NCDRC Relief to Apollo Hospital doctors on charges of negligence while treating Cancer patient, notes inadequacy of doctors in India

New Delhi: The National Consumer Disputes Redressal Commission recently exonerated two doctors of Apollo Hospital, Kolkata from charges of medical negligence while attending a patient who was undergoing chemotherapy treatment for metastatic ovarian cancer and died inside ICU.

Although the husband of the deceased patient had demanded a token compensation of Rs 1 against the alleged negligence and technical lapses on the part of the doctors, the top consumer court relied on the opinions expressed by WBMC, the expert Medical Board and the Supreme Court order and exonerated the doctors.

At this outset, the NCDRC bench also referred to the inadequacy of doctors and nurses in India and noted, "It should be borne in mind that, in most of the hospitals in our country the doctor: nurse ratio in the ICU is inadequate to take care of all serious patients. Considering the peculiarity of the case, in our view, medical negligence was not evident from the doctor(s) in SICU except the technical lapses and coordination between the on duty doctors and nursing staff."

The concerned patient was under chemotherapy treatment for metastatic ovarian cancer. However, the patient was critical, in terminal stage and on ventilatory support. It was alleged that on 30.07.2014, the patient died because of negligence and some technical lapses from the doctors in the ICU. 

Aggrieved by the conduct of the treating doctors, the husband of the deceased patient filed a complaint before the State Commission and claimed Rs 1 as token compensation. However, the State Commission dismissed the complaint for want of pecuniary jurisdiction with liberty to file fresh complaint before the appropriate forum.

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Therefore, the complainant approached the District Forum, Kolkata. While the complainant mentioned that the value of his wife's life could not be made, he prayed for a token sum of Rs 1 (Rupee one) compensation for the deficiency in service of the ICU doctor on duty.

Observing that the complainant had failed to prove the allegations of medical negligence, the District Forum had held that the complaint had no merit and therefore had dismissed the same.

When the complainant approached the State Consumer Court, it had set aside the order of the District Forum and had held that "the complainant had sufficient cause to raise his grievance against the OPs/Respondents". However, the State Commission had not imposed any penalty or compensation on the treating doctors and the hospital.

Following this, both the hospital and the doctor had approached the National Consumer Court being aggrieved by the observations made by the State Commission.

After considering the arguments made by both the parties, and perusing the material on record, the NCDRC bench noted that on the directions given by the Chief Judicial Magistrate 24 Parganas (North) at Sealdah, the Superintendent of NRS Medical College had constituted a Medical Board comprising of five members. The Board was chaired by the HOD of the Department of Forensic & State Medicine. 

This Medical Board had asked for the opinion of Prof. Ajay Gupta, who is a Medico Legal expert. Dr. Gupta had stated that death of Mrs. Susmita Mitter was due to rash and negligent act on the part of the consultants and other attending doctors.

Accordingly, the Medical Board had opined, "...there are some technical lapses and improper documentation of the treatment procedure in the terminal stages but whether that has lead to or hastened the death process of the patient who was already suffering from malignancy disease in terminal stage could not be ascertained."

After going through the medical records and the opinion of Dr Gupta, the Medical Board had noted that the patient had not been attended by the doctors of Surgical ICU from 2 A.M. of 30.07.2014 to 9 A.M. of the same day as there was no documentation of notes. It was the opinion of the board that serious patients should be attended frequently.

Apart from this, the Board also noted about the lack of documentation of notes informing the relatives of the patient about the seriousness of the patient's condition. However, the board had noted that no definite evidence of absence of any doctor on duty of surgical ICY was not found as there are notes at 2.a.m. and 9 a.m. of the concerned day. The same could be confirmed if the attendance sheet and the duty roster of doctors of that particular day could be checked, the board had observed.

The NCDRC bench noted at this outset, that referring to the alleged absence of doctors, the State Commission had noted,

"Fact remains, when the patient's condition became critical in the surgical ICU in night of 30.7.2014, she was not attended by the Doctors i.e. OPs no.2 and 3 herein though they were entrusted to do so but their carelessness furthered sufferings of the patient who became restless before breathing her last. In such a state it caused the hamper of emotions of her relatives and it became the multi super special carelessness on the part of the respondent/a multi super specialty Hospital."

Meanwhile, the complainant had filed a complaint before the West Bengal Medical Council(WBMC) Kolkata and brought several allegations against them while providing treatment to the patient. However, WBMC had concluded that no negligence could be substantiated against the treating doctors. Referring to the biometric record, the Council had noted that Dr Mookerjee had left the hospital at 7.05 am on 30.04.2014 and Dr. Indu was on duty from 10am on the same day. 

Against the order of WBMC, the complainant had approached the Medical Council of India (MCI), but the Ethics Committee of MCI had upheld the order of WBMC.

Considering all the facts, the NCDRC bench opined that without any doubt, the act of petitioners (doctors and the hospital) could be attributed to the technical lapses or improper documentation of terminally ill patient.

However, the top consumer court further noted in this context,

"In our view, in the instant case the "doctrine of loss of chance" is also not come to the help of Complainant. A patient's claim of loss of chance because of negligence must also establish actual harm specifically caused by the delayed treatment or diagnosis. Admittedly, from the medical record, it is evident that the patient was in very critical stage and under proper supervision and treatment."

"The Consumer Protection Act is benevolent social legislation, but it should not be a "halter around the neck" of the doctors," it further observed while referring to Supreme Court's order in the case of Kusum Sharma & Others vs Batra Hospital & Medical Research Centre and others.

In the same order, the top court had held that "It is a matter of common knowledge that after some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish."

Therefore, relying on the opinion of WBMC, the Medical Board and the principles laid down by the Supreme Court, the NCDRC bench observed, "we don't think it was a case of strict liability of medical negligence. The patient was in SICU and very critical (in death bed). It should be borne in mind that, in most of the hospitals in our country the doctor: nurse ratio in the ICU is inadequate to take care of all serious patients. Considering the peculiarity of the case, in our view, medical negligence was not evident from the doctor(s) in SICU except the technical lapses and coordination between the on duty doctors and nursing staff."

However, the top consumer court also warned the hospital and mentioned in the order, "We request the hospital authority to improvise their functioning to avoid such lapses in future."

To read the NCDRC order, click on the link below.

https://medicaldialogues.in/pdf_upload/ncdrc-order-186201.pdf

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