Amputation Post Surgery: Vascular Surgeon, Hospital slapped Rs 75 lakh compensation for medical negligence
Medical Negligence
New Delhi: The National Consumer Disputes Redressal Commission (NCDRC) has directed a Kolkata-based vascular surgeon and Nightingale Diagnostic and Medicare Centre Pvt. Ltd to pay Rs 75 lakh in compensation to a minor patient who suffered 90% permanent disability after undergoing Arterio-Venous Malformation (AVM) embolization surgery, which ultimately led to the amputation of her right leg above the knee due to alleged medical negligence.
The bench comprising Presiding Member Subhash Chandra and Member AVM J Rajendra AVSM VSM (Retd.) found the doctor and hospital jointly guilty of medical negligence and deficiency in service that included misrepresentation of post-surgical complications, inadequate informed consent, and failure to explore alternative treatment options.
Furthermore, by holding the hospital equally liable, the Commission clarified that hospitals cannot evade liability merely by arguing that a doctor was independently responsible for a procedure performed on their premises.
Additionally, the Commission rejected the hospital’s argument that the signed high-risk consent form absolved them of liability, observing that;
"The consent obtained in the present case and the assertions made by the OPs in defence are of limited consequence. If the surgery entailed High Risk as asserted by OPs, it was even more imperative for the OPs to elicit the necessary responses with specific questions with respect to the medical history and associated conditions of patient to determine her risk potential and take necessary preventive measures as well as effective measures to deal with the situation of handling such subsequent conditions. This was not done and, after the slippage of the chemical Glue into the artery and the blood flow was blocked, the patient had to be urgently shifted to Ganga Ram Hospital in Delhi in very critical condition, where her right leg was amputated."
"In the case in question, the High Risk Consent Form with respect to the AVM embolization surgery dated 16.09.2015 is placed on record. This is a printed format with the information given, explanation made, possible risks during the surgical procedures, anesthetic procedures, medications and pre-existing and current medical conditions. It also indicates the consent of the possibility of unforeseen conditions arising. Therefore, it is unclear as to whether the said High Risk due to which the patient in fact lost her leg, was informed to them at that stage at all. Therefore, this Consent cannot be termed as an informed consent for accepting such High Risk, as contended by OPs."
The Commission further explained;
"In the light of these facts and statutory provisions, the “Bolam Test” can no longer be applied to a doctor's advice to his patient, unless it complies with the statutory provisions. The information given to the patient has to be examined from the patient's perspective. The information disclosed is not limited to risk-related inputs. It should include doctor's diagnosis of the patient's condition, the prognosis of that condition with and without medical treatment, the nature of proposed medical treatment and the risks associated with it, the alternative to the proposed medical treatment, advantages and risks of the said treatment and the proposed treatment. The doctor must ensure that information given is “in terms and at a pace that allows the patient to assimilate it, thereby enabling the patient to make informed decision”."
2. Post-Operative Complications and Duty of Care
Following the procedure, the patient developed severe complications, including complete loss of circulation in the right leg, ultimately necessitating amputation. The Commission observed that while the complication was identified, the measures taken were not sufficient to prevent permanent disability.
“The contention of the OP-1 that he had not received any fees for the treatment of the patient in question and, in the absence of any consideration, she does not constitute a consumer is also untenable as, clearly, the parents of the child paid the fees to the Hospital and that itself constitutes the consideration with respect to OP-1 as well.”
3. Finding of Medical Negligence and Deficiency in Service
The NCDRC held both the surgeon and Nightingale Hospital liable for medical negligence and deficiency in service, stating;
“In view of the foregoing deliberations and the decisions of the Hon’ble Supreme Court, the negligence and deficiency in service on the part of the OPs is manifest.”
Subsequently, the Commission concluded that the complications arising from glue slippage, which ultimately led to the amputation, should have been explicitly discussed with the patient and her family beforehand. The failure to do so constituted medical negligence. It held;
"In the present case, undisputedly the patient who of 17 years at the time of surgery, lost her right leg till above knee and thus left permanently disabled. The negligence in performing the AVM Surgery by the OP is manifest and she is otherwise in healthy condition. Without doubt, the unexpected consequence of amputation of her leg has resulted in severely impacting on her self-esteem, employability as well as living her life with dignity. She was issued with a Certificate by RG Kar Medical C. Hospital, Kolkata dated 25.11.2016 declaring that she suffered 90% permanent disability. The patient who suffered the consequences is a girl child and thus the implications are even more profound. The Complainants stated to have incurred Rs.2,00,000 towards the surgery itself and spent Rs.7,25,000/- for prosthetic leg, which needs regular replacement. Therefore, there is certainly a need to compensate her for the pain, suffering and loss of future prospects, gainful employment, settlement and trauma and enable her to live her life with reasonable security and dignity. With due regard to the foregoing, we consider it appropriate to award a lumpsum compensation of Rs. 75 Lakhs to be paid jointly and severally by the OPs to the Complainants, within a period of one month from the date of this order. In the event of delay beyond one month, the OPs are also liable to pay simple interest @ 12% per annum on Rs.75 Lakhs till the date of final payment."
"With due regard to the entire facts and circumstances of the case, the OPs are also directed to pay Rs. 50,000/- to the Complainants as costs of litigation."
Click on the link below to view the original order:
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