Excision sans CT scan, No Informed Consent: Ludhiana Hospital, Doctor slapped compensation

The history of the case goes back to 2017, when the 4-year-old patient was suffering from headache and her father took her to the Hans Maternity Home where she was checked by Paediatrician Dr. Chakarwarti. From there, the patient was referred to the treating hospital- Singla Hospital. It was alleged by the complainant that the hospital and its managing director Dr. Singla operated upon the patient without conducting any scan, x-ray etc after a telephone discussion with Dr Chakarwarti.

However, the patient's health deteriorated and she was taken to another hospital in Ludhiana, where she was again re-operated as the operation done by the treating hospital and its managing director was allegedly not done correctly. The patient remained in treatment in Deep Hospital from 12.05.2017 to 24.05.2017 and incurred huge costs for treatment.

Alleging deficiency against the treating hospital, maternity home and its doctors, the complainants filed a consumer complaint seeking Rs 1,27.311 along with interest and Rs 3 lakh as compensation and litigation expenses.

On the other hand, Singla Hospital and its managing director submitted that at the time of admission, the patient was having her ultrasound scan, blood test reports and OPD receipts of Dr Chakraworty from the first hospital. The patient was medically examined and it was found that there was swelling at the back of her head which was non-reducale, non-trans-illuminant and no cough impulse was present and ultrasound report was "Epidermal" inclusion Cyst-No intracranial extension was found. So, a probable diagnosis of sebaceous cyst or Demoid Cyst was made.

The patient was advised a C.T. Scan of the head but the complainants allegedly refused to do so citing their poor financial conditions and allegedly requested the doctor to remove the swelling. It was submitted that during the operation on 11.05.2017, the cyst was removed taking due care and precautions as required.

During operation, a small narrow, intracranial communication was found through which, CSF came out with pressure. The defect was stitched and pressure dressing was applied. Post-operatively, the patient was given fluid, antibiotics, etc., in consultation with the Pediatrician. However, the patient developed a fever on 12.05.2017 along with signs of intracranial pressure. Thereafter, in consultation with Dr. Chakraborty, the patient was referred to Ludhiana for further management.

Meanwhile, the paediatrician and the first hospital i.e. maternity home argued that there was nothing on record to prove that there was any medical negligence on their part in treating the complainant.

While considering the complaint, the consumer court took note of the medical records along with the reports of the tests conducted at the Ludhiana-based Deep hospital. The Commission noted that during her hospitalization, the patient underwent a series of investigations and CT scan was also conducted twice. She was diagnosed with Dandy Walker Malformation with partial agenesis of the Corpus Callosum with a defect in Occipital Cranium (Congenital Malformation).

The Commission observed that the consultant Radiologist noted in the CT Scan report, "Findings suggestive of Dandy-Walker malformation with partial agenesis of the corpus callosum. Defect in the occipital calvarium in the midline overlying the cystic structure in the posterior fossa. Small pneumocephalus as described, which may be related to a recent intervention or cutaneous fistulous communication of the posterior fossa cyst. Recommend further evaluation with MRI."

At Deep hospital, the patient was operated on 17.05.2017 and the repair of Dura was done. The Commission noted that the patient's father alleged that he was kept in the dark by the treating doctors at the first two hospitals. He alleged that they also did not perform their duty with due diligence and were negligent in treating his daughter.

While considering the question whether the first two hospitals and their doctors were negligent, the Consumer Court noted, "Legally speaking, Medical negligence is a breach of a duty of care by an act of omission or commission by a medical professional of ordinary prudence. Actionable medical negligence is the neglect in exercising a reasonable degree of skill resulting an injury to such person. The standard to be applied for adjudging whether the medical professional charged has been negligent or not, in the performance of his duty, would be that of an ordinary competent person exercising ordinary skill in the profession. The law requires neither the very highest nor a very low degree of care and competence to adjudge whether the medical professional has been negligent in the treatment of the patient."

At this outset, the Commission also referred to the Supreme Court order in the case of Jacob Mathew Vs State of Punjab & Anr., where the Apex Court had observed that "Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do."

Further, the Commission noted that the Indian Medical Council has notified (Professional Conduct, Etiquette and Ethics) Regulations, 2002 (Ethics Regulations) which governs duties and responsibilities of Registered Medical Practitioners (RMP) and lays down the requirement to obtain an informed consent from the patients.

Noting that no informed consent was taken from the patient's father, the Commission observed,

"before performing excision, OP1 and OP2 were required to obtain, consent in writing from complainant No.2, being father and guardian of complainant No.1. The complete indoor patient treatment record in original as produced by OP1 and OP2 shows that there is no such written consent on record of OP2 for performing excision of Cyst. The performa for obtaining consent printed on the last leaf, is lying blank."

The Commission further observed that the counsel for Singla Hospital and its managing director referred to the treatment notes where it was recorded, "11.05.2017. The patient did not get C.T. scan done as patient’s father said that USG does not show any intracranial extension and I am willing for my daughter’s operation at my own risk as I am poor and cannot go for CT scan."

