Important Judgments for the Gynaecologists. Adv. ROHiT ERANDE. ©

Important Judgments for the Gynaecologists.

Adv. ROHiT ERANDE. ©

At the outset, let me thank the organizers of this CME and the members of NOGS and AMOGS, for giving me an opportunity to deliver a lecture on “Recent Judgments and Relevance to Medical Practice”.  I have tried my best to select important judgments from the pleathora of cases. I have also given the blogs written by me related to the cases, which may be helpful to you. 

At the outset it is to be always remembered that each case is decided on its own facts and thus Facts play pivotal role. Another important factor, which I would say is universally applicable and that is Proper Documentation.  Always remember that “POOR DOCUMENTATION IS POOR PROOF & NO DOCUMENTATION IS NO PROOF’.

Let’s see the important cases in nutshell. 

1. Informed Consent :  The Discussion would be incomplete without the landmark judgment of It Hon. Apex Court in the case of Samira Kohli vs. Prabha Manchanda (Dr.) – (2008) 2 SCC 1. The Appellant Samira Kohli, who was suffering from continuous 9 days menstrual bleeding,  was admitted only for a diagnostic procedure, namely a laparoscopy test, and as she had given consent only for a laparoscopy test, it was contended that  her mother's consent for conducting hysterectomy had been obtained by misrepresentation. The Apex Court has framed the guidelines for "informed Consent" and which are still followed everywhere..

The Apex Court has summarized the following principles of consent.

i)             A doctor has to seek and secure the consent of the patient before commencing a ’treatment’ (the term ’treatment’ includes surgery also). The consent so obtained should be real and valid, which means that : the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what is consenting to.

ii)           The 'adequate information’ to be furnished by the doctor (or a member of his team) who treats the patient, should enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment as to whether he should submit himself to the particular treatment or not. This means that the Doctor should disclose (a) nature and procedure of the treatment and its purpose, benefits and effect; (b) alternatives if any available; (c) an outline of the substantial risks; and (d) adverse consequences of refusing treatment. But there is no need to explain remote or theoretical risks involved, which may frighten or confuse a patient and result in refusal of consent for the necessary treatment. Similarly, there is no need to explain the remote or theoretical risks of refusal to take treatment which may persuade a patient to undergo a fanciful or unnecessary treatment. A balance should be achieved between the need for disclosing necessary and adequate information and at the same time avoid the possibility of the patient being deterred from agreeing to a necessary treatment or offering to undergo an unnecessary treatment.

iii)           Consent given only for a diagnostic procedure, cannot be considered as consent for therapeutic treatment. Consent given for a specific treatment procedure will not be valid for conducting some other treatment procedure. The fact that the unauthorized additional surgery is beneficial to the patient, or that it would save considerable time and expense to the patient, or would relieve the patient from pain and suffering in future, are not grounds of defence in an action in tort for negligence or assault and battery. The only exception to this rule is where the additional procedure though unauthorized, is necessary in order to save the life or preserve the health of the patient and it would be unreasonable to delay such unauthorized procedure until patient regains consciousness and takes a decision.

iv)           There can be a common consent for diagnostic and operative procedures where they are contemplated. There can also be a common consent for a particular surgical procedure and an additional or further procedure that may become necessary during the course of surgery.

v)             The nature and extent of information to be furnished by the doctor to the patient to secure the consent need not be of the stringent and high degree mentioned in Canterbury but should be of the extent which is accepted as normal and proper by a body of medical men skilled and experienced in the particular field. It will depend upon the physical and mental condition of the patient, the nature of treatment, and the risk and consequences attached to the treatment. 

The court at the end observed that the patient was 44 years old, had serious menstrual problems and the doctor thought that surgical removal of her uterus and ovaries would provide permanent relief. Holding that it was a case of the doctor acting in excess of consent but in good faith and for the benefit of the patient, the judgment denied the fee charged by Dr Manchanda and awarded Samira the rather low sum of Rs. 25,000 as compensation and her medical bills were waived off.

