Further there is no record as whether intranasal tracheal intubation apparatus or even a fibre-optic device was available or kept ready for any eventuality. Unfortunately, the secretions from the mouth and throat in absence of any suction mechanism caused aspiration into the air pipe and that despite making feeble and ill-trained attempts to obtain a `surgical airway` only made matters worse by further pooling of blood in the air-pipe. All these events appear ill-planned and ill-executed and complications ill-managed, eventually leading to aspiration, asphyxia leading to death of a person, who would have survived with systematic and expert management.

12.    No doubt that as per SOP interdental wiring is used to treat fractures of the mandible. But it is clear that the procedure was undertaken without proper assessment of airway, risks to patient from Cervical spine injury and without even allowing stabilization of the patient and seems to be taken up with undue haste. Harm was certainly caused due to overenthusiastic interventions which should have been postponed to a suitable time. There is absence of effective medical notes to show if an Anaesthesiologist was available or even present at the time of the procedure. Thus it was not a case of Error of Judgment, but a negligence.

13. Compensation how calculated ?

There is a difference between compensation paid for Motor Accident and for Medical Negligence. 

The quantum of compensation is subjective in nature and it is tough to decide on the quantum of compensation in the medical negligence cases. Different methods are applied to determine compensation. In fact, loss of dependency by its very nature is awarded for prospective or future loss. The deceased was a doctor left behind two minor children. From the record, it is evident that the Complainants received compensation from MACT (Motor Accident Claims Tribunal) also.  In our view the compensation under MACT was against the negligent driving and under 3rd party insurance. It is entirely different from the compensation claimed against the medical negligence. The compensation under MV Act will not enable the doctor/hospital to commit mistake during the treatment of accident victim. 

Compensation enhanced due to passage of Time. 

The Complainants  prayed compensation of Rs. 20 lakh before the State Commission in the year 2001, . We are now in 2022, thus, in the ends of justice and considering the peculiarities of this case, lump-sum compensation of Rs. 30 lakh is just and proper. The Opposite Party No. 1 is directed to pay Rs. 25 lakh and the remaining Rs. 5 lakh shall be paid by the Opposite Party No. 7. The total amount shall be paid equally (Rs. 15 lakh each) to the Complainants Nos. 1 & 2. The entire amount shall be paid within 3 months from today, failing which, it shall carry 7% interest per annum, till its realization.

This case is an eye opener for all the medical specialists who handle Trauma Cases. Dos and Donts, one should learn. Again this case has emphasized the importance of Record keeping, as effective medical notes to prove presence of  Anesthetist were held to be lacking in this case.

With kind regards,

Adv. ROHiT ERNADE

Pune.   ©