Rs. 1 Crore saddled upon Hospital, Surgeon and Anaesthetist for botched Squint correction surgery causing death of 6 years old. : Adv. ROHiT ERNADE.©

• Rs. 1 Crore saddled upon Hospital, Surgeon and Anaesthetist for botched Squint correction surgery causing death of 6 years old. 
• The mother of the child  underwent hysterectomy and there is no chance to have another baby.
• The anaesthetist failed to caution the operating surgeon about the warning signs of a drug.
• The Surgeon had completed 16 surgeries in a day, prior to one that went wrong. 
• The Cardiologist ignored the cardiac anomalies

Adv. ROHiT ERNADE.©

Case Details : 

Before : NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI

 CONSUMER CASE NO. 155 OF 2001

 DR. REBA MODAK & ANR. V/s. SANKARA NETHRALAYA & ORS. CHENNAI 

BEFORE:  

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

  HON'BLE DR. S.M. KANTIKAR,MEMBER

  HON'BLE MR. BINOY KUMAR,MEMBER

Dated : 26 Aug 2022

Judgement Link :

http://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidin=0%2F0%2FOP%2F155%2F2001&dtofhearing=2022-08-26

Facts of the case in Short :

1. The case goes back to 2000. It's a tragic case, wherein the complainant and her husband lost her 6 years Son  Master Anamitra Modak.  The Opposite Parties are Sankara Nethralaya, Chennai (OP-1), Dr. T. S. Surendran (OP-2) and Dr. R. Kanan (OP-3) the Anesthetist. The Complaint was filed by the parents of deceased for alleged gross medical negligence and deficiency in service causing death of their only child during surgery for squint correction.

2.     The Complainants’ son Anmitra,  for his squint eyes was taken to Chennai at Sankara Nethralaya, wherein  Dr. (Mrs.) S. Agarkar examined the child on 12.06.2000 and proposed the name of Senior Surgeon - Dr. T. S. Surendran for the operation to be done on 14.06.2000.  The preoperative investigations, blood and urine tests were conducted. 

3. On 13.06.2000, Dr. Sujatha clinically examined the child and noticed faint functional systolic ‘murmur’   and chest wall abnormality. The same was brought to the notice of Dr. S. Bhaskaran, a Senior Cardiologist, who further examined the child with some exercises and concluded about no murmur and he also ruled out further need for any tests like ECG, ECHO or Chest X-ray etc. He declared the child “Fit for General Anesthesia”. The surgery was fixed on 14.06.2000. 

4. As advised, the Complainants took their child on empty stomach to the hospital at 9.00 a.m., but the bed to the child was allotted at around 2.00 p.m. The child was administered three injections and at about 3.00 p.m., he was taken to Operation Theatre. At about 6.00 p.m. the Complainants were given shocking news by Dr. J. Biswas that their child expired on the operation table. It was further alleged that the hospital issued patient’s case summary after two days i.e. on 16.06.2000. The discharge summary was vague without details of Cardio Pulmonary Resuscitation (CPR) and the happenings in the operation theatre. Despite repeated requests, the OPs failed to provide complete medical record. Therefore, they approached the Prime Minister’s Office and, finally after six months (11.12.2000) entire medical record including Post mortem report was handed to the Complainants.

5.     The Complainants further alleged that due to excessive gap between the last oral intake and commencement of the surgery, the child was kept on fasting for 9 hours 20 minutes, due to which he became hypoglycemic, which could lead to cardiac arrest. 

6. Halothane was used as an anesthetic agent which was known to cause bradycardia (heart rate slows down). Atropine was given as a pre-medication in all the cases to prevent bradycardia. The timing and dose of injection atropine is very important to prevent Endotracheal intubation (ETI) induced bradycardia and cardiac arrest. Atropine will have to be administered at least 45 minutes pre-operatively. In the present case, it is evident that the child was not administered the correct dose at right time. There was huge gap between atropinization and actual surgery; it was administered as per the convenient schedule or to accommodate the Surgeon. The Anesthetist failed to intubate, which was the cause of death. The Complainants alleged that on that day, Dr. T. S. Surendran had already completed 16 operations and there was no hurry to operate on the child on the very day itself, wherein high degree of care was needed. Being aggrieved by the gross medical negligence on the part of Opposite Parties, the Complainants have filed the Complaint before this Commission and prayed for Rs. 1,00,20,000/- as compensation.

7. The squint surgery was an elective surgery and it was not an emergency. The operating surgeon was not aware about the special warnings to use of Scoline in pediatric cases and the anesthetist failed to warn to the surgeon about it. It was also alleged that the child took his last breath at about 3.30 pm, but the parents were informed about 5.30 pm. 

Defense:  

1.     The Opposite Parties expressed their deep sympathies for the death of patient, but denied all the allegations. It was further submitted that the parents took the child to OPD on 12.06.2000 with the complaints of squint of eyes, developed after attack of malaria.  The patient was further referred to neuro-ophthalmic examination to rule out any associated neurological problems.

