Death of Doctor during laparoscopic Dye Test: NCDRC slaps Rs 1.25 crore compensation on Kolkata Hospital

New Delhi: Holding a Kolkata based tertiary care hospital, Kothari Medical Centre, deficient to provide highest standard of essential infrastructure, the National Consumer Disputes Redressal Commission (NCDRC) directed the hospital to pay Rs 1.25 crore compensation to the family of a patient who died while undergoing ‘D & C’ laparoscopic Dye Test at the hospital.

Although the Commission exonerated the treating doctors, it held the hospital deficient for not providing the essential infrastructure. Summing up the lapses on the part of the hospital, the Commission noted, "A few blank spaces were apparent in the Consent Form. Age and Weight of the patient were erroneously recorded. Pre-anesthetic check-up was not done. The specimen of endometrium was not sent for Histo-Pathology Examination (HPE), which was admitted by the hospital, as it was “lost” and hence not sent for HPE. More importantly, Capnograph, as also proper Multi Channel Monitoring System of acceptable standard, were not available in the OT even though it was a Tertiary Care Hospital."

In this regard, the Commission also referred to the fact that the West Bengal Medical Council (WBMC) had also directed to write to the Director of Health Services of the Government of West Bengal citing deficiencies in the infrastructure of a Tertiary Care Hospital and to request him to advise the concerned hospital authority to install recording facilities in all the monitors installed in every OT so that retrieval of data for future examination can be made possible.

"A most serious lapse was the association of the OP- 5 “Doctor” (Ms. Nirmala Jaiswal) with the operation, who, it is an admitted and proved fact, was not qualified as a Doctor at all and had no medical degree whatsoever but was yet an integral part of the operating team of doctors. In fact she was employed with the OP-1 as “Resident Registrar”. The very fact that a person masquerading as a Doctor was inside the OT with the approval and knowledge of the Hospital Administration speaks (most adversely) for itself and is per se an unfair and deceptive act within the meaning of ‘unfair trade practice’ under the Act 1986," it further noted.

The matter goes back to 2012 when Dr Sen, a young practicing physician had approached Gynaecologist Dr. Samir Roy for her pelvic pain during menses. Although the patient got temporary relief after taking Oral Contraceptive Pills, the pain continued after medicines were stopped. Therefore, the Gynaecologist advised for ‘D & C’ laparoscopic Dye Test.

Also Read: Homeopathic Doctor told to pay Rs 3.5 lakh for wrong treatment and gross medical negligence resulting in death of patient

Although the patient had initially denied for the invasive procedure, ultimately she agreed and the test was fixed to be done in Kothari Medical Centre. Accordingly the test procedure commenced on 05.03.2014 at around 9.50 am. However, within 15 minutes of commencement of the test, the husband of the patient had been informed that the patient had suffered a massive Cardiac arrest and there was no hope of survival. Immediately, the patient was shifted to ICU, but ultimately the patient was declared to be dead.

Alleging that the patient had died due to gross medical negligence of the Hospital and the treating Gynaecologist, the Complainant had lodged an FIR before Alipore Police Station registered under section 304A/34 of IPC. The post mortem examination revealed that the surgical procedure was the cause of death. 

Several other allegations were labelled against the treating doctor and the hospital. It was alleged that the doctor lacked the skill to perform the concerned test, he caused bowel injury to the patient, video recording of the procedure was not done, pre-anaesthetic check-up was not done, the anesthetist allegedly administered the anaesthesia without safety measures like multi-channel monitors and the procedure was allegedly done without Capnograph machine.

Aggrieved by the gross medical negligence on the part of the doctors and the hospital, the complainants filed the complaint before NCDRC under Section 21(a)(i) of the Consumer Protection Act, 1986 and prayed for a compensation of Rs 50,47,59,167 along with 18% interest.

It was argued by the counsel for the complainant that the Anesthetist had failed to treat the Cardiac arrest within the Golden time. Referring to the records, the complainant's counsel submitted that administration of Adrenaline and the arrival of blue code was done 10 minutes after the cardiac arrest. In this regard, the counsel for the complainant claimed that it was beyond golden time to reverse a cardiac arrest. 

The Gynaecologist Dr Samir Roy, submitted that initially the patient was diagnosed as repeated secondary dysmenorrhea. Mentioning that the patient had been given oral contraceptive pills (OCP) and other medicines for relief from pain, the doctor further submitted that Ultrasonography (USG) revealed multiple myomas – i.e. benign tumors (fibroids) of uterus, adenomyosis and poly cystic ovarian syndrome (PCOD). Thereafter, in March 2013, the doctor had advised ‘Dilation & Curettage with Laparoscopic Dye Test’ to visualise the pelvic organs.

Referring to the test procedure, the doctor submitted that the procedure was completed with curettage of one strip of endometrium obtained. After 15 minutes of the completion of the procedure, the RMO informed about sudden deterioration of the condition of the patient.

The Anesthetist and other doctors including the visiting cardiologist also submitted their version and all of them claimed that the patient had could not be survived despite all the efforts to save her.

After perusing the entire medical record and the expert opinions filed on behalf of both the sides, the top consumer court also perused the observation made by West Bengal Medical Council (WBMC) which had opined that the doctors were not negligent.

It had also pointed out deficiencies in the infrastructure of a Tertiary Care Hospital. In fact, the Council had decided to write to the Director of Health Services, Government of West Bengal to advise the concerned hospital authorities to install recording facilities in the OT monitors so that retrieval of data for future examination could be made possible.

Further, the NCDRC bench noted that the decision of the WBMC was challenged before the Ethics Committee of MCI, which had unanimously decided to exonerate the operating surgeon, the Anesthetist, and the Cardiologist. 

