Alleged Medical Negligence in laparoscopic surgery, incorrect painkiller administration- Consumer Court exonerates Chhattisgarh Hospital

The history of the case goes back to 2013 when the complainant's wife, earlier diagnosed with Ovary Torsoin, was admitted to treating Hospital and was operated on through laparoscopy by the treating doctors. 

Post surgery, the tissues were sent for biopsy that was conducted on 15.10.2013 and a detailed report was submitted by Dr. Gahine of M/s. Vibha Colour Sonography & Diagnostic Centre. The opinion expressed was of an impression suggestive of mucinous cystadenoma.

When the patient went for a check-up on 27.10.2013, she was asked to come back for a follow-up after 15 days. However, she went to the hospital in January 2014. She was examined again and the report mentioned "A large mass above uterus most probably arising From It ovary s/o It ovarian neoplasty".

Accordingly, she again underwent Ultrasonography on 18.03.2014 when malignancy was detected. The patient then went to the Nanavati Hospital in Bombay. During her treatment there, a histopathological examination was also undertaken at S.L. Raheja Hospital, Mumbai on 27.03.2014, and it was discovered that the growth in the ovary was cancerous.

The complainant alleged that during the treatment of the patient at Nanavati Hospital, the patient was informed that the administration of Nimesulide pain killer, to the patient was incorrect as it was a prohibited drug.

Filing the consumer complaint, the complainant alleged medical negligence against the treating Hospital. Contesting the complaint, the hospital denied the allegations of any medical negligence or deficiency of service, and during the pendency of the complaint, the patient died on 02.08.2015.

However, the State Commission dismissed the complaint on 11.02.2016, holding that there was no error in the protocol that was followed for either conducting the hystopathological test and its conclusion by the hospital, and there was no deficiency in service in carrying out the surgery.

After assessing the evidence and the answers to the interrogatories issued to the hospital and diagnostic centre, concluded that there was no deficiency in the line of treatment, nor was there any default in the analysis made by the diagnostic centre. 

Challenging the State Commission's order, the complainant approached the Apex Consumer Court. His counsel argued that the State Commission erred in as much as the histopathological report was incorrect despite the fact that all the elements of cancer were clearly traceable as per the subsequent histopathological report conducted at Bombay, which confirmed the existence of cancer, based on the same slide, which was prepared from the biopsy condudcted at the time of the surgery.

Therefore, the counsel argued that the histopathological report prepared by the diagnostic centre was negligently drawn up without taking due care of examining the tissues that were sent for biopsy. Thus, a wrong report had resulted in an incorrect method of surgery, and the Surgeon also did not take any steps to get the said slides checked once again for a deeper probe once a doubt had been expressed in the report itself.

It was contended that once the report dated 19.10.2013 had given the impressions suggestive of a tumour, then to ascertain whether it was benign or malignant, a further test ought to have been carried out. Therefore, the opinion being incorrect and the surgeon having failed to take appropriate steps to get a further probe into the morphology of the tissues established medical negligence.

NCDRC noted that while addressing this argument, the State Commission had proceeded to further examine the final reports that were issued from Raheja Hospital, Bombay, dated 27.03.2014, and observed that the said report indicated that the cancer might have emerged from the Colon or the appendix. The State Commission also quoted the observations made in the discharge summary from the Nanavati Hospital, which stated the diagnosis as "Ca Colon Metastasis to the ovary."

"The reference is to the final diagnosis dated 07.04.2014 indicating that the cancer was initially located in the Colon and might have spread to the ovary. The State Commission therefore came to the conclusion that on 14.10.2013 when the surgery was conducted, the histopathological report dated 19.10.2013 that followed after the biopsy was suggestive of the tumour as noted above, but it was subject to further probe which the Opposite Party No. 2 had also explained in her reply contending that such tumour can be benign or malign. Thus, the report dated 19.10.2013 cannot be said to be an incorrect or a wrong report or otherwise misleading in nature. There was no deception which could be gathered from the said report which made a suggestion and could have been confirmed later on," noted the top consumer court.

It further observed that the diagnostic centre in her statement mentioned that, given the impression as recorded in the report dated 19.10.2013, at that stage it was not necessary to carry out any final marker tests.

Therefore, the NCDRC bench noted, "From the facts that have been discussed by the State Commission and inferences drawn, it cannot be said that the conclusion drawn by the State Commission is either perverse or suffers from non-consideration of the relevant material."

"Even otherwise there is no expert report adduced by the Complainant Appellant to counter the aforesaid stand taken by the Respondents that has been accepted by the State Commission," it observed.

Even though the complainant's counsel claimed that the surgery was conducted without the consent of the patient or their attendants, the top Commission found this to be incorrect as the records showed the signature of the mother-in-law of the deceased patient. 

Dismissing the counsel's argument that the consent form does not mention laparoscopic surgery, the NCDRC bench noted,

"We are unable to accept this contention as well in as much as the prescription at the time of admission categorically records the preparation proposing laparoscopic surgery. Thus the patient and the attendants were fully informed of the nature of the surgery which was to be performed. There is one more factor to be noticed that has been indicated in the impugned Order of the State Commission, that the patient was brought by her relative Dr. ***, who was also in consultation during the entire process. Thus it cannot be said that the patient or their attendants including the complainants were unaware about the laparascopic surgery that was being undertaken. Even otherwise it was a clear case that the open surgery was being conducted at Shubh Kamna Hospital but it was the patient and attendants who chose the laparascopic surgery to be conducted at the Respondent No. 1 Hospital. Consequently, the arguments that laparoscopy was performed without the knowledge of the patient or their attendants is incorrect."

Regarding the allegation that an incorrect painkiller had been administered, the Commission noted that no evidence was adduced, nor was it available to demonstrate that any complication had arisen on account of the administration of any medicine as alleged.

Accordingly, the Apex Consumer Court dismissed the appeal, noting,

"There is no evidence to demonstrate that there was any negligence on the part of the Surgeons during surgery. The surgery notes are very much on record and the State Commission has extensively dealt with all the issues raised in this regard. In effect, the impugned Order of the State Commission is so exhaustive and in detail that we do not find any error in the assessment of the evidence by the State Commission or conclusions drawn on the basis of the evidence on record."

To view the order, click on the link below:

https://medicaldialogues.in/pdf_upload/ncdrc-no-med-negligence-297213.pdf

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