2.     Thereafter, Ms. Latha Suresh, the Head of Surgery fixing center, gave the date of 14.06.2000 for surgery. The Physician, Dr. S. Sujatha examined the patient on 13.06.2000 and requested the Cardiologist - Dr. Bhaskaran, to see the patient since she felt a questionable faint murmur. Dr. Bhaskaran reviewed the case sheet and lab investigation reports, took the history and further ascertained that the child was able to play games and climb three storied stairs without any difficulty and gave green signal for operation and it was further opined that as per medical guidelines, routine pre-operative ECG, ECHO and X-ray were not necessary for children and persons below the age of 40 years accept medically warranted. 

3.     The OP-1 hospital operation theatre (OT) is fully equipped with monitor, centralized Oxygen and all facilities for administering GA or any type of anesthesia.  The patient was taken to the OT for surgery at 3.10 p.m and anaesthetic drugs Halothane was given , gradually IV line for 5% Dextrose started. But within 10 minutes , the Anaesthetist  noticed that the ECG Monitor was showing steady drop in the heart rate to a sinus bradycardia of 50 per minute. However, the oxygen saturation was 99%. Immediately IV Injection Atropine 0.3 mg was administered. ECG showed gradual and steady rise in pulse rate to 140 -150.  Then the rhythm changed from Sinus Rhythm to Ventricular Tachycardia of around 200 which progressed to Verntricular fibrillation.

4.     Immediately, the Anesthetist cut off Nitrous oxide and Halothane and the patient was ventilated with 100% oxygen. Dr. G.V. Sailendar and Dr. Banulakshmi Indermohan joined the OP-3 for cardio pulmonary resuscitation [CPR]. The CPR was started with cardiac thump, external cardiac massage and DC Shock of 50 Joules. EGG was continuously monitored and 100% oxygen ventilation continued. Injection Adrenaline and Injection Atropine given intravenously and cardiac massage continued.  Other resuscitative measures to correct acidosis were carried out with Injection Sodium bicarbonate, administration of Hydrocortisone, Injection Ephedrine and cardiac massage was continued. In spite of all resuscitative measures, the patient could not be saved and around 5.30 p.m., the team abandoned the CPR and declared the patient dead. 

5   The Opponents relied upon the expert committees appointed by the Govt. Of India and After enquiry, the committees did not observe any adverse comment or report on the hospital facilities and on the treatment aspect. The death was occurred due to Cardio-respiratory arrest.

Held :

1. The Commission examined the Role of Cardiologist. The physician Dr. Sujata correctly referred the patient. No doubt, the child was about 8 years, school going, thus, there was less possibility of congenital anomaly. It was further observed that  we cannot ignore that the child was suffering from bilateral squint and chest deformity, which were congenital anomalies. Therefore, the cardiac anomalies cannot be ruled out in this case and therefore the Commission  refused to accept the evidence of   Dr K P Mishra, a senior Cardiologist and an author of books on Cardiology whoopined that the maneuvers as conducted for the child by the cardiologist were sufficient to rule out murmur and it was standard practice.  and that the PM report also did not show any cardiac disease. . Moreover, if one physician (MD) notices functional murmur, then the expected skill from the Super Specialist i.e. the Cardiologist was  more and higher degree of care should be there. It is lacking in the instant case and unfortunately, the child was declared fit for  GA.

2. It was observed that the child was not administered Atropine in correct dose at proper time. We don’t find importance to the pre-medication by Atropine for Antisialagogues to decrease the flow rate of saliva is not routinely used. In the recent days it is not regularly in practice by the Anesthetist.

3. It was observed that  Local anesthesia was not resorted to as the child was non coperative and the mask anesthesia was not resorted to in any head and neck surgery which also obstructs the surgical field of eyes. In the Instant case, as the vocal cord was anterior, it was not possible to intubate the patient in the first attempt. It is not clear from the record that Scoline was administered before first intubation, as such the possibility cannot be ruled out. However, it is pertinent to note that use of Scoline further precipitated the bradycardia which was already occurred due to Halothane anesthesia.

4. It was held that In our considered view it was the Oculocardiac Reflex (OCR), also known as the Aschner reflex or trigeminovagal reflex (TVR). It is a reduction in the heart rate secondary to direct pressure placed on the eyeball. It is defined by a decrease in heart rate by greater than 20% following globe pressure or traction of the extraocular muscles. 

