NCDRC upholds State Commission order, directs Gynaecologist, Hospital to pay Rs 22 lakh compensation for medical negligence during Hysterectomy

New Delhi: Upholding the order of the Kerala State Consumer Court, the National Consumer Disputes Redressal Commission (NCDRC) has recently held a gynaecologist and a private hospital guilty of medical negligence while conducting laparoscopic-assisted vaginal hysterectomy (LAVH) on a patient.

In its order, the Kerala State Consumer Court had ordered the doctor and the hospital to pay Rs 22 lakh to the Complainant, who had to undergo multiple surgeries for the bladder injury that occurred during the LAVH procedure.

The matter goes back to 2003 when the Complainant underwent laparoscopic assisted vaginal hysterectomy (LAVH) in G.G. Hospital at Thiruvananthapuram. It was alleged that on the same day, the doctor who performed the LAVH, Dr. Valsamma Chacko had informed the patient about the injury to the urinary bladder because of complicated surgery since the bladder and uterus were fused together.

After trying to repair it, the doctor had kept the patient in the ICU. However, at 6PM that day the urine output had stooped. Following this, the doctor had informed the patient about the need if a second surgery. Therefore, Senior Urologist Dr. Sasi Kumar was called and he performed a corrective operation. However, the patient was shifted to KIMS Hospital the next day. At KIMS, the doctors failed to manage the bladder injury efficiently and therefore, the patient was taken to Jaslok Hospital in Mumbai.

After the operation, the urinary leakage was rectified and the patient was discharged from Jaslok Hospital. Later she was taken to Chennai based Uro-gynecologist Dr. Raj Maheshwari. The doctor placed an implant to control passage of urine. However, he did not give any assurance about the implant's life and functioning. 

Alleging that the LAVH performed at the first hospital was done with preoperative tests and without taking informed consent, the complainant further claimed that she suffered substantial damage to her bladder and she had to undergo few major surgeries within 5 months. Filing the Complaint before the State Commission Kerala, the Complainant claimed compensation of Rs 1 crore from the treating doctors and the hospital.

On the other hand, the hospital denied any negligence or deficiency in service. The treating doctor also denied any negligence during LAVH. She submitted that based on the biopsy report and the condition of the patient, she had advised the complainant that she required only a Cone-biopsy of cervix and conservative management with regular follow-up. However, the complainant was adamant to undergo Cone biopsy and also reluctant to undergo abdominal hysterectomy. Therefore, the treating doctor had decided to conduct a LAVH, which had been performed only after taking informed consent.

The doctor further submitted that she had performed the LAVH with the assistance of a senior Gynecologist and it was uneventful though there was some difficulty in separating the uterus from the surrounding tissues including bladder. She also informed the Commission that there was leakage of blood-stained urine, which was possible due to bladder injury, as a common complication. The leakage continued despite her best efforts to repair the ladder injury and therefore, the Urologist was called for help and he performed laparotomy and the bladder injury was repaired.

However, on the same day evening, the patient developed 'anuria' (Cessation of urine) and since the Urologist was not available, the Senior Consultant Urologist Dr. Vikraman was called from KIMS. After examining the patient, he had advised to wait until the next day and restrict IV fluids. Dr. Vimla, the HOD of Nephrology from Medical College was also called. She examined the patient and expressed the requirement of dialysis and suggested shifting the patient to KIMS.

Submitting the details of the medical procedure, the treating doctor denied any negligence and submitted that the LAVH and the complications were treated promptly with due diligence. Therefore, there was no negligence or deficiency in service from her.

After considering the matter, the State Commission directed the hospital and the doctor to pay Rs 22 lakhs compensation to the Complainant. Holding the treating doctor guilty of medical negligence, the State Commission had noted, "The sufferings of the complainant/ patient are very terrible experience due to the carelessness and deficiency of service of the OP no. 2 doctor. Due to her negligence the complainant was not in a position to pass the urine till the culmination of next day's surgery. The real reason for block is that the OP. No. 2 mistakenly and carelessly sutured the entire bladder with ureters of the complainant/patient and thereafter gave Lasix which aggravated her misery. In such circumstances she has been suffering intolerable pain and sufferings due to this wrongful act of the opposite parties. Further the urine leak could not be curbed. After all she is a human being. We direct that the OP No. 1 and 2 are jointly and severally liable to pay the amount to the complainant."