2. The Radiologist directed to pay Rs.1.25 Crore as he did not do the Anomaly scan which otherwise his legal and ethical duty, even though the treating Gynaecologist and  the patient did not ask for. 

Surprisingly the earlier 3 judgments on somewhat similar issues related to USG and its limitations, were decided in favour of Doctors.

Case Details : 

 CONSUMER CASE NO. 74 OF 2009

UDAYAN & ORS. V/s.  M/S. IMAGING POINT & ORS, NAGPUR. (Before Hon. NCDRC)

Blog link:

https://advrohiterande.blogspot.com/2022/07/the-radiologist-directed-to-pay-rs125.html

Short Facts :

a. The newborn had agenesis of fingers, right leg below knee and left foot below ankle joint. The Complainants alleged that it was due to the Opposite Party No. 2 who negligently performed the USG and issued wrong reports.

b. The Radiologist Doctor’s Defence : At no point of time, neither Gynaecologist nor the patient (mother) asked the Opposite Party No. 2 to conduct the target scan.

Held : The Radiologist who failed to diagnose the structural anomalies of the foetus at 17-18 weeks. The early and correct detection could have helped the parents to take a decision to continue or terminate the pregnancy within 20 weeks as per MTP Act

However, surprisingly, the National commission have not to refer to its earlier judgment, wherein it held that : Case Details : S. SARAVANAN V/s. M/S. RASI CLINIC & 3 ORS, TAMILNADU. Judgment Dated : 20 Mar 2017. Blog Link :https://advrohiterande.blogspot.com/2017/05/not-all-anomalies-can-be-detected-by_3.html

"All Anomalies can't be detected by the ultrasound Study." In this case also the allegations were similar that the Doctors did not advise for the Scan.

2. "A Doctor  though treating  patient freely in the hospital, but taking fees in the Private OPD, comes within the purview of CPA"

" For botched Hysterectomy, An Obygyan was held liable to pay enhanced compensation considering the time spent in litigation",  

"A General Surgeon with necessary experience who performed Ureteroneo- cystostomy as per the Standard Protocol was absolved even though he was not a qualified Urologist" 

 DR. SUNITA VERMA V/s.  1. SANGEETA DUBEY & 2. DR. V.K. DIXIT(M.S.) & 3. NEW INDIA ASSURANCE COMPANY LTD. REVISION PETITION NO. 3121 OF 2016

BEFORE: Hon. NCDRC

Blog Link :

https://advrohiterande.blogspot.com/2022/04/one-case-but-3-imp-points-1-free.html

Facts :

1. The Case goes back to 2006. The Complainant alleged that after the operation, the patient was passing urine from her vagina, but   the patient was discharged without attention and told that it will be cured automatically. The Opposite Party No. 1 inserted a catheter and called her after one week. The Complainant noticed that the urine was not coming from the Catheter and therefore, approached the Opposite Party No. 1 on next day 03.10.2005, who examined her and found urinary examination bladder was damaged and suggested to consult another expert doctor, thereafter, she denied further treatment.  

2. It was contended that Dr. Sunita Verma was MD Gynec, and working in the Government Hospital and the services to all the patients were free. The operation was performed in CIMS and the Opposite Party No. 1 never charged any fees from the Complainant.

3. It was suspected case of Vesico Vaginal Fistula (VVF) which was a known complication in hysterectomy surgeries, therefore, she further referred the patient to Dr. D.R. Patle at CIMS, Bilaspur.  Therefore, the Complainant was treated by O.P.No.1 as per standard of practice. It was further contended that as per literature, it was a known complication and the incidence of Ureteric injuries is 1 – 4% patients after Hysterectomy.

4. Dr. V. K. Dixit it was vehemently argued that the he was a renowned Surgeon (MS) possesses necessary skills to deal with such repair surgeries with the help of IVP. As it was diagnosed as Uretro Vaginal Fistula (UVF) and performed corrective surgery (Ureteroneocystostomy). 