5.   It is pertinent to note that all drugs used in anesthesia have adverse   minor   to major life threatening complications. Anesthetists are aware of such effects and use the drugs depending on the patient, nature and requirements of surgery, disease profile and the situation. The anaesthetist after ensuring that all vital parameters of the patient were normal with oxygen saturation of 99 % use Scoline 50 mg IV as a short acting drug as compared to other drugs such as Atracurium, Vecuronium, etc. As per the treating doctors the scheduled squint surgery of the child was only a short duration surgery. It is not clear from the record that whether and when Atropine was given as a premedication before induction or following episode of bradycardia. It is also not clear that whether it was administered IV or Intramuscularly (IM). In the instant case Halothane was an elective choice of OP-3, therefore anticholinergic like atropine or glycopyrolate has to be given prior. Halothane itself is known to cause bradycardia. The failed intubation cannot rule out possibility of wrong intubation (in the esophagus). After failed 1st intubation, Scoline was injected for 2nd intubation and then child suffered hypoxia- bradycardia and arrest. In our view it was the effect of Halothane and Scoline. The anesthetist (OP-3) should have altered/ cautioned the operating surgeon (OP-2) about the warning signs of Scoline. The surgeon was not aware that any special warnings   for the use of Scoline in pediatric cases.   

6. As it was not the emergency, but elective surgery same could have been    abandoned is justified, when the operating surgeon Dr. T. S. Surendran had already completed 16 operations before 3.00 p.m. Therefore, the question arose in our mind why the squint surgery was not deferred to another date. The child was also not co-operative. Halothane was used as an anesthetic agent, a known hypotensive.  During the procedure, after removal of halothane and nitrous oxide mask, there was difficulty in intubation. The 1st attempt was failed and therefore, the Opposite Party No. 3 intubated by injecting relaxant – injection Scoline, which also induces bradycardia. Thereafter, there was reduction of oxygen saturation and the child suffered cardiac arrest. The discharge / death Certificate did not mention about intubation for general anesthesia.  

7.   After relying various judgments of Supreme Court, it was held that in the instant case the Cardiologist Dr. Bhaskaran, the OP-2 (Surgeon) and OP-3 (anaesthetist) have failed to exercise their duty of care with required ordinary skills and standards, and acted carelessly thus, we hold them liable for medical negligence.  

Hospital was held vicariously liable :

8.    It is well established that a hospital is vicariously liable for the acts of negligence committed by the doctors engaged or empanelled to provide medical care [Savita Garg v. National Heart Institute (2004) 8 SCC 56  ]. It is common experience that when a patient goes to a hospital, he/she goes there on account of the reputation of the hospital, and with the hope that due and proper care will be taken by the hospital authorities. If the hospital fails to discharge their duties through their doctors, being employed on job basis or employed on contract basis, it is the hospital which has to justify the acts of commission or omission on behalf of their doctors.  Accordingly, we hold the OP-1 Sankara Netralaya to be vicariously liable for the acts of omission and commission committed by the OP-2 and 3 as being jointly and severally liable to pay compensation to the Complainants.

Compensation of Rs. 1 Crore saddled upon  as the case of 2000 finally decided in the year 2022 !!

9.    The mother of deceased  underwent hysterectomy and there is no chance to have another baby. Human life is most precious; therefore it is extremely difficult to decide on the quantum of compensation in the medical negligence cases, it is highly subjective in nature. Different methods are applied to determine compensation. The multiplier method which typically used in motor accident cases is often not conclusive for ‘just and adequate compensation’. The Hon’ble Supreme Court has held that there is no restriction that courts can award compensation only up to what is demanded by the complainant(s). The grant of compensation to remedy the wrong of medical negligence is within the realm of law of torts. It is based on the principle of restitutio in integrum.[Malay Kumar Ganguly v. Sukumar Mukherjee, (2009) 9 SCC 221] The said principle provides that a person is entitled to damages which should as nearly as possible get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong. Thus, having regard to the finding that the incidence occurred in year 2000 and we are now in 2022, the litigation has been pending   for over 2 decades. 

10.    In the case National Insurance Co. Ltd. v. Kusuma [(2011) 13 SCC 306], the Hon’ble Supreme Court has held that payment of compensation to parents for the death of a child, including a stillborn, in an accident must be just and not be a pittance. Thus, in our view, no amount can be just and adequate in an absolute sense and it is not the case of minimal negligence to award paltry compensation. . 

11   Based on the discussion above, having medical negligence conclusively attributed to the treating doctor at Sankara Nethralaya and having regard to that the Complainants lost their only son, in the ends of justice, we are of the considered view the compensation of Rs. 1 Crore  is just and fair in the instant case. Out of which Rs.85 lakhs are to be paid by the hospital, r.10 lakhs by the anaesthetist and Rs.5 lakhs by the surgeon. The Cardiologists was saved, as he was not made the party to the proceedings.

What could be more tragic for parents to lose their only child ! The case is of 2000 and we are in the year 2022. After 22 years the case was decided and this delay is the main factor in awarding the damages. Nevertheless, this case has strong messages for Doctors.

a. In elective surgeries, why to have so rush ?

b. Doctors are humans and thus after 16 surgeries, was it necessary to go for 17th one ?

c. The Anaesthetist should warn the surgeon in writing for warning signs of any drug (in this case Scoline).

In this case, it would be difficult for the Opponent to pay from their own pocket, if there is no Indemnity Insurance. 

Thanks and regards

Adv. ROHiT ERNADE.

PUNE. ©

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