An Important Case for Hospital, Surgeons and Anesthetists : Adv. ROHiT ERANDE. ©

A case which underlines the importance of proper training to Nurses.

"The remark 'Awake' put by an Anesthetist should be read in medical parlance over the remark "drowsy" put by the Nurse"

"The hypoxic event could be managed by the Anesthetist and we don’t think  any neurologist to be present at that time"

Adv. ROHiT ERANDE. © 

Before Hon'ble NCDRC, Delhi

 CONSUMER CASE NO. 361 OF 2001

 

SMT. MAMTA AGARWAL & ORS.

AMRAWATI, MAHARASHTRA

...........Complainant(s)

Versus  

BOMBAY HOSPITAL MEDICAL RESEARCH CENTRE & ORS.

...........Opp.Party(s)

The judgment Link :

http://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidin=0%2F0%2FOP%2F361%2F2001&dtofhearing=2022-12-22

BEFORE:  

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

  HON'BLE MR. BINOY KUMAR,MEMBER

Brief Facts:

1.     The facts go back to 1998.   On 28.10.1998, Mr. Vijay Kumar (hereinafter referred to as the ‘patient -deceased’), fell down from the ladder in Amravati and sustained minor injuries to his left forearm. After initial treatment, he was referred to Dr. M.R. Thatte (OP-2) at Mumbai to undergo microvascular repairs and plastic surgery for removal of skin defect. The OP-2, after examination, advised flap surgery for removal the skin defects and microscopic repair to ulnar nerves.

2.       Accordingly, on 01.11.1998, the patient was admitted to Bombay Hospital Medical Research Centre (OP-1- ‘Bombay Hospital’) and on the next day the OP-2 performed ‘Posterior Interosseous Skin Flap Surgery’. Again on 04.11.1998 patient was taken to the operation theatre for revision and checking of the flap surgery. For this purpose, patient was administered general anesthesia. 

3. That Post-Surgery, the OP-2, informed the patient’s wife (Complainant No. 1) that everything was fine. It was alleged that the patient was awake after the surgery and suddenly  gone into respiratory arrest. As a result, the patient was shifted to the Intensive Care Unit (ICU) for ventilator support. It was further alleged  that  the Nurses Report shows that the patient was “DROWSY” and he was still under the influence of General Anaesthesia. However, the OP No. 3 -Anesthetist  mentioned in the notes that patient was Awake. It was  contradictory to the report submitted by the receiving nurse of the recovery room. It was alleged that the OPs have totally failed to take proper care after the completion of the operation. The patient was totally neglected by the hospital staff. The patient’s brain  had already suffered ‘HYPOXIC’ damage (due to lack of oxygen supply) due to  substantial gap.  Subsequently, the patient went into coma and died on 06.08.2000 at Amrawati. It was stated that the patient was not suffering from any kind of neurologic ailment prior to 6.11.98. However, permanent damage was  caused after the surgery. The Complinanat therefore filed a case for total compensation of Rs. 40,50,000/- under different heads

Defence:

4.       The OP-1 - Bombay Hospital Medical Research Centre submitted that the Complaint is not maintainable as the Bombay Hospital is maintained by a charitable trust. and as per the agreement signed between the Hospital and 'the  Consultants , the Hospital is responsible only for providing the basic paramedical and administrative facilities.  

5.       The OP-2 - Dr. M.R. Thatte, in his written version, raised the preliminary objection on maintainability of Complaint as barred by limitation.  

6.       On merit, the OP-2 submitted that, the patient was operated  for re-adjustment of local skin flap to cover the patient's skin defect. It was done under GA. After the operation the patient had recovered from the Anaesthesia as understood in medical terminology and then in his presence the patient was transferred to the recovery room. He  also spoke  the patient and ascertained his consciousness.  As far as the remark "AWAKE" made by the Anaesthesiologist in his report, this remark was with regard to the patient’s medical parameters and it should not be interpreted as in the dictionary sense. The Complainants are trying twist the remark "DROWSY" written in the Nurses report. Since the report has not been annexed to the Complaint and hence he was  unable to verify about its   truthfulness. In any event, the perception of  the Anaesthetist as ‘level of consciousness’  in the recovery room should prevail over that of a nurse.  Though, the patient went into a coma it was not due to any negligence or carelessness  of any doctor. The Anaesthetist continued with the patient and the Anaesthetist had certified the patient’s good condition before he went to his room.

7.       The OP-3 - Dr. Madhav Sathe, the Anaesthetist, submitted that the surgery went uneventful. From his operative notes, the patient was awake while shifting to recovery room and the complications were developed on or after 5.10 p.m. on the same day. As a  routine practice he remain in the operation theatre at least 45 minutes to one hour to offer emergency treatment, if any, required post-operatively  Therefore,  it was false allegation that there was delay of 20 minutes to attend the patient. He further submitted that his professional colleagues Dr. Pradhan (Orthopaedic Surgeon) and Dr. Datar (Anaesthetist) were also much present with him. The affidavits of Dr. Datar and Dr. Pradhan were filed. 

Arguments From the Complainant:

8.       It was argued for the Complainant that the  Hospital acted in a negligent manner which failed  to keep necessary lifesaving equipment and trained personnel to handle care of such situations. The OP-2 - the surgeon has surprisingly described the whole incident as an ‘Act of God', without explaining as to how the deceased could have slipped into coma suddenly, ultimately resulting in death. The contradiction in the noting of the nurse and the OP-3 was  glaring lapse without sufficient explanation.  It's a  clear case of res ipsa loquitur. 