Held :

1. No Free Service as the patient was first treated in the Pvt OPD of the Doctor and after paying Rs.6000/- she was admitted in hospital and therefore even if the Dr. did not charge her, still the case falls under CPA. Incident occurred in 2007 ; we are now in 2021, thus in the ends of justice the Opposite Party No. 1 - Dr. (Mrs.) Sunita Verma, the Gynaecologist  is directed to pay lump-sum compensation of Rs. 3,00,000/- to the Complainant within 6 weeks from today

2. The Suregon was qualified to perform corrective surgery In the instant case, he correctly diagnosed UVF and treated the urinary leak which was completely stopped.  And thus the Surgeon was absolved , but Obygyn was held responsible./ 

3. The Doctor saved from paying Rs. 2 Crore compensation. Thanks to 'timely' advise of  USG /Anomaly Scans  during pregnancy. 

Baby Vani Bhattacharya, through her Father V/s.  Dr. Suranjit Dutta, MS, New Delhi, CONSUMER CASE NO. 974 OF 2015

Blog Link :

https://advrohiterande.blogspot.com/2021/12/the-doctor-saved-from-paying-rs-2-crore.html

Facts : The case is of pre MTP Amendment 2021

1. The present compliant has been filed by a minor baby through her Father against the Doctors alleging them responsible for the delivery of Hydrocephalus baby

2. It was alleged that the mother did inform the gyneac about her 2 daughters suffering from Autism. But Drs did not pay attention and it was held that the Dr. could have diagnosed the anomalies and delivery of Hydrocephalus baby could have been avoided.

3. Defence : It was submitted that the Opposite Party No. 1 was a qualified Obstetrician and had experience of 27 years, conducted 8000 to 9000 deliveries including LSCS and other surgeries.  It was submitted that though Dr. Dutta  advised Triple test and USG at 16 weeks of pregnancy,  it was denied by the mother. (documentation) 

4. Held :  It was also held that  the patient did not follow the instructions of Dr. Dutta to visit every 15 days, undergo USG and Colour Doppler study.   The head circumference (OFC) was measured by the Pediatrician Dr. Dinesh Kumar Goyal, it was 33.5 cm, normal.

5. the Opposite Party No.1 advised proper diagnostic tests during pregnancy to rule out anomaly. It was a reasonable degree of skill and knowledge. Therefore, he cannot be held guilty of negligence by any stretch of imagination.

4. Failure to rule out ectopic pregnancy was considered as breach of duty to care.

Dr. Kusum Sabharwal V/s. Sangeeta Agarwal.

R.P. No.2058/2013, decided on 2018-01-11

Blog :

https://advrohiterande.blogspot.com/2018/04/failure-to-rule-out-ectopic-pregnancy.html

Short Facts :

The MTP was performed after following all the formalities. After 15 days, the patient had abdominal pains, but USG was normal and she was treated symptomatically.

After few days the patient fell in the house and in critical condition she was taken to St. Stephen Hospital. During investigation, she was diagnosed as a case of "Ruptured Ectopic Pregnancy Right Side". UPT was positive. After emergency operation blood clots 200ml were removed. And Rs.20 lakhs compliant was filed.

Held .

1. The Commission relied upon the expert opinion – which held that both the Doctors even after revealing bulky uterus with tenderness in right adexa., diagnosis of ectopic pregnancy was not entertained and she was treated with antibiotics only.

2. The Doctors failed to send the D&C material to confirm whether it was the product of (pregnancy) conception, which is mandatory as per Medical Literature. Thus both the Obygyn and Sonologists were held negligent.

5. A Dead Fetus Delivered, but the Mother was saved.... No Negligence..

A case showing difficulties faced by Doctors vis-a-vis patients in Rural areas...

Case Details :

Ch Ravi Kumar & anr. Nadigam,  A.P. V/s. Dr. M. Syam Sundar   Rev.Petn. No.540/2017.

