The Surgeon being the Captain of Ship, must pay for lapses of Anesthetist in pre-surgery fitness checkup . Adv. ROHiT ERANDE ©

 The Surgeon being the Captain of Ship, must pay for lapses of Anesthetist and must ensure that the patient is fit for the surgery.  

Adv. ROHiT ERANDE ©

Before : NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

REVISION PETITION NO. 1016 OF 2019 & REVISION PETITION NO. 1066 OF 2019

 (Against the Order dated 19/06/2018 in Appeal No. 903/2015 of the State Commission Maharashtra)

PAREL HOSPITAL, MUMBAI V/s. UMA MANGESH NIKAM & 2 ORS. alongwith

Dr. Ajay Rathod V/s.  UMA MANGESH NIKAM & 2 ORS

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

Order Dated : 29 Mar 2023, judgment link : 

http://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidin=0%2F0%2FRP%2F1016%2F2019&dtofhearing=2023-03-29

Facts in short :                                                

1. The case goes back to 2008 !!. On 20.06.2008, a 66 years old lady Kusum -the patient  sustained fracture of forearm and on next day she was operated by Dr. Ajay Rathore, an Orthopedician (OP-1) in Parel Hospital, Mumbai (OP-2). The Anesthetist was Dr. Mulji Khemji Gada. 

2. It was alleged that the operation was conducted in the morning, but the patient did not regain consciousness due to excessive anesthesia. Her condition worsened further, she was intubated and put on ventilator. The patient was hospitalized for long period in unconscious condition. On 16.07.2008, the Neurologist, after doing CT and MRI, diagnosed it as ‘hypoxic encephalopathy’. Thereafter, the patient was shifted to another hospital, where she, without regaining consciousness, died on 24.10.2008. Being aggrieved, the patient’s daughter filed a complaint before the District Forum, Central Mumbai. The Anesthesiologist OP-3, died during pendency of the matter.

3.    the District forum dismissed the complaint and being aggrieved, the Respondent No. 1 / Complainant filed an Appeal before the State Commission. The State Commission allowed the Appeal and awarded compensation to the Complainant by setting aside the Order of the District Forum. 

4. The State commission in its order allowed the appeal with costs and apart from Hospital expenses of more than Rs.1.60 lakhs+, the court directed the opponents Hospital to pay Rs.8 lakhs and & the Doctor to  pay Rs. 2 lakhs, alongwith interest, to the complainant . Hence this appeal.

Held by NCDRC: 

1.       The NCDRC Observed that it is evident from the record the Anesthetist had not performed the pre-anesthetic test properly. He administered anesthesia by Ketamine along with injection Fortwin 25mg and Compose 10 mg. It is pertinent to note that Ketamine was given as 5ml in Ringer Lactate and later on 3ml was administered. It was an excessive dose of ketamine in the old patient of 66 years. In my view, it was the negligence and failure of duty of care from the Anesthetist, who administered excessive dose of ketamine and failed to managed the hypoxic event.  

2.     It is pertinent to note that the anesthesiologist (OP-3) did not even read the reports of investigations of patient and relied on telephonic communication by OP-1, given fitness for anaesthesia. After the surgery the patient did not come out of anaesthesia and she was shifted to another hospital for ICU Care. The patient was in vegetative state   for next 4 months and died on 24.1-.2008. The anaesthesia record of Parel Hospital on 21.06.2008 the day of operation it was noted that the patient suddenly suffered from hypoxia and was intubated. However, for emergency lifesaving intubation Dr. Brijesh Gupta the intensivist from ICU was called. Thus, the said delay was fatal and the patient was not properly managed. It was the negligence on the part of Anaesthesiologist (OP-3).

Expert Committee Report was in favour of Doctors, but the Court relied upon the observations of one of the Expert -Neurosurgeon who pointed out the low level of Hb should have been built up before the Surgery. 

3.     The expert Committee report from department of Traumatology and Orthopaedic Surgery of Grant Medical College and Sir J.J. group of Hospitals; Mumbai has given the report that there was no medical negligence on the part of operating surgeon. However, one of the experts- Dr. Kamlesh Jagyasi the Neurosurgeon opined that, as the Hb% of the patient was 7.4 gm%, it was low and it should have been built up before surgery, also pre-anaesthetic fitness should have been recorded. It was the valid point that the other experts have not commented on this point.  

4. It was observed that as there was no recovery from anesthesia after the operation,   the pre and postoperative care was certainly doubtful in the instant case. The  District Forum wrongly concluded that,  Dr. Kamlesh Jagyasi has nowhere stated that the doctor was negligent during the operation. There is no record showing that the patient was monitored during operation under anaesthesia and why a qualified anesthesiology had to call another intensivist doctor for endotracheal intubation. However, I agree with the opinion of expert committee which found no negligence of OP-1 in performing the Orthopaedic surgery.

5.   Though, negligence was attributable to the Anesthetist - OP-3, the hospital shall not be absolved from the vicarious liability.  Moreover, in the instant case  ‘Captain of the Ship’ was the Orthopedic Surgeon (OP-1) before proceeding to surgery, he was supposed to be careful to ascertain proper pre-anesthetic check-up and fitness from OP-3, but it  was lacking in the instant case.

This case would emphasis upon the important routine to be followed before the surgery. In the instant case, perhaps what otherwise could have been a simple surgery, turned into the last and disastrous one for the patient.  The Court has also relied upon the expert committee member's observation regarding low Hb%, even though the committee gave clean chit. So to follow the SOPs has no alternative irrespective of nature of surgery. 

This judgement will not be welcomed by Surgeons for sure. The Question might be posed by the Surgeons that whether an anaesthetist is not qualified and has no independence to choose to administer anaesthesia ?

Once he or she chooses to give anaesthesia, why surgeon should be responsible?

As a result Surgeons might refuse to do high risk surgeties

With kind regards

Adv. ROHiT ERANDE. ©

Pune.