High-risk Surgery without ICU: NCDRC orders Rs 20 lakh Compensation on hospital, doctors

New Delhi: The National Consumer Disputes Redressal Commission (NCDRC) recently upheld the order of Maharashtra State Commission, which had directed a private hospital in Akola and its doctors to pay Rs 20 lakh compensation for deficiency in service while treating a patient suffering from kidney dysfunction.

The concerned patient had only one kidney and she was suffering from urinary tract infection as well. Even though the hospital and the doctors claimed that there was no negligence on their part, the Apex Consumer Court opined that they should not have operated on the patient even though basic facilities like intensive care unit were not available in the hospital.

Further, the Commission also observed that there was deficiency with respect of post-operative care as well as there was no infection disease specialist available during the Post operative care as per the guidelines.

The Commission further opined that "Further, it is admitted that there was no ICU facility and as the surgery was high risk surgery, the appellant ought not to have proceeded to conduct the operation ignoring the risk involved."

The case concerns the complainant's daughter, who was suffering from non functioning of her left side kidney since birth. However, she had been leading a normal life. 

Back in 2010 when she was suffering from fever, she approached a doctor at Akola. Consequently, she underwent several tests including sonography and after considering the test reports, the doctor advised her to consult Dr. Mulawkar. After examining the patient and considering the reports, the doctor informed that the right side kidney of the patient was affected due to problem of urinary bladder.

Accordingly, he prescribed some medicines and the patient remained hospitalized for 02 days. However, she did not get better and again approached Dr. Mulawkar. Pathological tests were conducted and it was found that the patient's serum creatinine was slightly more than normal limit. Taking note of this, Dr. Mulawkar advised her to undergo minor operation of the right side kidney called as standing of the kidney.

Allegedly, the doctor had assured that the surgery was risk free and the patient would be discharged soon. Accordingly, the operation was conducted successfully. After the surgery, the patient was taken to post-operation care room to be kept under observation.

It was alleged by the complainant that there was deficiency in service in providing post-operative care as in the post-operative care room, there was allegedly no competent doctor keeping watch on the physical condition of the patient. Further, nobody came to record her blood pressure, pulse rate, temperature after every hour and the patient was allegedly not placed on any monitoring machine after operation and she was not breathing normally.

The brother of the patient, who is a Unani practitioner, checked the pulse of the patient and found that the pulse rate was not normal. When the treating doctors were contacted, they did not come to the post-operative room to check the condition of the patient. 

The complainant alleged that Dr. Mulawkar was busy in conducting other operations and did not come to see the patient. Consequently, the patient's health condition started deteriorating and by the evening her pulse rate had become very alarming. The patient's brother called another doctor, Dr. Agrawal, who examined the patient and found that her blood pressure was not stable. ECG was conducted and it was found that the pulse rate was very high. Considering the deteriorating condition of the patient, the concerned doctor called another expert Dr. Chandak in the hospital. Allegedly, at this point of time also, Dr. Mulawkar, the treating doctor and the anesthetist Dr Sonone did not come out of the operation theatre to see the deteriorating condition of the patient.

Following this, Dr. Agrawal advised the complainant to take the patient to Shyamdeep Hospital for C.T.Scan. Accordingly, the patient was taken to the hospital and was admitted in a serious condition. Despite the treatment in Shamdeep Hospital and Critical Care Centre, Akola, the patient died.

The complainant alleged that during the operation, the blood pressure of the patient was not normal as per medical standard and as per the proper antibiotics were not given either during operation or after operation to prevent septicaemia. Due to this, septicaemia developed within few hours after the surgery.

Referring to the fact how the record revealed that the blood pressure and pulse rate of the patient continued to fluctuate, it was submitted that the anesthetist was equally responsible to monitor the vital parameters of the patient before operation, during operation and even after the operation. Therefore, the complainant filed the complaint before the State Commission alleging medical negligence on the part of the hospital and the doctors and prayed for a compensation of Rs 25 lakh.

On the other hand, the hospital and the doctors contested the complaint and stated that the patient was obese and had a problem of chronic urinary tract infection, which is serious in case of patient as she had only one functional kidney. It was further submitted that the patient was treated by a well-known physician Dr. Agrawal but the patient was not responding to the treatment and due to acute urinary tract infection, she was suffering from fever. Therefore, she was referred to Dr. Mulawkar. 

They claimed that all the investigations were carried out that it was revealed that the patient had a severe kidney infection and it was a probable case of Pyelonephritis. Further it was stated that the patient was also suffering from thyroid disorder and obesity. 

