Lack of Pre-Op Investigations, Informed Consent: NCDRC upholds Rs 50 lakh compensation on Fortis Hospital Neurosurgeons

New Delhi: The National Consumer Disputes Redressal Commission (NCDRC) recently upheld Rs 50 lakh compensation slapped against Fortis Hospital doctors for medical negligence while treating a patient suffering from 'Mobile Atlanto Axial Dislocation' or AAD.

However, it exonerated the hospital and its Medical Superintendent after noting that there was no evidence to establish even vicarious liability on the hospital.

The history of the case goes back to 2011 when the complainant's son, who was suffering from AAD due to childhood injury, got admitted to Fortis Escort Hospital in Jaipur for surgery.

AAD is related to injury to the spinal cord and the cervical area which leads to progressive neurological deterioration including high cervical myelopathy (pressure on the spinal cord) with symptoms of weakness, spasticity (stiffness), wasting (atrophy of muscles) and respiratory compromise.

Since investigations were already done in September 2011, the surgery was conducted at Fortis Hospital on 24.11.2011 without conducting any further investigations. Two days later, the patient was discharged and subsequently, the patient expired during hospitalisation at Mittal Hospital on 01.05.2012 due to cardiac arrest. 

The hospital had also issued a certificate earlier on 08.04.2012 stating that the patient had been brought on 26.12.2011 in a Critical Care Ambulance on ventilator and that he had continued to be on the ventilator since then as he could not be weaned off the ventilator since his left lung was collapsed with quadriplegia.

When the complainants approached the State Commission, Rajasthan seeking compensation, the State Consumer Court opined that due to negligence of the treating doctors and negligence caused during the operation, the patient's health deteriorated day by day and finally the patient died on 01.05.2012. Accordingly, it had directed the Fortis Hospital and its treating doctors to pay Rs 50 lakh in compensation to the complainants.

Challenging the State Commission's order, the hospital and the doctors filed an appeal before the Apex Consumer Court i.e. NCDRC. They argued that the patient was diagnosed with cranio vertebral junction (CVJ) and was advised dynamic (flexion, extension, neutral) X Ray of the CVJ. On 14.09.2011 the earlier test reports of the Department of Neurosurgery SMS Medical College were reviewed. A line of treatment for the disease, including need for surgery and attendant risks were informed and immediate surgery advised. Consequently, the patient was admitted to the hospital, where two surgeries were done on 23/24.11.2011. Thereafter, he was discharged against medical advice and was shifted to Alwar in a critical condition while on ventilator considering the high cost of medicare in the treating hospital.

As per the hospital and the doctors, AAD was a serious disease caused due to fracture of the odontoid process of the C2 vertebral body due to fall from height of about 20 feet. Any sudden movement of the neck forward would result in quadriplegia or weakness in all four limbs and pentaplagoa (weakness in all four limbs as well as compromised respiration).

The hospital and its doctors claimed that the patient had not been provided adequate treatment for nearly 15 years and therefore suffered neurological deterioration. They also submitted that the informed consent for the surgery had been obtained from the patient and attendants and was done in the supervision of the the treating doctors and a team of doctors as per prescribed medical techniques and procedures.

Further, they argued that the complainant had not specifically proven which procedure or treatment was done incorrectly and that the alleged weakness and condition post-surgery was a natural situation in such a complicated surgery and could not be attributed to any incorrect surgery or failure, especially when the patient survived for months after the surgery. It was argued that proper neurological postsurgery care was no provided which was very important.

Appealing before NCDRC bench, the hospital and its doctors argued that as per the settled principles of law, in the case of medical negligence, it was necessary for the complainant to establish his case with cogent evidence. They relied on the Supreme Court order in the case of Jacob Mathew Vs State of Punjab & Anr., and Martin F D’Souza vs Mohammad Ishfaq and other legal precedence.

Relying on these judgments, they also argued that no guarantee was given by any doctor or surgeon that the patient would be cured and that every death in the institutionalised environment of the hospital did not necessarily amount to medical negligence on a hypothetical assumption of lack of due medical care.

On the other hand, the complainants argued that before the surgery, the patient had weakness in his limbs for two months including numbness in the upper limbs hands but was conscious and following verbal commands. The power in his four limbs was 4/5 grip and his chest was clear. Therefore, his condition was normal and he was breathing normally.

The complainants argued that there was no case of urgency to operate the patient. However, the doctors performed the surgery on the upper spine of the patient in undue haste and without proper pre-operative essential investigations because of greed of money.

Further, it was alleged that apart from some lab investigations of the blood, no fresh MRI, CT scan or X-ray of cervical spine or other investigations such as myelogram was conducted to visualize the state of the spinal cord or any malformation or syringomyelia. CT guided needle aspiration biopsy or pre-operative respiratory tissue culture was done. It was claimed that the hospital and the doctors acted negligently on the presumptive diagnosis tha the patient was suffering from mobile AAD based on the old MRI and CT scan reports of SMS Hospital dated 13.09.2011.

