Negligence in laparoscopic cholecystectomy results in patient's death: ISPAT, Apollo hospitals, Doctors slapped Rs 25 lakh compensation

New Delhi: The National Consumer Disputes Redressal Commission (NCDRC) recently held Doranda-based Ispat Hospital and Andur Razzaque Ansari Memorial Weavers' Hospital (Apollo Hospitals Group) and its doctors guilty of medical negligence while providing treatment to a patient operated for removal of the gall bladder. 

Following the operation, the condition of the patient worsened and she ultimately died because of internal bleeding leading to cardio-respiratory failure.

Previously, while considering the matter, the State Commission had exonerated the Apollo Hospital. However, now the top consumer court has noted that the "doctors at ISPAT and Apollo Hospital liable for not exercising their reasonable skills and failed to provide standard of reasonable care."

"Based on the discussion above, we hold the doctors at ISPAT and Apollo Hospital liable for not exercising their reasonable skills and failed to provide standard of reasonable care. Thus, both the hospitals are vicariously liable for the acts of their employees (doctors). We find the State Commission has awarded just and adequate compensation, but erred while deciding negligence against the OP-6 (the Apollo Hospital)," read the order.

Therefore, the NCDRC bench has slightly modified the State Commission order. Even though the amount of compensation of Rs 25 lakh has been kept the same, the Apex consumer court has clarified that Apollo Hospital will also pay an equal proportion.

"Considering the entirety of the fact of the case, we affirm the Order of State Commission with the modification that the compensation awarded by the state commission shall be paid in equal proportion by the OP-1 & OP-6 within 6 weeks from today, failing which, the entire amount shall carry interest @10% p.a. till its realization," the NCDRC bench observed.

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The matter goes back to 2001 when the complainant's wife, the patient had been operated by Dr. Agrawal for laparoscopic cholecystectomy i.e. removal of gall bladder. The operation had been conducted at Ispat Hospital. However, during the hospital stay on July 9, bile discharge was found to be abnormally high and therefore, the patient had been referred to Andur Razzaque Ansari Memorial Weavers' Hospital or the Apollo Hospital.

At the second hospital, ERCP had been performed but it remained incomplete since the doctor was allegedly unable to cannulated the Common Bile Duct (CBD). Finally, Hepaticojejunostomy operation had been performed. However, the condition of the patient worsened from July 22 and two days later, she died. The cause of death was mentioned as ‘Biliary Peritonitis’, internal bleeding leading to cardiorespiratory failure. Aggrieved by the death of the patient, her husband and two sons filed a consumer complaint before the State Commission Jharkhand. 

On the other hand, Ispat Hospital and its doctors denied any deficiency and medical negligence on their part. Meanwhile, Dr. Agrawal expired during the proceedings and his name was deleted from the proceedings. Dr. Mishra and Dr. Sreeniwasulu filed their replies and denied any negligence during the operation and post-operative care. It had been submitted that the treating doctors had chosen appropriate method based on the patient's condition. Further they submitted that the laparoscopic procedure is a least invasive and safe method for the patient as she was diabetic and obese.

Further, referring to the allegation of Consent taken for open surgery and changing it to laparoscopic, it was submitted that since entire preparations were ready, the procedure could not be changed abruptly with short notice. They also denied that CBD of the patient had been injured due to negligence.

Meanwhile, Apollo Hospital also denied about the removal of the drainage tube on July 11 and submitted that the drainage tube had come out on its own. Denying allegations of delayed open surgery, Apollo Hospital further submitted that the operation was not possible because of fluctuating blood sugar levels of the patient.

After considering the matter, the State Consumer Court partly allowed the complaint and held Ispat Hospital and its doctors liable to pay Rs 25 lacs compensation along with interest @9% and Rs.1 lac towards litigation charges. However, Apollo Hospital had been exonerated by the State Commission.

Challenging the State Commission's order, the Ispat Hospital and its doctors approached the top consumer court. The counsel for the complainants argued that the doctors at ISPAT Hospital during laparoscopic cholecystectomy had cut the CBD instead of cystic duct and wrongly clipped the lower trunk of CBD leaving upper part of duct un-clipped. It resulted in uncontrolled biliary leak in the peritoneal cavity and biliary peritonitis.

Alleging that the doctors were not serious, the counsel further submitted that the patient just got referred to Apollo Hospital for ERCP to shift their liability on Apollo Hospital. Further, it was claimed that the doctors in Apollo Hospital were also careless and they performed ERCP negligently and removed the drainage tube on July 10. It was alleged that the doctors delayed the surgery till July 17 and it resulted into accumulation of bile in the peritoneal cavity and ultimately the death of the patient. 