9. In fact, the OPs- 2 and 3 have admitted in their pleadings that they are unable to explain what happened and to cover up their negligence and failure of care, they are harping on terms like "inexplicable”  "Act of God" etc. The learned Counsel for the Complainants relied on various judgments of Hon. Supreme Court;

Arguments from the Opposite Parties:

9.       The learned Counsel for the Opposite Party No. 1 argued that the Patient  initially was operated by Dr. Rathi at his clinic at Amrawati. The doctors did follow the proper procedure and at the request of the family members he was discharged from the hospital. After several months, the patient passed away on 06.08.2000.  

Arguments from OP No. 2: 

10.     The learned counsel for OP No. 2 reiterated the evidence and stressed upon the instant complaint was the time barred. He further argued that   it is settled law that in cases of medical negligence specific act of negligence must be alleged and then proved as also to show how that amounts to negligence. The OP-2 in his support he filed an affidavit of an expert Dr. Sanjay Wagle. The opinion given by Dr. Wagle has gone unchallenged despite opportunity to cross examination was given to the complainant. 

Arguments from OP-3:

11.    The learned counsel for opposite party no. 3 reiterated the evidence and further submitted that in support of OP-3 he has filed independent expert’s evidence of Dr V M Divekar. He also relied upon the affidavit of Dr Satish R Gupte dated 05.03.2002 and Affidavit of Dr. Wagle dated 30.3.2002 placed on record. The Complainants have not filed any independent experts’ evidence and /or medical literature to substantiate its contention on allegations made in the complaint.  The report submitted by Maulana Azad Hospital clearly supports the case of the opposite party.

Held :

1.    The hon'ble commission held that the compliant is in limitation.  But on merits, dismissed the compliant. 

2.  After perusing the record, it was observed that   in the recovery room there were signs of spontaneous muscular activity, and the patient was attempting to breathe and patient responded to verbal commands. However, suddenly at around 5:10 pm the patient had breathing difficulty and his BP started to drop. The OP No.3 along with Dr. Pradhan and Dr. Datar rushed to the recovery room. Patient was intubated and patient was given Adrenaline 1 ml in 100000 inj Mephetin 30 mg inj. Decadron inj. Efcolin 100 mg and Inj Mannitol intravenously. At that stage patients heart rate became 140/ minute, BP  150/90 and O2 saturation was 100% but patient was not responding. The patient started spontaneous breathing at  5.45pm, reacting  Pupils to light and then at 6 pm he started responding to painful stimulus. At 7:15pm patient developed some jerky movements for which injection eptoin was given. At 8 pm, he was shifted to ICCU for further management.

3. The Commission rejected the allegations of the Complainant that      there was   delay in conducting EEG and CT/MRI. The attending doctor’s prime duty was to stabilize the patient. The CT/MRI was necessary for the hypoxic patient unless stroke, bleeding or trauma is suspected, but it not in the in the instant case.  As there was no evidence of any focal neurological deficit, in our view the CT scan would not be helpful to change the mode of patient’s management. Moreover, under such condition, it was risky to carry patient for CT scan department.  

4. The commission relied upon the expert opinion of  Dr. Mrs. Vasumathi M Divekar in support of OPs and held that in the present case, the case has been conducted properly and there has been no negligence on part of the anesthetist at any stage.  

5. Even though the Complainant did not file any expert opinion,      as a caution and in the interest of justice this Commission vide order 12.12.2019  sought an opinion from the  committee of experts  of Maulana Azad Medical College, New Delhi. The  expert opinion dated 12.12.2020 to the effect that “as per the available records, the Patient was managed as per the standard protocol” Thus, in our considered view the OP-2 and 3 the post-operative care was as per the standard procedures. The hypoxic event could be managed by the Anesthetist and we don’t think  any neurologist to be present at that time.   Thus even the independent body of doctors found that there was no negligence on the part of the hospital or the doctors.

6. On the Awake and Drowsy remarks controversy,    it was held that  the doctor especially Anesthetists would not fail to distinguish between “Awake” and “Drowsy”.  It was used in medical parlance and should not viewed as in the dictionary sense. 

7. It was held that the We do not find any deficiencies from the Hospital about the infrastructure and in the patient care. There was no negligence in performing the operation and Post Operation too.  

8.  As long as doctor follows practice acceptable to the medical profession of that day he cannot be liable for negligence as held by the Hon’ble Supreme Court in the Jacob Mathew Vs State of Punjab[AIR 2005 SC 3180]  

9.     The Hon’ble Supreme Court in the case S. K. Jhunjhunwala vs. Dhanwanti Kaur and Another[(2019) 2 SCC 282] held that in every case where the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed that the medical professional was negligent.   Recently in the case of Dr. (Mrs.) Chanda Rani Akhouri & Ors. Vs Dr. MA Methusethupathi & Ors.[2022 LiveLaw (SC) 391]. 

It was observed  that:

it clearly emerges from the exposition of law that a medical practitioner is not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another.

This is the very important case for Hospital, surgeons and the Anesthetists. Indeed, the loss of the complainant is irreversible, but question is whether the Doctors can be held responsible considering the facts of the case. Proper record keeping saved the Doctors from paying hefty compensation. Regarding the remarks controversy, I think the Staff must be trained properly, so that such controversies will not arise at all. 

Thanks 🙏

Adv. ROHiT ERANDE ©