The counsel for the hospital and doctors further submitted that the anesthetist performed thorough preoperative assessment of the patient as per the standard protocols. He further submitted that the recovery room was fully equiped and the patient was continuously monitored in the recovery room. When the patient developed rigours, the anesthetist had immediately attended the patient, temperature and pulse rate were recorded and necessary medications were also administered.

Further, the counsel referred to the medical records and claimed that the patient was continuously monitored after the operation. It was submitted that the anesthetist Dr Sonone and other associate doctors were also looking after the patient and all the best possible efforts were taken to save the patient.

The Apex Consumer Court observed that the main point of consideration was whether there was medical negligence on the part of the appellants during the post operative care or not. At this outset, the NCDRC bench referred to the copy of guidelines on Urological Infections relief upon by the appellants which was also quoted by the State Commission.

"The patient had only one kidney and severe urinary tract infection. It is clear that there was no Intensive care or infection disease specialist available during the post operative care as per the guidelines. Further, it is admitted that there was no ICU facility and as the surgery was high risk surgery, the appellant ought not to have proceeded to conduct the operation ignoring the risk involved," noted the Apex Consumer Court.

It also referred to the Supreme Court order in the case of Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee and Ors. where the top court bench held that "In our opinion, if hospitals knowingly fail to provide some amenities that are fundamental for the patients, it would certainly amount to medical malpractice. In a hospital, conducting operation and that too, especially on high risk patient, the admitted lack of ICU is a fundamental amenity in medical care and lack of the same amounts to deficiency in service."

The NCDRC bench also referred to the consent letter, which did not reflect that the surgery involved high risk and was complicated and noted,

"As regards the point that the surgery involves high risk and is complicated one, it is expected from the appellants that they are aware of the risk involved in the said surgery and were supposed to take abundant care and precaution not only during operation but also after the operation. But from a perusal of the consent letter, it does not reflect that the surgery involved high risk and is complicated one but it only gave permission to conduct the operation."

"Therefore, it cannot be inferred from the consent letter that the information of surgery being high risk and complicated one is given to the complainant or his son. The photographs clearly shows that the patient was taken to post – operative care room at about 10.57 but the anesthesia notes reflects that the pulse and blood pressure were recorded in the operation theatre at 11.10 and 11.20. It appears that the notes have not been prepared at the time of operation and are an afterthought," it further observed.

Regarding the issue of the patient developing septicemia, the Commission noted that the doctors and the hospital failed to establish that the patient was suffering from septicemia before conducting the operation and it came to the knowledge of the complainant through the death certificate.

"Even if it is presumed that the patient was suffering from Septicemia, the appellants ought not to conduct the operation even when the basic facilities like intensive care unit were not available in the hospital. The appellants have also brought no evidence on record to show that either they prescribed or ensured that all the necessary pre-operative tests were done on the high risk patient prior to surgery to see that the patient was fit for surgery," it observed.

At this outset, the Apex Consumer Court also relied on the Enquiry Committee Report sent by the Government Medical College and Superspeciality Hospital, Nagpur to the Police Station, Akola. The report stated, "The details of the patients pre operative checkup reports have not been made available in the papers received so it is not possible to given an opinion about whether the condition of patient was suitable for surgery. The surgeon and anaesthetist examine the patient and take a decision as to whether the condition of the patient is suitable for surgery or not. This is clearly lack of due care and amounts to deficiency in service."

Regarding the issue of post-operative care, the NCDRC bench noted,

"As regards the point that no competent doctor kept watch in the post operative care room is concerned, the appellants filed the documents at the belated stage showing that the patient was attended from time to time. Had the documents been available with the appellants, the said documents should have filed at the appropriate time before the State Commission. It appears that these documents are afterthought. No concrete evidence has been produced by the appellants to prove that the appellants attended the patient for a long period of 4 ½ hours after her operation. Moreover, at one place the appellants averred that Dr. Sonone and Dr. Mulawkar attended the patient at 2.30 while at another place, it was mentioned that Assistant Suruchi attended the patient at 2.30 p.m. As the documents are contradictory to each other, the documents do not appear to be authentic. It is apparent that the patient was not attended from 2.30 p.m. to 7.00 p.m."

Therefore, the NCDRC bench upheld the Maharashtra State Commission's order of directing the doctors and the hospital to pay jointly and severally a compensation of Rs. 20,00,000 with interest at the rate of 9% p.a. from the date of complaint i.e. from 05.01.2012.

"In view of the foregoing, we find that the appellants have not been able to prove that there was proper care and attention during the post operative period and the findings of the State Commission in this case suffers from no illegality or infirmity warranting any interference," noted the NCDRC bench.

To view the order, click on the link below:

https://medicaldialogues.in/pdf_upload/ncdrc-2-226547.pdf

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