Mere Error in Judgment not equivalent to Gross Negligence: Consumer forum Gives Clean chit to Doctor after Ten Years

The order comes after a 2009 complaint filed by a man, who had held the doctor and the administration of Speciality Hospital, Thana, Kannur accountable for his mother's death back in 2008. The petitioner had filed the complaint under Sec.12 of the Consumer Protection Act 1986 seeking compensation of Rs.3,00,000/- from the doctor and the hospital for the alleged deficiency in service and unfair trade practice adopted by them.

The case goes back to April 4 2007, when the complainant's mother was brought to Speciality Hospital, Thana, Kannur after a fall and with complaints of vomiting and speechlessness. Stating that it had been an incident of stroke, the doctor on duty had prescribed some medicines and had left the patient in a casual manner, alleged the complainant adding that the doctor hadn't given any further direction or instruction to him and after giving those medicines to the patient, her condition deteriorated.

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On the next day, the condition had become critical and the doctor had advised scanning of the head of the patient, but even after receiving the scan report at 12.30 noon of the same day, the doctor examined the report only in the evening and referred to Neurologist for further treatment who came at night and after examining the report said there had been hemorrhage and bleeding. He added that the present damage to the head had been different from the earlier damage and prescribed some medicines to the patient.

The petitioner further submitted that when he had asked the neurologist as to why no scanning had been done immediately from the hospital as it had been a suspected case of haemorrhage, then the doctor had told that only just when he was told about the case and he had changed some unwanted medicine.

Following this, the patient had been given medicines, liquid food and water through a tube inserted inside the nose. The treating doctor then informed the petitioner that whatever possible had been done and not much could be expected, therefore it would be better to take her home and continue treatment at home as directed. At the time of discharge the patient could only open her eyes and there had been no other movement and she had been made to lie on a water bed. Thereafter when the condition of patient deteriorated she had been again taken to the Specialty hospital on 9/12/07 and 29/12/07 and discharged after giving I.V fluid.

The family further alleged that wanting to take the patient to another hospital, they asked the hospital authorities to provide a written case sheet of the patient, which was denied stating that those documents had to be preserved there in the hospital and it would not be given to anyone except on the order of a court. The petitioner had further stated that such an act on the part of the chief administrative officer of the Speciality Hospital had been unfair trade practice and insufficient service.

Following this, the patient was then taken to two different hospitals and was treated for over 2 months. Later, the patient expired.

Claiming that if the diagnosis had been done properly in the initial stage and treatment had been given accordingly, the patient could have survived and her life could have been prolonged; the Complainant appealed before before the Forum stating that the Speciality Hospital had treated his mother in a most negligent manner and had administered wrong medicine in the initial stage, giving anti effect to the internal part of the brain and ultimately causing her death.

It was further alleged that it had been a well-known and normal practice to refer to a CT scan when a patient had been brought before the hospital suspecting brain stroke. As not all strokes are caused by blood clots, it would be necessary to conduct a CT scan to diagnose properly and understand the real cause of stroke. However, unfortunately, the doctor had treated the patient and had administered aspisol tablets, a medicine containing aspirin contents, before referring for the CT scanning of the patient brain. It should be well known to the medical practitioner that taking aspirin should not be advised during a stroke, because not all strokes would be caused by blood clots. In this way, giving aspirin tablets to the patient, at this point, could potentially had made those bleeding strokes more severe, the plea contended.

The doctor and the hospital in their defense stated that there had been no negligence or deficiency on their part and whatever procedure had been done upon her, had been done in accordance with established medical practice and in the most caring way.

The doctor had stated before the Forum that he had been treating the patient from 2005 when she was brought to hospitalswith left-sided hemiplegia and right basal ganglia infaret. He had advised for a CT scan showing right basal ganglia infaret, normal pressure hydrocephalus and aca-aneurism. She recovered from the illness very well and she was discharged with left hemiparesis. At the time of discharge the patient had been asked to continue aspirin 75 mg+clopidogrel 75mg and Tab citicholine 599mg daily. He had attended to the patient again for various complaints and he had treated her accordingly. He further informed the Forum that the patients relatives were satisfied with his treatment.

On 4/9/07 at 7.40 pm, the patient had been brought to the Speciality hospital with complaints of giddiness followed by fall and altered sensorium. The patient was immediately examined by causality medical, officer, at the time of examination the patient was conscious, there was an abnormal gaze towards the right side, and aphasia. Her vital signs were normal and other systems were normal. Although the doctor had not been available at the hospital at that time, he came specifically to attend the patient and upon examining the patient he found the same clinical symptoms and signs, with the previous history of infarct with left hemiplegia in mind. A provisional diagnosis of Right MCA Territory recurrent stroke had also been made. As the patient had been taking aspirin she had been asked to continue the same while he had prescribed Inj. Citicholline, Rabiprazole and intravenous fluids in addition. As the patient had taken aspirin in the morning, it had not been administered on that day. The patient was monitored in the medical intensive care unit and her vital parameters were stable, the counsel appearing for the doctor submitted before the bench.