However, as per the commission, these contentions did not hold good "as this endorsement of doctor does not bear signature of the complainant nor a layman like complainant No.2 is expected to be conversant with the medical terminology."

"It is most unlikely that we will make statement to the effect that “……USG does not show any Intracranial extension and I am willing for my daughter’s operation at my own risk…..”. It is not forthcoming that what were the nature and extent of probable risks which were explained to complainant No.2 Perusal of all the notes dated 11.05.2017 appears to have been appended by author in one go only. Even assuming the contents of the aforesaid endorsement to be true, it is evident that at that time, complainant No.2 was under duress and such oral assent recorded by doctor without explaining probable risk cannot be treated as a voluntary and informed consent," noted the consumer court.

Based on the order of the Commission dated 16.07.2020, the Civil Surgeon, Ludhiana constituted a board of doctors consisting of Dr Varun Saggar, Surgeon, Civil Hospital, Ludhiana, Dr. Davinder Kumar, Orthopedics, Civil Hospital, Ludhiana and Dr. Baldeep Singh, Medicine Specialist, Civil Hospital, Ludhiana.

The Managing director of the treating hospital appeared before the board of doctors and provided the relevant record. The Board noted in its report, "After going through the record available, the board is of the opinion that USG showed no intracranial extension, but during surgery at Karan Singla Hospital there was CSF leak. After Surgery at Karan Singla Hospital patient developed fever and patient was referred to and managed at Deep Hospital, Ludhiana. It is pertinent to mention that preoperative C.T. Scan/MRI is the ideal investigation to check for any intracranial extension. However, the patient did not get this investigation done due to financial reasons as per record file."

Referring to the report, the Commission noted, "The expert report reproduced hereinbefore lay emphasis that preoperative CT scan/MRI was the ideal investigation to check for any intracranial extension. Admittedly, no such CT scan/MRI was got conducted by the operating surgeon i.e. OP2. The concerned doctor tried to shrug off its responsibility by coining a story that due to poverty, complainant No.2 had volunteered for excision of his daughter’s cyst without the conduct of such CT scan/MRI. OP2 Doctor could have referred her to Civil Hospital or any charitable hospital where such facility was available free or on subsidized rates. Further the excuse of poverty of complainant No.2 seems to be an afterthought as while at Deep Hospital, he got conducted CT Scan twice on 12.05.2017 (Ex. C28, Ex. C29) as well as on 16.05.2017 (Ex. C30, Ex. C31). Even after the operation, OP1 and OP2 have referred complainant No.1 on 12.05.2017 at 11.00 AM to OP4 at Ludhiana for CT Scan head and for the opinion of Neurosurgeon."

Invoking the principle of res ipsa loquitor, the Commission further noted,

"So it is crystal clear that OP2 was fully aware of the standard procedure that excision of such like cyst should be performed only after obtaining CT scan/MRI reports but he experimented excision casually and negligently which resulted the rupturing of Occipital Cranium and fluid started oozing out through duct. The OP surgeon could not repair such leakage at then and there. It seems that either the OP surgeon was not skilled to deal with such situation or his infrastructure was not well equipped to deal with such emergencies that may occur during the course of surgery. Still the patient was referred on the following day at about 11.00 AM for opinion of Neurosurgeon. The record of Deep Hospital shows that it took about 5 days to control high fever of complainant No.1 and then only on 17.05.2017, the repair could be done. The peculiar facts and circumstances of the case warrant invocation of principle of res ipsa loquitur."

However, the Commission dismissed the complaint against Dr Chakraborty and the maternity home after noting that Dr. Chakraborty, a referring Pediatrician specifically mentioned in the referral slip "look for any intracranial extension". Further, he also gave specific inputs regarding the dosage of medicines and antibiotics to be administered to the patient.

Therefore, the Commission held that Singla Hospital and its surgeon (managing director) had shown negligence in diagnosing, treating, and operating the patient due to which she had to suffer a lot in such a tender age. With this observation, the Commission directed the hospital and its doctor to pay Rs 3 lakh along with 8% interest per annum from the date of complaint till the date of actual payment.

"As a result of above discussion, the complaint is partly allowed with direction to OP1 and OP2 to pay a composite compensation of Rs.3,00,000/- to the complainants within 30 days from the date of receipt of copy of order, failing which OP1 and OP2 shall be held liable to pay interest @8% per annum from the date of complaint till date of actual payment. Out of said compensation Rs.1,00,000/- shall be given to complainant No.2 and remaining Rs.2,00,000/- shall be deposited in the name of minor complainant No.1 Mandeep Kaur in some nationalized bank in the shape of FDR and interest on quarterly rests of the same be given to her father complainant No.2 for providing basic necessities of life to her. However, the complaint as against OP3 to OP5 is hereby dismissed," ordered the Commission.

To read the order, click on the link below:

https://medicaldialogues.in/pdf_upload/dcdrc-rs-3-l-compensation-240321.pdf

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