Blog Link :

https://advrohiterande.blogspot.com/2017/10/a-dead-fetus-delivered-but-mother-was.html

Facts :

1. On 23/11/2006 @ about 7 a.m. the patient had Labour pains. On next day due to unbearable pain, she got admitted in the Hospital, however after LSCS a dead fetus was delivered. 

2. It was told to the patient that the fetus died 2 days back. It was alleged by the Complainant that she was always assured by the Doctor that everything was normal, despite that she delivered still born baby. She was never advised to undergo Ultrasound or was never referred to any other expert. 

3. The patient was discharged on 7th day after removal of sutures, without  paying the balance bill. It was pointed out that the Village Nadigam, is virtually a rural area and the Doctors practising there had limited sources.

Held :

1. The Doctors rightly diagnosed the patient as "threatened rupture of uterus" and the fetal movements were not clearly heard. Therefore the treating Doctor had a prime concern to save the mother in the instant case. 

6. The "Supreme Judgment" with manifold reliefs to Doctors and Hospital : Perhaps the year end gift for Doctors. 

 a. Non availability of Operation Theatre is not a valid ground to hold Hospital Negligent :

b. Non functioning of Machines and Equipments cannot be said to be Negligence.

c. It is an incorrect assumption to say that, "since surgery was performed by a doctor, he alone would be responsible for different aspects of the treatment required and given to the patient".

d. It is too much to expect from a doctor to remain on the bed side of the patient throughout his stay in the hospital.

e. Every death of a patient cannot on the face of it be considered to be medical negligence.

f. In spite of the treatment, if the patient had not survived, the doctors cannot be blamed as even the doctors with the best of their abilities cannot prevent the inevitable

g. The doctor cannot be held liable for medical negligence by applying the doctrine of res ipsa loquitur for the reason that a patient has not favourably responded to a treatment given by a doctor or a surgery has failed.

Case Details : Before Hon. Supreme Court of India. 

Bombay Hospital & Medical Research Centre (Appellants) Vs. Asha Jaiswal & Ors. (Complainants -Respondents)

Blog Link :

https://advrohiterande.blogspot.com/2021/12/a-supreme-judgment-with-manifold.html

Facts :

The Patient, with Aorta Aneurism was admitted. There was delay in performing angioplasty due to non availability of OT. The Doctor Did not attend the patient in time and the patient died. 

7. "Gynecologist held liable to pay Rs.20 lakhs for failure to arrange (rare ) blood bags and donors, delay in hysterectomy and timely reference to higher centre"

Because cross-matched blood is not always available, maternity units should have immediate access (within 5 min) to O-negative blood. Consequently, in our view all maternity units should have their own reserve of blood products if there is no blood bank on-site."

Blog Link :

https://advrohiterande.blogspot.com/2021/12/gynaecologist-held-liable-to-pay-rs20.html

Tate Hospital V/s. Sushrut Brahmabhat & ors. 

Brief Facts :

The Judgment starts with following quote :

“There is something about losing a mother that is permanent and inexpressible – a wound that will never quite heal.” – Susan Wiggs

We understand how challenging and painful a Mother’s day without mom.

Facts :

1.At home, on 20.09.1995 at about 5.30 am, the patient started bleeding and immediately she was admitted to the Tate Hospital at 6.30 am. At 6.45 am she was examined by Dr. Tate and decided to perform Lower segment Caesarean Section (LSCS). 

2. It was alleged that at 8.45 am, the Dr. asked the patient’s husband to get a bottle of Haemaccel which was immediately purchased from local Pharmacist along with other medicines.  At 9.30 am, the patient delivered a female baby. It turned out to be the case of PPH. At about 10.30 am, 4 bottles of blood were arranged. 

3. The Relatives were requesting the Doctors to transfer the patient to higher centre, but Dr refused and ultimately at about 3 pm the patient was shifted to Bhagwati Hospital and the Gyneac and Anaesthetist both were with patient. .