The Apex consumer Court also noted that the WBMC had taken an opinion of Prof. H. L. Kaul, the retired Prof. & Head of the department of Anaesthesiology, at AIIMS, New Delhi. After going through the medical records, and the opinion given by the Forensic Expert, Prof. Kaul had opined the possibilities for cause of cardiac arrest as:

1. Anaphylactic shock to Methylene blue instillation (patient has history of allergy to certain drugs as elicited in history).

2. Gas embolism due to uncontrolled gas insufflations or direct injection of gas into an organ (small intestine perforation)or a blood vessel. (no mention made of insufflating pressure or use of an gas insufflator).

The Commission also referred to the opinion given by the Expert Committee, which had opined that anaphylaxis or embolism was possible by any drug (including dye or gas) used during the entire procedure. However, the Committee opined that anaphylaxis management was done properly. The Committee opined that the cause of death or any deficiency in the management by the anaesthetist and gynaecologist could not be fixed. It was mentioned by the Committee that the final opinion will be given after the receipt of Multichannel monitor record (including the capnography record) and the Histopathology report of the endometrium.

Taking note of the medical history and the symptoms of the patient, the Commission noted that it was "Secondary Dysmenorrhoea” which is a cyclic menstrual pain that occurs in association with underlying pelvic pathology. Referring to the medical literature, the Commission opined that the doctor's decision to "perform laparoscopic dye test was neither wrong decision nor it was a therapeutic misadventure" as it pointed out that "Laparoscopy is essential in diagnosing some causes of chronic pelvic pain such as endometriosis and chronic pelvic inflammatory disease. Diagnostic laparoscopy is the only test capable of reliably diagnosing peritoneal endometriosis and adhesions."

Referring to this, the Commission opined that the treating gynaecologist, "treated the patient as per the accepted standard of practice."

The NCDRC bench also dismissed the allegations that there was overdose of Scoline on the part of the Anesthetist. "In our view, no overdose of Scoline administered by OP-3. It is evident from the anaesthesia record (chart) that Scoline was injected as per the recommended standard dose and the patient was under monitoring. The Post-Mortem report revealed the small intestine was extremely congested and there was perforation at *** illegible ***(? ileoceacle area). Even the PM findings did not indicate there was fatal intra-abdominal haemorrhage," noted the bench.

Exonerating the doctors and dismissing the allegations that the doctors failed to treat the patient during the golden period, the Commission noted that "doctrine of res ipsa loquitur is not applicable in the instant case."

While the Commission exonerated the doctors, it pointed out the lapses on the part of the hospital and noted,

"However, we can’t turn a blind eye to the grave lapses on the part of the hospital administration. With respect to consent, we find though it was a day care procedure and the consent was signed by the patient, but few blank spaces were also there."

Taking note of the OT facilities, the Commission referred to the opinion given by WBMC, which had opined that Capnography was not available in the OT.

"Though it was not a mandatory requirement, but in our view, the tertiary care hospital should provide Capnograph machine in the OT especially laparoscopy where CO2 gas is used for insufflation...in the instant case, it is an admitted fact that Capnography machine was not available during the procedure," the bench opined at this outset.

Further noting that the hospital had failed to convince about the availability of multichannel monitor, the Commission noted that

"The further lapse on the part of hospital is that the OP-5 doctor Ms. Nirmala Jaiswal was not registered with WBMC and her presence in the OT was not as an observer but she assisted the OP-2 doctor during the procedure. The WBMC is silent on her qualifications and registration. Also the OP-1 hospital administration failed to produce her qualifications and registration."

The NCDRC bench referred to the Supreme Court order in the case of Jacob Mathew and Bombay Hospital & Medical Research Centre vs. Asha Jaiswal & Ors., and C.P. Sreekumar (Dr.), MS (Ortho) v. S. Ramanujam and the recent judgment in the case of Dr. Harish Kumar Khurana v. Joginder Singh & Others.

Holding the hospital to be negligent, the top consumer court held that,

"Sequel to the above discussion, we conclusively determine ‘deficiency’ as well as ‘unfair trade practice’ on the part of the hospital - OP-1, a tertiary care hospital of which the highest standard of essential infrastructure and patient’s care and management was expected and required but which it failed to provide."

Exonerating the doctors, the Commission, further held, "However, we are unable to conclusively determine medical negligence on the part of the doctors – OPs- 2, 3 and 4."

Directing the hospital to pay compensation for the death of the patient, the NCDRC bench noted,

"It is unfortunate that the deceased was a young doctor, a physician, aged just 31 years, who lost her precious life. This necessitates just and adequate compensation. There is no straight jacketed formula for award of compensation, it is difficult to quantify the value of human life in monetary terms, but considering the facts and circumstances, to attempt to meet the ends of justice, lumpsum compensation of Rs. 1.25 crore appears to be just and adequate in the present case."

"As such, we deem it appropriate that the OP-1 hospital shall pay Rs. 1.25 crore to the Complainants within 6 weeks from today, failing which the amount shall carry interest at the rate of 9% per annum till its realisation. Additionally, the OP- 1 hospital shall pay Rs. 2 lakh towards cost of litigation to the Complainants," further read the order.

"We would also like to request the State Government of West Bengal through its Chief Secretary to get the OP-1 hospital inspected in order to ensure that it is compliant with the statutory requirements and licencing protocols," the Commission directed.

To read the order, click on the link below:

https://medicaldialogues.in/pdf_upload/kothari-medical-compensation--198607.pdf

Also Read: Patient dies of Subarachnoid Hemorrhage: Rs 25 lakh compensation on KIMS Hospital & doctors for not conducting proper investigations