Referring to the discharge summary and CT scan report dated 30.11.2011, the complainants argued that following the trans oral decompression surgery, bony pieces (osteophytes) at C3-C4 level were noted in the MRI of cervical spine dated 05.12.2011 which confirmed the presence of bony components in the spinal canal.

The bony pieces left in the canal were compressing the cord since spinal cord had thinned at that level. This was a post operation development due to negligence of the treating doctors and the hospital since they had not been seen in earlier CT scan and MRI done at SMS Hospital, alleged the complainant. Reliance was placed on Supreme Court judgments in the case of Dr Balaram Prasad vs Dr Kunal and others, Magesh vs Dr Mehta etc. It was submitted that a civil liability case is governed by the principle of res ipsa loquitur. Therefore, once the initial burden had been discharged by making out a case of negligence the onus was on the hospital and doctors to establish that there was no lack of care or diligence.

After considering the arguments by both the sides, the NCDRC bench noted that in matters where an allegation of medical negligence is made against a doctor or hospital (or both), it is the settled proposition of law that the definition of ‘service’ under Section 2(1)(d) of the Act has to be understood on broad parameters and it cannot exclude service rendered by a medical practitioner. It has also been well laid down that the jurisprudential concept of negligence differs in civil and criminal law, the Commission noted.

Referring to the Supreme Court order in the case of Jacob Mathew, the NCDRC bench noted, "The essential components of negligence, as recognized, are three: existence of a duty to take care, which is owed by the defendant to the complainant; failure to attain that standard of care, thereby committing a breach of such duty; and “resulting damage”, which is both casually connected with such breach and has been suffered by the complainant. If these three ingredients are made out on the basis of evidence, the defendant should be held liable in negligence."

The top consumer court also referred to Supreme Court orders in the case of V. Kishan Rao Vs. Nikhil Super Speciality Hospital & Anr.,Indian Medical Association vs V.P. Shantha & Ors., and Dr. J.J. Merchant & Ors vs Shrinath Chaturvedi, and observed, "From the record it is apparent that the appellant hospital and the appellant doctors had not prescribed or conducted pre-surgery investigations as alleged by the respondent. Surgical procedures were embarked upon essentially on the basis of tests done at SMS, Hospital, Jaipur without evaluation of the patient through tests at the appellant hospital except some pre-surgery test conducted on admission of the patient in the appellant hospital. No evidence has been brought on record by the appellants to counter the allegations in this regard by the respondent."

Perusing the material on record, the Commission also observed that prior consent was only obtained for the surgical procedure relating to internal fixation of posterior arches on 23/24.11.2011 and there was no documents to indicate that prior consent for any other procedure had been obtained. 

"The appellants were mandated to obtain prior informed consent for the second operation for Trans Oral Decompression on 28/29.11.2011. No documentary evidence is available for the same. Thus, as per the principles laid down in Jacob Matthew (supra), it is evident that the appellant hospital and the appellant doctors who owed the respondent’s son a duty of care in respect of the medical procedures/ operations for AAD breached that standard of care. The post operative MRI reports also indicate that there was no material change in the patient’s condition," observed the consumer court.

Accordingly, agreeing with the Ste Commission's order, the NCDRC bench noted, "It is evident from the above that the appellant doctors failed to establish why the surgeries were performed without the requisite pre-operation investigations and instead relied upon investigations conducted elsewhere earlier and why tracheostomy was undertaken without prior consent. Medical negligence on part of the appellant doctors (Appellants 2 and 3) is therefore clearly established in this case although the State Commission, on the basis of the doctrine of res ipsa , held the appellants to be jointly and severally held liable to pay compensation to the respondent. As regards the quantum of compensation awarded, a lump sum award in the case of death appears reasonable as it covers both the costs and compensation."

Therefore, the Commission held that the State Consumer Court's order did not suffer from any legal infirmity and did not warrant interference. However, the Commission opined that the liability of the appellant hospital had not been established and therefore, the order fastening liability on the hospital was not established.

"The case of the respondent is that the doctors rushed the deceased patient into surgery without adhering to the established protocol of pre-operative surgeries and thereafter conducted surgical interventions without following the standard operating procedure of prior informed consent being obtained. There is no specific allegation of negligence on part of the hospital (appellant no. 1) to establish even vicarious liability or on appellant no. 2 for any failure to provide medical services," observed the NCDRC bench while exonering the hospital and its Medical Superintendent.

To view the order, click on the link below:

https://medicaldialogues.in/pdf_upload/fortis-hospital-ncdrc-266541.pdf

Also Read: HC Sets Aside NCDRC Order Slapping Rs 93 Lakh Compensation on Doctor