Held :

The treating doctor should keep sufficient “A negative” blood ready or make necessary arrangement to handle such complication. The expert has further opined that the “emergency hysterectomy” or “vessel ligation” was necessary. All maternity units should have their own reserve of blood products if there is no blood bank on-site. 

8. Much awaited relief for Drs in these days, where Caesarean is often called as "Unwarranted”.

A case  claiming  compensation Rs. 20 lakhs+ against Doctors got rejected. 

The National Commission in its judgment dated 17th July, 2017, rejected the Complaint of Rs.20,27,350/- in the case of  KUNDAN LAL JAYASWAL & ANR V/s.  DR. MALA PANDYA (THAKKAR) & ANR, Mumbai.

Blog Link :

https://advrohiterande.blogspot.com/2017/08/much-awaited-relief-for-drs-in-cases-of.html

Facts :

1. As per USG report  dated 16.3.2015, there was a double loop of cord encircling about 2/3rd circumference around the neck of fetus. Her expected date of delivery was 23.04.2015. However  on 25.3.3015, as the water discharge from uterus increased,  the patient approached the Doctors and after other investigations, the Doctors decided to go for LSCS in the interest of patient. 

2. On the same day at 9.45 PM, a male baby was delivered by LSCS.

3. It was alleged that the Doctors intentionally performed LSCS and the bill was inflated. 

Held 

The National Commission dismissed the appeal after perusing the record and hearing the parties and held that as the double loop of cord was present around the neck of fetus, the emergency LSCS was performed.

On the contrary, the Husband and the Relatives wanted to wait for the Normal Delivery !

9.  "Giving birth in the 'NATURAL' way or giving birth by 'CAESAREAN SECTION'  (unless she lacks the legal capacity to decide)" is the choice of a Pregnant woman !!!

"Gone are the days when it was thought that, on becoming pregnant, a woman lost, not only her capacity, but also her right to act as a genuinely autonomous human being"

"Its wrong to say that vaginal delivery is in some way morally preferable to a caesarean section: so much so that it justifies depriving the pregnant woman of the information needed for her to make a free choice in the matter."

UK Supreme Court, dated 11th March, 2015, in the case of Montgomery (Appellant) v Lanarkshire Health Board (Respondent).

Blog Link :

https://advrohiterande.blogspot.com/2017/04/uk-supreme-court-giving-birth-in.html

Facts :

The insulin dependent diabetic mother delivered a baby boy, but due to complications the baby was born with cerebral palsy of a dyskinetic type & Erb's palsy. It was alleged that she ought to have been given advice about the risk of shoulder dystocia (the inability of the baby’s shoulders to pass through the mother's pelvis) which would be involved in vaginal birth, and of the alternative possibility of delivery by elective caesarean section.

All the Lower Courts decided against the mother. But Supreme Court turned down all the judgments holding above.

10. Merely a patient dies does not lead to the presumption that the Doctors were negligent :

"The mere fact that a patient dies in a hospital does not lead to the presumption that the death occurred due to the negligence of the doctor and in order to make a doctor criminally responsible for death of his patient."

Mohd. Kasur Parvez V/s. St. Stephen's Hospital, Delhi.

Compliant No.87/2008, decided on 19/03/2018, By Hon. Delhi State Commission. 

Blog Link :

https://advrohiterande.blogspot.com/2018/06/a-complaint-claiming-rs40-lakhs.html

11. In the recent case of J.N. Shori multi-specialty Hospital, Panchkula, Haryana & anr. v. Krishan Lal. REVISION PETITION NO. 2988 OF 2012, decided on 23/07/2021, 

it was held that : 

The facts are similar as in this case also the unfortunately the patient died and the allegations were that of overdose of anaesthesia or excessive bleeding during C-Section surgery. 

It was held that :

“No sensible Doctor would intentionally commit an act or omission to the detriment of the patient. The Doctor has right to select the procedure”

“a) A mere deviation from normal professional practice is not a negligence, or b)   mere accident is not evidence of negligence or c)   an error of judgment on the part of a professional is not negligence per se.