Meanwhile, Apollo Hospital submitted that ERCP was difficult and incomplete and it was also submitted that the hospital took all possible steps to save the life of patient.

Apart from taking note of the submissions, the NCDRC bench also perused the entire medical record, took reference from several medical literature on CBD injuries and gone through the Standard text books on surgery.

Referring to the medical record of Ispat Hospital, the Commission noted that,

"Admittedly, after the surgery, there was large drainage of bile till 09.07.2001 and no steps to investigate or stop the leakage were taken. It is pertinent to note that the patient was referred for ERCP after 9 days which was the ultimate cause of biliary peritonitis. The Appellants failed to produce the USG films in support of their case. The State Commission rightly observed."

Further perusing the biliary drainage record, the Commission observed, "On bare perusal of the table, it is clear that, the biliary leakage was significant. The USG abdomen revealed of large collection in sub-hepatic space."

The Commission noted that Dr Ali performed the exploratory laparotomy and Hepaticojejunostomy on July 17, at Apollo Hospital. In the operative notes, it was recorded that “Large amount of bile in the peritoneal cavity, CBD had been divided, leakage of bile from the cut end of CBD”.

Examining the role of Apollo Hospital, the Commission noted,

"It is pertinent to note that the State Commission erred, which, despite having held that Apollo Hospital (OP-6) was negligent, dismissed the Complaint qua OP-6 as barred by limitation. We note that during first round of litigation in FA No. 860 of 2003, this Commission, vide order dated 28.04.2010, remitted back the matter to the State Commission to implead OP-6. The OP-6 never challenged that Order, thus it attained finality. Therefore, the impleadment of OP-6 was not barred by limitation."

Referring to the Complaint, the NCDRC Bench also observed, "It is pertinent to note that, the drainage tube was removed, but it was not clear whether it was removed at ISPAT or APOLLO. Thus, it proves that there was leak of bile due to CBD injury."

The commission also referred to the medical record of the Apollo Hospital, which revealed that on July 10, it was recorded as “C/o drainage tube removed”.

Taking note of this, the Commission pointed out the failure of duty by the doctors of Apollo Hospital and noted,

"Thus, it confirms in Apollo Hospital that the drainage tube was removed. Thereafter, the ERCP was performed on next day. It was not successful, therefore, the decision to perform open surgery was taken. But it was not done immediately. Nothing is forthcoming as to why the patient was kept waiting till 17.07.2001. The findings of bile drainage during intervening period i.e. 11.07.2001 to 16.07.2001 were conspicuously missing. It was just mentioned that abdomen soft and there was no leakage from drain site. Since the drain tube was removed, the abdominal accumulation of bile increased. The doctors / staff on duty at Apollo Hospital failed to insert drainage tube, which could have accumulated the bile. Thus, the condition of the patient further deteriorated."

In order to discuss the laws laid down on medical negligence, the Commission referred to Supreme Court order in the case of Dr. Laxman Balakrishna Joshi vs. Dr. Trimbak Bapu Godbole & Anr. and A.S. Mittal vs. State of U.P.

Holsing the doctors at both the hospitals negligent, the Commission observed,

"Taking clue from above judgment, it is clear that at ISPAT hospital, during laparoscopy, the CBD was cut, whereas in Apollo Hospital, after ERCP, the doctors delayed the exploratory laparotomy for a week. Thus, in our considered view, the doctors at both the hospitals (ISPAT & Apollo) failed in their duty of care. It further resulted into biliary peritonitis and death of the patient."

"We do not agree with the State Commission which dismissed the complaint against the OP-6 (Apollo Hospital) relying upon the Discover Rule as discussed by the Hon’ble Supreme Court in V.N. Shrikhande (Dr.) Vs. Anita Sen Fernandez[4] case. However, in the case in hand, it is pertinent to note that the patient was operated in two Hospitals and sustained injuries, which led to the death. From ISPAT Hospital, she was referred to Apollo Hospital, but the Complainant raised the entire allegations on OP-1 only. Therefore, merely on such technicality, the OP-6 cannot be exempted from its liability of negligence, otherwise, it would defeat the principles of natural justice under the Consumer Protection Act, 1986." it added.

To read the order, click on the link below:

https://medicaldialogues.in/pdf_upload/ncdrc-medical-negligence-207957.pdf

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