Sympathy for the patient's sufferings cannot be the basis to decide negligence of the Doctors. - ADV. ROHiT ERANDE ©

 Sympathy for the patient's sufferings   cannot be the basis to decide negligence of the Doctors.

ADV. ROHiT ERANDE ©

Case Details : 

REVISION PETITION NO. 2734 OF 2014

 (Against the Order dated 25/11/2013 in Appeal No. 853/2012 of the State Commission Kerala) 

SREEMATHY     V/s. STATE OF KERALA & 2 ORS.

BEFORE:  

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

judgment link :

http://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidin=0%2F0%2FRP%2F2734%2F2014&dtofhearing=2023-01-31

Dated : 31 Jan 2023

Facts in nutshell 

1. The facts of the case take us to 2002 !!. The Complainant  suffered blister like swelling and pain in her left leg which was initially treated at  General Hospital, Thiruvananthapuram (OP-2) and thereafter in Medical College Hospital, Thiruvananthapuram (OP-3), but there was no improvement.  

2. It was alleged that due to wrong medicines and wrong diagnosis  her normal left forearm became stiff and as a result she lost her fingers. Being aggrieved by the permanent disability caused because of negligence and failure to give effective treatment by OP-2 & 3, she filed a Complaint before the District Forum, Thiruvananthapuram.

3.    The District Forum held both the Hospitals liable for medical negligence and allowed the Complaint with direction to pay Rs.3 lacs as a compensation within two months from the date of Order.    The OP-1-State of Kerala was  exempted from the liability. 

4.      In Appeal, the State Commission allowed the appeal and set aside the District Forum's order and hence the Complainant approached this Forum i.e. NCDRC. 

Held :

1. The facts and documents revealed that the condition of the patient with  the complaints of swelling of both legs with peeling of skin from both hands and thighs, also complaining of itching throughout the body was diagnosed as Exfoliative Dermatitis with Raynaud’s phenomenon.  

2. The patient was treated with antibiotics, anti-allergic and steroid drugs.  She was also advised vasodilators and skin ointment.  It is pertinent to note that the steroid was given in tapering doses till 30.03.2002.  Thereafter, she was referred to Medical College Hospital for further investigations and management.

3. The NCDRC relied upon the  replies given by Dr. M. Unnikrishnan,  the Professor of Vascular surgery at Sree Chitra Tirunal Institute of Medical Sciences and Technology, Thiruvanantharuram.  He stated that the Exfoliative Dermatitis was not due to drugs in the instant case.  

4. The Commission observed that the thrombosis of Axillary Artery was neither due to wrong medication nor due to Exfoliative Dermatitis.  The Commission also relied upon the  opinion of Head of the Department of Surgery at Medical College Hospital, who opined that the Treatment given was proper, and observed as under :

“On admission her peripheral pulsations on the left arm were absent. An emergency Doppler was done and the patient was detected to have axillary artery thrombosis.  The case was referred to the Thoracic surgeon for expert opinion and he advised thromboembolectomy after explaining the poor prognosis to the patient and by-standers.  Since there was no Fogarty’s Catheter available in the hospital, Fogarty’s cathetor (costing around Rs.1000) in the possession of Dr. R.C. Sreekumar, qualified Vascular surgeon was used to do embolectomy, and it was done on 01.04.2002.  The Thromboembolus was removed from the axillary, brachial, and radial arteries.

Since the patient was detected to have a systolic murmer, the patient was also referred to Cardiology Department.  They advised an Echocardiogram costing Rs.400/-.  The chief of S6 unit certified that the patient was too poor to pay to enable waiver of the above charges.

During her stay from 30.03.2002 to 08.05.2002 in the Medical College hospital, repeated consultations were made with Thoracic Orthopaedics and vascular surgeons.

Since the arteries were completely occluded for a long time prior to admission, the viability of the distal part of the arm could not be salvaged in spite of the best efforts of the various surgical teams.  Many of the drugs required were supplied by Superintendent, Medical college Hospital without cost.  At no time during the patient’s stay in the hospital was there any private consultations with any of the doctors treating her.

The patient was discharged on 8.5.02 with appropriate advise for further management and reviews. These facts are as per records available in the hospital.”

5. It was held that the above facts indicate that both the hospitals  treated the patient and further embolectomy was performed by the qualified Vascular surgeon.  The treating doctors performed their duties with reasonable care and skills. 

It is pertinent to note that the medicine Dexamethasone will not cause axillary artery thrombosis even if the patient is diabetic.  The NCDRC agreed with the observations of the State Commission that the District Forum without considering the evidence held the OPs liable for deficiency in service and negligence. 

6. It was held that the District Forum based on surmises and presumptions wrongly held the OP-2 & 3 liable for medical negligence.

7. It was held that the axillary artery thrombosis was not due to any wrong treatment of the OPs, but due to long standing diabetic and hypertensive status of the patient, for that OPs shall not be held responsible. The commission also held that The photographs of patient's left hand placed  to show her deformity,  was not due to deficiency or negligence during treatment from the OPs. The patient suffered deformity due to axillary artery thrombosis, which is a totally distinct and different entity having no relation with the treatment (drugs) given by the OPs.

8. Lastly it was held that     Though, the commission has sympathy for the patient for her sufferings but it cannot translate into a legal remedy.  

This judgment would be of great help in many medical negligence cases since in many cases the case of the complainant revolves around "sympathy" and that as held rightly cannot be the basis to decide negligence of the Doctors.

In this case the documents and the treatment given proved to be correct and as per the protocol. Had there been any lapses, then the judgment would have been different ? So, yet again, remember

"NO DOCUMENTATION IS NO PROOF, POOR DOCUMENTATION IS POOR PROOF"

No doubt, the Complainant in this case, fought in person and the mockery of justice is that the incident took place in the year 2002 and it is  finally decided in the year 2023 !

thanks and regards

ADV. ROHiT ERANDE

Pune. ©