JIPMER Director, Gynaecologist held liable for negligence in laparoscopy surgery, told to pay Rs 23 lakh compensation

Establishing JIPMER's culpability in the case of medical negligence, the State Consumer Disputes Redressal Commission has directed the institution and the Gynaecologist to pay “jointly and severally a sum of Rs 22,94,986 lakh towards compensation with interest at the rate of 9% from the date of complaint (February 17, 2017) till the realisation” to the parents of the deceased patient.

The Commission, headed by Justice R. Pongiappan, president and S. Sundaravadivelu and S. Oumasanguery, members, in its 69-page order, also stipulated the hospital and the gynaecologist to pay a sum of Rs 5,000 towards costs.

The case concerns a young woman who suddenly developed severe abdominal pain and was advised to consult a tertiary center. Therefore, she was brought to JIPMER on December 2, 2015 with a four-month history of Irritable Bowel Syndrome and a past history of appendectomy.

The Gynaecologist examined the patient and advised some clinical tests such as blood investigation X-Ray and scan. On December 23, 2015 the patient went to the hospital on a follow-up visit where she was told about an ovarian cyst that had to be removed by a simple surgery.

On December 28, the surgery was performed. However, the parent (C.Parthiban and S. Jayanthi) of the patient later came to know that laparoscopic procedure was conducted on their daughter. On next day of the surgery, the patient was discharged from the hospital allegedly without being prescribed any medicines. However, she soon returned to the hospital with complaints of severe stomach ache, vomiting and loose motion.

It was alleged that no tests were conducted and no care was taken. On January 20, tests found that she had Peritonitis as a complication of the surgery. The patient was admitted and an emergency surgery was performed. Unfortunately, on January 22, the patient died.

Aggrieved, the parents of the deceased moved the State Commission alleging that their daughter died due to the injury to the bowel caused in the course of the laparoscopic surgery. The bowel injury caused bacterial infection leading to septicaemia which resulted in multi organ dysfunction and death. Had the bacterial infection been timely detected it would not have led to septicemia which eventually caused the death of the patient.

The counsel for the complainant submitted;

"Duty of care of a doctor starts from the time he / she accepts the patient for treatment. The patient had undergone appendectomy operation when she was 9 years of age. This was recorded by the doctor in the case record. In cases of earlier surgery there is every possibility of development of adhesions increasing the chances of injury to other organs in the course of surgery. But the doctor ignored the past history and conducted herself negligently and callously. Reasonable skill expected of her was not exhibited while conducting the Laparoscopy as a resu, The surgery was botched up and caecum was injured leading to peritonitis , septicemia and ultimately death. The doctor has made candid admissions in her deposition. The complaint is not hit by non joinder of necessary parties. Ecg machine was not working and variation in blood count could be due to some errors in the machine. Due post operative care was not given JIPMER hospital is also vicariously liable for the negligence of the doctor.Future prospects of the patient at the time of death should also be taken into account for awarding compensation."

However, JIPMER dismissed all allegations as “conjectures and misrepresentations” and contended that all necessary investigations and requisite surgery were conducted by a team with experts.

The counsel for the hospital and the doctor argued that;

"The complainants had fraudulently mentioned the monthly income of the patient as Rs.4000 while taking treatment whereas while claiming compensation the income is stated to be RS.20338 per month. The complaint is not maintainable against JIPMER being an institution of national importance providing free treatment to the patient."

The counsel further submitted that;

"The professor had advised the patient to take the opinion of doctors in surgery so as to ascertain the state of affectation. The victim girl without complying with the advice and direction had straight away come to the doctor for treatment. During laparatomy second surgery it was found that there was perforation on caecum and the damaged portion was removed and necessary procedure was done to set it right. Caecum is on the upper part about 5 to 7 cm above the ovaries and therefore there is no possibility not probability of caecum being injured while performing the laparoscopic surgery. While doing cauterisation using guarded bipolar diathermy probe at the ovaries there is no possibility of causing injury to the caecum and the bipolar diathermy probe is found to be effective in localising the source of bleeding. The patient left the JIPMER hospital on 28.1.2015 against the advice of the doctors. The allegation that JIPMER hospital is lacking in infrastructure and the instruments used in the surgery were not sterilized is denied."

"The complainants had insisted on performing laparoscopic cystectomy with a false sense of modesty lest the scars of open surgery should remain on their unmarried daughter and had chosen to do laparoscopic cystectomy," it added.

After establishing, on the basis of past rulings of the Supreme Court and the National Consumer Disputes Redressal Commission, that JIPMER was liable for prosecution under the Consumer Protection Act as it collected fees according to income of patients even though it did not take any fee from the said patient, the Commission probed the negligence charges.

After taking into account the detailed submissions of both sides, perusal of pertinent medical literature, past court rulings and operation notes pertaining to the laparoscopic cystectomy on December 28, 2015 and second surgery laparatomy done on January 21, 2016, the Commission concluded that the opposite parties have not been able to explain the reason for the injury in caecum satisfactorily.

Referring to medical literature(s), the Commission further concluded that the argument of the Opposite parties (the hospital and the doctor) that there is no possibility of caecum being injured due to laparoscopic surgery was not acceptable. It noted;

"The Opposite parties have not been able to explain the reason for the injury in caecum satisfactorily. Their defence that IBS caused the injury is found incorrect. On the other hand their defence that laparoscopy could not have caused caecal injury is also incorrect."

"Therefore this commission is compelled to deduce, especially in the absence of any other plausible explanation from the Opposite parties that faulty procedure adopted during the Laparoscopy surgery on the patient on 28.12.2015 has caused perforation of the caecum which led to septicemia and eventually death. The Opposite party 1(gynaecologist) has not exhibited the required reasonable skill and care in performing the procedure."

Refusing to accept the claim of the opposite parties that IBS caused the perforation in the caecum or that there is no possibility of caecum being injured due to laparoscopic surgery, the Commission noted;

"From the medical literature referred ('Fertility and sterility 'titled "Avoiding complications of laparoscopic surgery " by Ralph philosophe) it is evident that timely suspicion and diagnosis is crucial for avoiding damage due to bowel perforations which is a rare but significant complication of gynaecologic laparoscopic surgery." In the case on hand this timely detection of the caecal injury was not done inspite of the patient being a high risk patient in view of the previous history of appendectomy."

The Commission categorically concluded that;

"The gynaecologist was negligent and did not exercise the required skill as expected of a reasonable professional in conducting the laparoscopy surgery."

Subsequently, the Commission granted a reduced compensation — a 25% deduction of Rs 7.64 lakh from Rs 30 lakh — after observing that the patient and the complainants had contributed to the damage by non-complying with some instructions of the opposite parties (hospital and the gynaecologist) and ordered;

"The opposite parties 1 (Gynaecologist) and 2 (JIPMER, Director) are hereby directed to pay jointly and severally a sum of Rs. Rs.22,94,986/- (Rupees twenty two lakhs ninety four thousand nine hundred and eighty six only) towards compensation with interest at the rate of 9% from the date of complaint i.e. 17.02.2017 till the realization."

To view the original order, click on the link below:

https://indiankanoon.org/doc/78608306/