Rs. 10 lakhs saddled upon the Doctors and held that faulty Spinal fixation implant screw is a mistake which tantamount to negligence & cannot be pardoned. ADV. ROHiT ERANDE. ©

“Rs. 10 lakhs saddled upon the Doctors and held that faulty Spinal fixation implant screw is a mistake which would tantamount to negligence & cannot be pardoned”

ADV. ROHiT ERANDE. ©

Case Details :

FIRST APPEAL NO. 272 OF 2019

(Against the Order dated 23/10/2018 in Complaint No. 147/2009 of the State Commission Delhi)

SIR GANGA RAM HOSPITAL & 2 ORS V/s.  DR SITA OMAR

Judgment Link :

http://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidin=0%2F0%2FFA%2F272%2F2019&dtofhearing=2022-07-07

BEFORE:  

  HON'BLE DR. S.M. KANTIKAR,PRESIDING MEMBER

  HON'BLE MR. BINOY KUMAR,MEMBER

ORDER Dated : 07 Jul 2022

 Brief facts:

1. The Complainant, Dr. Sita Omar’s husband suffered road accident on 11.03.2007 at 11:40 p.m, who suffered multiple fractures of ribs, right femur, left fibula and pubic rami and ankle.. He was immediately taken to Safdarjung Hospital and then admitted to Sir Gangaram Hospital (SHRG) under care of Dr. A.K. Kocher, an Orthopedic Surgeon (hereinafter referred to as the ‘OP-2’).

2. On examination, it was found that both the lungs were punctured and patient developed hemothorax. Due to severe blood loss, the patient developed hypotension and shifted to ICU. After a week, Dr. S. K. Chaddha (hereinafter referred to as the ‘OP-4’) performed thoracotomy and simultaneously operated for fixation for femur and ankle repair.

3. After two months, on 28.05.2007, spinal vertebral fixation with implant was done. However, the patient did not improve and his pain persisted. The patient developed breathlessness and he was again admitted on 10.07.2007 under care of Dr. S.K. Chaddha. Bronchoscopy was performed but no relief. The patient was discharged on 27.07.2007. Thereafter, for pain management, the patient was taken to AIIMS on 01.11.2007 under care of Dr. R. Malhotra, Orthopedician and Dr. Rita Sood, the Chest Physician.

4. The CT scan was performed, which revealed pleural rupture due to the spinal fixation screws entered lower lobe of right lung. It led to recurring infection. Therefore, right lung lobectomy was performed and proximal screws were removed. The patient was shifted to ICU and remained for four months in AIIMS under treatment of pneumonia. The MRI was scheduled to assess the damage of spine but it was not possible because of one Harrington’s rod implant. Finally, the patient was discharged on 28.06.2008.The patient was kept on visiting the hospital regularly but day by day his condition deteriorated. It was alleged that the OP charged Rs. 1.28 lakh for inferior qualities of implant screw and further developed paraplegia, psychological depression which subsequently developed disability. Being aggrieved, Consumer complaint was filed before the State Commission, New Delhi.

5. The Opposite Parties, in their written version, denied the allegations. It was further submitted that the patient concealed his scoliosis because of childhood polio, which also affected the lungs and weakness in right limb. Thus, the patient was getting repeated attacks of right lung infection and atelectasis.  It was nothing to do with implant screw or rod.  

 On hearing the parties, the State Commission partly allowed the complaint and awarded Rs.10 lakh as compensation on the hospital as a vicarious liability. 

Both the Parties filed the Cross Appeals. 

6. Being aggrieved, Sir Ganga Ram Hospital with Dr. S. Shankaracharya & Dr. S. K. Chadha has filed FA/272/2019 and the Complainant filed FA/421/2020 for enhancement of compensation.

HELD : 

1. The National Commission  perused the expert opinion from Dr. R.M.L. Hospital, which opined that no infirmity in the course of action adopted. It was observed in short that a) Implant choice at the time of surgery was by Orthopedic Surgeon with the consultation of the patient. b) MRI as such was not possible as he had Harrington rod in spine in his childhood. C) Paraplegia is not because of faulty fixing.

2. It was observed that on careful perusal of medical record of AIIMS, it is evident that the Spinal fixation implant screw was entered in right lower lobe lung and it ruptured the pleura (A thin layer of tissue that covers the lungs and lines the interior wall of the chest cavity. It protects and cushions the lungs), which was the cause of lung infection i.e. consolidation and some infiltration in right lower lobe. 

3. On 29.11.2007, the doctors at AIIMS performed right lower lung and removal of proximal screw removal and the patient was kept in ICU for four months under supervision. The patient suffered paraplegia on 27.11.2007 and went into severe depression for which, he was given psychiatric treatment. He was declared 100% disable and a certificate to that effect was issued by AIIMS. The MRI was tried to get done on 28.12.2007, but could not be done due to incompatible implant. He remained under treatment at AIIMS and was discharged on 28.06.2008. Time and again, the patient was taken to AIIMS for his disability. During the course of treatment, the patient, eventually, breathed last on 27.12.2012. 

4. The death certificate revealed that the death was due to Sepsis with Septic Shock, Lower Respiratory Tract Infection, and Traumatic Paraplegia with acute pneumonia and Congenital scoliosis post-op status. This is the fit case for applying the principles of res ipsa loquitor as no proper care was exercised during and after surgery and thus negligence on the part of OPs is writ large. All the doctors/OPs have been negligent in treating the patient and have failed to diagnose the post-operative complication despite patient’s several follow-up visits.  

5. In the month of November, i.e. 8 months later, he developed breathless and went to AIIMS. At the time of admission, he was neurologically intact and had chest infection with basal lobe atelectasis. Fresh CT Scan was done and it was found that he had developed TB spine at D6-7. The patient developed paralysis in his lower limbs due to TB spine. The sensory level was D9-10, which corresponded to the lesion at D6-7 due to TB. It was developed after the discharge from SGRH after long period after October, 2007. He neither visited Dr. S.K. Chhadha nor Dr. A. Kochar. Therefore, the patient’s present disability has no relation with the treatment given at SGRH. Even the Medical Board in the Medical Report has opined that Paraplegia cannot be caused because of faulty screw fixing, but admittedly it injured the pleura (lung).

6. Therefore, the Commission hold the treating doctors negligent for failure of duty of care. This view is fortified from the decision of Hon’ble Supreme Court in the case of Achutrao Haribhau Khodwa v. State of Maharashtra (1996) 2 SCC 634 , their Lordships observed that in cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in tort would be maintainable. Their Lordships further observed that if the doctor has taken proper precautions and despite that if the patient does not survive then the court should be very slow in attributing negligence on the part of the doctor. It was held as ‘A medical practitioner has various duties towards his patient and he must act with a reasonable degree of skill and knowledge and must exercise a reasonable degree of care’.

7. Regarding compensation, in such cases, where 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…’

8. In the instant case, it was not a bonafide mistake of the OPs and the commission  affirmed the view of the State Commission, which awarded just and proper compensation. The Complainant does not deserve enhanced compensation.

This case has rejected both the appeals. One filed by Doctors for dismissal of findings against them, whereas the appeal of Complainant wanted to enhance Rs.10 lakhs compensation, was also rejected. The Court has once again set aside the Expert Commission’s report favouring doctors. This judgment also emphasizes that not only during the treatment, but post-op treatment and care is equally important.  

Thanks and Regards

ADV. ROHiT ERANDE. ©

Pune.