Later, he had reviewed the patient and found to have some worsening of neurological parameters. She was drowsy with left-sided paucity of movements. With the previous history of Right MCA stroke, the possibility of ischaemic Restroke was clinically considered. Following this, the doctor had explained her condition to the relatives.

The doctor further informed the Forum that just before going for a CT scan, the patient had been administered aspirin and clopidogrel which she had been taking from 2005 onwards. The CT report showed subarachnoid hemorrhage. So the antiplatelets were withheld, anti edema measures were started. The patient had been shown to the consultant neurologist and his opinion had been taken. The patient had partial recovery, all supportive care had been given, and considering her advanced age and extensive subarachnoid hemorrhage she had survived and had been discharged. At the time of discharge, she had been conscious, able to sit up, and had been taking oral feeds and communicating. Only the best efforts of the doctor and the hospital management had saved the patient and this had been well appreciated by the complainant at the time of discharge. The patient had been again shown to the doctor twice for minor ailments associated with her pre-existing diseases.

The doctor further contended that the averment that the normal practice would be to refer the patients with stroke CT scan had been scientifically improper and it immediately would depend on various factors. Mentioning that 85% of the stroke had been ischemic and only 15% hemorrhagic, he argued that the chance of recurrent strokes had been there even if the patient would be on antiplatelet medications. In ischaemic strokes, an early CT scan would not reveal any abnormality, only delayed CT scan or diffuse weighted MRI would reveal the radiological findings of stroke.

The doctor added that patient had already been on anti-platelet medications which would take a minimum of seven days to wear off its effect after stopping the medications, the continuation of medicine for another day would not going make any immediate difference. He further mentioned that the present line of treatment had been adopted by him in good faith and in the patient's interest. Gradual worsening of the patient had been due to the natural course of the illness and not due to the administered single dose of aspirin and clopidogrel medication.

It was argued that there had been no delay in evaluating the CT report. The patient had died almost 1 year after the prescribed incident which had been a natural happening due to her advanced age and disease process.

Regarding the matter, the Forum had taken an expert opinion of Dr.Viswanathan.P, Civil Surgeon, MD (Physician) District Hospital Kannur. He had opined that giving the patient aspirol 150mg clavix 75 mg and also strocit IV infusion before getting the scan report had been unscientific. He had further stated that Antiplatelet drugs like aspirol 150 and clavix 75mg had been used for Istemia stroke. This had been a case of bleeding hemorrhage, strocit IV had also not been required for hemorrhage. He further had opined that these antiplatelets would worsen the condition of bleeding.

The counsel for the Opposite Parties (Doctor and the hospital) had vehemently cross-examined Dr.Viswanathan.P. During that, Dr. Viswanathan P had further stated that "I have not stated that there was negligence on the part of 2 OP in treating the nd patient. The advice of medicines before CT scan is unscientific. I cannot say that those two administered drugs caused the death of the patient." He further stated before the Forum that after getting the CT scan report, the doctor had stopped the antiplatelet and this had been a correct approach by the doctor.

Taking all these factors into consideration, the bench noted that the doctor had attended to the patient immediately and he had the due experience to deal with the patient before. It had been also evident that after getting the CT scan report, he had stopped the antiplatelet drugs, which had been a proper line of treatment as opined by the expert opinion of Dr. Viswanathan. P.

Finally, the Forum had observed:

"For the sake of argument , even if it is assumed that there was delay committed by 2^nd OP doctor for taking CT scan and administered single dose of aspirin and clopidogrel, cannot be considered as gross negligence" on his part. At the most, it could be treated an error in the judgment by the medical professional. It is an undisputed fact he is a well-experienced medical practitioner having qualification MBBS, MD General Medicine and having 20 years experience to treat patients. It is also admitted by complainant that from 2005 onwards his mother was under the treatment of 2 OP. Thus on the basis of his experience, and as his patient, 2^nd OP provided the necessary treatment. It is well settled that mere error in judgment will not amount to medical negligence."

Dismissing the case and giving relief to the doctor and the hospital, the Forum had further opined that,

"In view of the discussion held above, we do not find any professional negligence or unfair trade practice on the part of 2^nd opposite party. Since 2^nd OP is working in 1^st OP hospital, 1^st OP is arrayed as 1^st opposite party. So no negligence or unfair trade practice can be attributed against opposite parties 1&2. Hence the complaint is liable to be dismissed."

To view the original judgment, click on the link below.

https://medicaldialogues.in/pdf_upload/order148071.pdf

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