Challenging the State Commission's order, the doctor approached the NCDRC bench. The top consumer court considered the submissions by both the parties and also perused the material on record. 

Even though the NCDRC bench noted that it was elective surgery, it observed, "however, from the medical record; it is evident that the OP-2 failed to perform the relevant pre-operative investigations, the fitness for anaesthesia. Nothing was on record about the insistence of the patient to perform LAVH."

The commission also referred to the affidavit of Dr. K.R. Vikraman, and relevant medical literature in this context. Referring to the matter of informed consent, the NCDRC bench observed,

"The OP-2 had initially decided cone biopsy and follow the conservative treatment. The consent was obtained only for total abdominal hysterectomy with bilateral salpingo-oophorectomy (TAH / BSO). It is also apparent that the pre-operative check-ups were done only for TAH / BSO. The consent form is devoid of ingredients of informed consent. In our view , it was just signatures on dotted lines on a printed form. Nothing could be made out whether LAVH was decided by OP-2 and the Complainant had consented for LAVH."

Further, the top consumer court observed that the doctor had admitted that she elied on the test reports produced by the complainant that were done some time back in Mumbai.

"On perusal, we note the lab investigations were done in Mumbai, but there was need to do basic investigation pre-operatively. Thus the OP-2 failed in her duty of care. It was deficiency in service," the commission observed.

"The learned Counsel for the Complainant argued that while doing the operation, the OP-2 made 3" x 3" substantial cut in the bladder and also that both the ureters were stitched in trigonal area. Dr. Sasi Kumar was called to assist her, who noted that the posterior wall of the bladder was already stitched. He stitched the anterior wall and the lateral walls. It has also to be noted that the LAVH surgery was done violating the consent which was taken only for TAH / BSO. The patient developed anuria due to suture of both ureters and trigon of the bladder. As noted, admittedly, the patient underwent major repair surgery in KIMS for about 7 hours and the ureters were released with placing the stent for urine output," the Commission further noted.

"According to OP-3, he did not put stitches over the posterior wall of bladder, where the ureters are attached. Therefore, conclusion can be drawn that OP-2 has stitched the ureters with posterior wall of bladder," it observed.

Referring to this, the Commission opined, "In our view, it was a fit case to apply principle of 'res ipsa loquitur' and the evidence of the opposite parties itself proves negligence and deficiency in service."

The top consumer court referred to the Supreme Court orders in the case of Dr. Laxman Balakrishna Joshi vs. Dr. Trimbak Bapu Godbole & Anr. and A.S. Mittal vs. State of U.P and noted,

"Thus, in our considered view, in the instant case OP-2 failed in all the counts as discussed in LB Josh’s case (supra). It was not even bonafide mistake, but a therapeutic misadventure. The Consent was also defective."

Holding the hospital vicariously liable, the Commission mentioned in the judgment,

"Adverting to the compensation and vicarious liability. The G.G.Hospital (OP-1) in its reply submitted that there was no employer and employee relationship between the OP-1 & OP-2. It is a common notion that the doctors or hospitals during proceedings will try to show that the negligent or incompetent employee did not actually work as an “employee” of the facility. The hospital will try to distance itself from the negligent acts of the doctor by claiming the he or she was an independent contractor or that their work was not affiliated with the facility. The Hon’ble Supreme Court in the Maharaja Agrasen Hospital & Ors vs. Master Rishabh Sharma & Ors[1] held that the Hospital is vicariously liable for acts of doctors engaged by it. If the hospital fails to discharge their duties through their doctors, being employed on job basis or employed on contract basis, it is hospital which has to justify the acts of Commission or Omission on half of their doctors. Therefore, based on the principles of vicarious liability, in the instant case the G.G.Hospital is vicariously liable for the act of OP-2 Dr.Valsamma Chacko."

With this, the top consumer court upheld the order of the State Commission and noted, "To conclude, in the entirety, we do not find any need to interfere with the reasoned order of State Commission, same is affirmed."

To read the order, click on the link below:

https://medicaldialogues.in/pdf_upload/ncdrc-order-209846.pdf

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