Blog Link :

https://advrohiterande.blogspot.com/2022/01/no-sensible-doctor-would-intentionally.html

12. "A Woman becoming pregnant after 4 years (!!) of Sterilisation operation, cannot be attributed as Medical Negligence, as no such operation guarantees 100% result, " and it saved Doctors from paying Rs.7.5 Lakhs

MEDICAL SUPERINTENDENT ESI HOSPITAL, NEW DELHI V/s. RAM AVADH PAL, REVISION PETITION NO. 613 OF 2007, decided on 24/01/2017).

Blog Link :

https://advrohiterande.blogspot.com/2017/04/no-sterilization-operation-guarantees.html

Held :

The NCDRC relied on “State of Punjab vs. Shiv Ram & Ors.” [AIR 2005 SC 3280], in which, the medical literature on the issue had been discussed in great detail, and it was brought out that none of the procedures carried out for sterilisation could guarantee 100% exclusion of pregnancy and the COMPENSATION CAN BE AWARDED ONLY IF FAILURE TO OPERATION IS ATTRIBUTABLE TO NEGLIGENCE DOCTORS.  The BURDEN OF PROOF LIES ON THE CLAIMANT.

In the present case, although both Fallopian tubes had been cut, but with the passage of time, there was a possibility that the tubes would have got reconnected in natural course and therefore after 4 years from the Operation, Doctors cannot be held negligent, as it has not been proved at all, if any.”

13. "The consent to operate Uterus does not include Consent to remove it ".

A Doctor Couple was held negligent for removing uterus of a 25 years patient, without her consent ...

DR. RAVINDER VERMA & ANR. V/s. SALMA BEGAM, U.P.

REVISION PETITION NO. 968 OF 2015, decided on 14 Feb 2017

Blog Link :

https://advrohiterande.blogspot.com/2017/04/whether-consent-to-operate-uterus.html

Facts in short :

1. The 25 years old lady, from U.P. , got admitted herself with the Hospital run by the Petitioners. It was alleged by her that, during the surgery of Hysterectomy with removal of ectopic pregnancy, her uterus was also removed, without her consent.

2. It was alleged that, "consent to operate Uterus" was given and she was never informed that during the procedure for hysterectomy, her uterus would also be removed.

14. Last but not the least, this judgment is an immortal judgment, in my opinion. Lets see why. 

“A Doctor, like any other professional can take leave if felt necessary by him on account of his personal reasons or otherwise and it is the DUTY of the HOSPITAL to take alternate arrangements.” –

” Like other normal human being he (DOCTOR) also needs to take rest and his meals and then get ready for the duty to be performed on the next day” – Hon. National Commission

The National Commission again came to the rescue of Doctors and denied the charges of Medical Negligence of WORTH RS. 2 CRORES, on the count that the Doctor without giving proper instructions to the other Doctor went on leave.

Shri. Manishbhai Joshi V/s. Sheth P.T. Surat Gen. Hospital & ors.

Blog Link :

https://advrohiterande.blogspot.com/2017/04/yes-doctor-can-take-leave-anytime-if.html

Short Factual Matrix:

The Deceased patient 86,, father of the Complainant the patient of past Bilateral Centrilobulor Emphysematous in the form of Hyper inflated lung with flattening of lobes was admitted in the Hospital, succumbed to long existing chronic end stage respiratory disease, But the main grievance of the Complainant was that the treating Doctor went outstation without giving proper Instruction to his fellow Doctor, when the patient was still admitted in the Hospital.

(In emphysema, the inner walls of the lungs' air sacs (alveoli) are damaged, causing them to eventually rupture. This creates one larger air space instead of many small ones and reduces the surface area available for gas exchange. Emphysema is a lung condition that causes shortness of breath.)

These judgments are to be taken as guidelines. The applicability of these judgments will always depend upon facts of each case. Medicos’ job is to follow the SOPs and skill.

Thanks and regards

Adv. ROHiT ERANDE

Pune. ©