Consumer court holds surgeon liable for gross negligence in varicose vein treatment, slaps Rs 3 lakh compensation

Based on the report, the treating doctor advised laser treatment and informed that since the vein behind the right knee had narrowed, laser treatment could not be done, and the issue could be resolved through open surgery.

Accordingly, pre-surgery tests were conducted, and the treating doctor informed the complainant that there was no problem. Consequently, laser treatment and open surgery on the right leg were performed. The patient was discharged on the same day with the advice that the bandage could be removed after two days. 

Allegedly, when the complainant removed the bandage, blisters appeared, as if they were burnt, in the area where the laser was conducted. However, there was no problem in the area where open surgery was done. After the treating doctor was informed about this, he prescribed an ointment.

It was also alleged that after the course of the painkillers was completed, due to severe pain in the area where laser was done, the complainant couldn't place the foot on the ground and therefore, he became unable to work.

When he approached the treating doctor for a follow-up, the doctor informed that it was a case requiring open surgery and the laser procedure was done by taking a high risk and since the vein was very close to the skin, it resulted in burns like this. 

Based on the doctor's advice, the complainant went to work. However, he suffered fever and pain and had to consult a Hospital in Vadakara and later a Health Centre. After doing a blood test, it was found that the count was 20400, and he was advised to consult the first treating doctor, who, after allegedly accepting his fault in surgery, advised him to consult another M.D. Medicine Doctor. After examination, the second doctor informed that the infection was from the area of laser. Even though medicines were prescribed, the pain in the leg did not go away and later the complainant consulted a surgeon, who took nerve of the right leg and sent it for examination and submitted the report. Allegedly, the complainant is still taking treatment for the problem and had to spend a lot. The complainant filed a consumer complaint alleging medical negligence against the first treating doctor. 

On the other hand, the first treating doctor and hospital submitted that the complainant was treated as per the universally accepted standard medical protocol, with all care, caution, and attention. It was submitted that the complainant had a complaint of varicose veins for more than 10 years and had tried all forms of treatment including Ayurveda and Homeopathy but without relief. A venous color Doppler of both lower limbs was prescribed and the report showed Bilateral dilated great saphenous vein (GSV) with Dilated right small saphenous vein (SSV) with multiple below-knee perforators incompetence.

Based on clinical examination findings and Doppler study the patient was informed about his advanced stage of varicose veins and also about the need for surgery. Since patient’s disease condition was in its advanced stage he required removal of certain parts of the veins by doing an open surgery and the pros and cons of the proposed surgical treatment was discussed with him and he accepted his disease status and agreed for the surgical procedure. The medically accepted and known risk factors were also discussed with the patient and it was decided to do Right side Endovenous laser procedure ablation of varicose vein with SPJ ligation with sclerotherapy under spinal anesthesia. The risk and complications involved in the surgery especially in view of advanced disease condition were discussed with the patient and detailed written informed consent was obtained preoperatively, submitted the doctor and hospital. They further claimed that under all care and aseptic sterile precautions, Endovenous laser procedure ablation of varicose vein with SPJ ligation with sclerotherapy under spinal anesthesia was completed without any complications.

They also submitted that formation of cellulites in laser ablation of varicose vein is a reported known complication involved in the treatment of varicose vein as the veins were just underneath the skin and the possible thermal injury despite taking due care and caution could not be ruled out. It was also submitted that there was no carelessness or fault in treatment at any point. It was submitted that the complainant on his own volition continued treatment elsewhere and he was completely cured with treatment. The complainant also did not care to apply compression stalking and later formation of cellulites and infection are induced by factors beyond the control of the treating doctor, they claimed, adding that there was no medical negligence or deficiency in service.

While considering the matter, the consumer court examined the expert opinion given by a doctor having 8 years experience in Laparoscopic surgery and varicose vein surgery, consultant Department of General and Minimal Access surgery in Trivandrum. Taking note of the same, the Commission observed, "...evidence of DW2 is taken as a whole we could understand that, the mode of procedure has to be opted by a surgeon after examining the clinical condition of the patient as well as scan report. Ext.A3 is the scan report of the patient taken on the 1st day of examination of the complainant. Here it is to be noted that DW2 the Expert doctor opined after examining Ext.A3 that as per GSV measures in Ext.A3, though the laser procedure opted by 1st OP is a correct method, open surgery , on the posterior thigh also possible. It is to be noted that the complainant did not experience any discomfort from the open surgery procedure."

At this outset, the Commission further noted, "Then as an experienced doctor, 1st OP could have avoid laser procedure and opted open surgery on the complainant as he has knowledge about the happening of complication after laser procedure."

The consumer court also noted that the treating doctor admitted that after two days, the complainant contacted him via phone and informed him about blisters in the laser procedure area. Thereafter, the patient was advised to apply heal ointment, and after two weeks, the complainant came up in the OPD in BMH Calicut and informed about pain. Consequently, anti inflammatory tablet for 5 days was prescribed. Further, the patient was instructed to use compression stocking.

"But in the prescription of 1st OP dated 28/6/23, only chymoral Tab (anti inflammatory) was given. We can see either in the said prescription or in the discharge summary Ext.B1 1st OP has not mentioned about using bandage. But from the statement of complainant, he was given instruction to wear bandage, and he had also used compression stalking," noted the Commission.

It was further observed that even though informed consent was taken from the patient, the possible complications related to the procedure were not mentioned in it.

"The said portion is left as blank. During cross examination complainant pleaded that 1st OP had not mentioned about the chance of complications, which will happen after laser procedure. Hence from Ext.B1(a) itself we can presume that the details of complications, had not explained to the patient before the procedure, which also reveals that there was medical negligence which leads to deficiency in service on the part of 1st OP," the Commission observed at this outset.

Accordingly, the consumer court held the treating doctor guilty of medical negligence, noting,

"From available evidence this complaint is liable to be allowed. The reason being that the negligence made by 1st OP is quite apparent and no expert report is required to examine whether negligence was made or not. All these facts of the case lead us to believe that this is a case of gross medical negligence in the treatment of the complainant and hence the complainant is entitled to get relief. OPs 2&3 (hospitals) are having vicarious liability."

Allowing the complaint in part, the consumer court directed the treating doctor, hospital and its management to pay Rs 1,00,000 to the complainant towards hospital expenses incurred by the complainant. 

"Opposite parties 1 to 3 are further directed to pay Rs.2,00,000/- towards compensation for the medical negligence on the part of opposite parties. Complainant failed to submit any documents related to his job and income. So we are not inclined to allow any amount on that head. Opposite parties 1 to 3 are further directed to pay Rs.25,000/- towards litigation expense. Opposite parties 1 to 3 are directed to comply the order within one month from the date of receipt of the certified copy of this order, failing which Rs.2,00,000/- + Rs.1,00,000/- will carry interest @9% per annum from the date of order till realization and the complainant can execute the order as per the provisions in Consumer Protection Act 2019," it ordered.

To view the order, click on the link below:

https://medicaldialogues.in/pdf_upload/gross-medical-negligence-kannur-dcdrc-323334.pdf

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