Gross Medical Negligence: Breach Candy Hospital, Doctor directed to pay Rs 7.5 lakh compensation

Mumbai: Setting aside an order passed by the Maharashtra State Consumer Forum, the National Consumer Disputes Redressal Commission (NCDRC) has held Breach Candy Hospital Trust liable of gross medical negligence; and directed it to pay a compensation of Rs 7.5 lakh after two fingers of an elderly patient were amputated due to gangrene allegedly after a botched-up surgery over 15 years ago.

The genesis of the case goes back to September 18, 2005, when a 74-year-old was admitted to the hospital for a coronary artery bypass graft, and two days later he underwent the surgery. On October 1, 2005, re-suturing was required to be done because blood was found to be oozing from his chest.

After the surgery, he was shifted to an ICU, where the patient's wife found that his left palm and fingers were burnt. The doctor who examined him stated that his hand probably got burnt during re-suturing process. Thereafter, the burn injuries were treated even after he was discharged from the hospital, and eventually, he was operated upon. However, it was found that his middle and little fingers developed  gangrene and had to be amputated  

Thereafter, the patient moved the State Commission alleging gross medical negligence on part of the hospital, which resulted in the burning of his left hand and the resultant amputation of two fingers; seeking compensation of Rs 50 lakh.

In his submission, the complainant prayed that "Being a diamond broker and expert in an assortment of diamonds, the absence of fingers was not only a loss of body part but would also hamper his income earning capacity.." The patient alleged that he was informed by the operating doctor that the hand must have been got burnt due to the heater placed in the operation theatre. 

Denying the allegations, the counsel submitted that the hospital was equipped with warm air blowers, which automatically cut off at 420 C. Moreover, no heaters were used in the operation theatre or in the ICU in the Hospital. "It could not be the case that the hand of the complainant accidentally touched the heater, resulting in the burning of his hand during the re-suturing process," it contended.

Further, the hospital stated that the patient was also having a history of long-standing diabetes, which finally led to Tropical Diabetic Hand Syndrome (TDHS.) Patients with diabetes are immunologically impaired to combat infections, adding that "The symptoms of heater burn and TDHS are similar and could be distinguished only by histopathological analysis and not clinically."

Besides, Expert opinion was also filed to show that TDSH results in burning of hand lead to gangrene and therefore, second grafting was suggested.

The State Commission observed the same and finally on March 28, 2012, dismissed the complaint observing that the treating doctors had exercised due care and caution in operating and treating the complainant.

Aggrieved by the decision, the complainant moved NCDRC for a redressal, wherein, it was submitted that the State Commission ignored the vital fact that there was never any treatment for diabetes but always for burns and TDHS was conjured for the first time in the written statement and there was nothing to support the same.

Deliberating the case, a two-member NCDRC bench, comprising presiding member Prem Narain and member C Vishwanath observed that;

"When there were no chances of any burn caused due to heaters in the OT/ICU or of any cautery burns as alleged by the Complainant, one does not understand as to why blisters on the hand were not taken seriously but only treated normally as burns. Consultation with Diabetologist and Dermatologist ought to have been done in the first instance."

"Never the case was treated as TDHS. Only in the affidavit, 2 years after treating the Complainant, 'Wisdom' and 'Gyan' appears in the affidavit filed by Dr. ***** Kaushik where burns and TDHS are explained. Record only shows burn injuries in OT during bypass surgery. If it is a case of other than burns and was TDHS, attempt should have been made to diagnose the problem," the Commission added.

It further stated that treating doctors ought to have consulted the diabetologist and dermatologist at the earliest and if proper diagnosis and treatment had started early, the complainant could, perhaps, have been saved from permanent injury and damage.

Subsequently, the court denied to accept the hospital's stand and held it liable for gross medical negligence. The court noted;

"A detailed review of the entire record reveals that it is a case of gross medical negligence, involving loss of body parts, business and mental agony to the Complainant who is a senior citizen aged 74 years, during the course of treatment given in the Respondent Hospital. The theory of TDHS has been floated only as a cover-up to their medical negligence, resulting in permanent injury to the patient. A host of expert opinions have been padded to lend 'credibility.' If only proper diagnosis and treatment would have started early, the Complainant could perhaps have been saved from permanent injury and damage."

"In view of the above, after carefully hearing the learned Counsel for the Parties, thoroughly going through the record and having given our thoughtful consideration, we set aside the order of the State Commission and direct the Respondents/Opposite Parties to pay a compensation of Rs.7.5 lakhs to the Complainant within 30 days from the date of this order, failing which the amount shall carry interest of 9% per annum till full payment. In addition, cost of Rs.20,000/- towards litigation expenses are awarded," the court added.

Attached is the judgement below

https://indiankanoon.org/doc/43442908/