Open Surgery instead of Laparoscopic Surgery: Haryana Surgeon slapped Rs 8 lakh compensation

New Delhi: The National Consumer Disputes Redressal Commission (NCDRC) recently directed a Haryana-based doctor to pay Rs 8 lakh compensation to the family of a patient, who died after undergoing surgery for swelling in the intestine.

The NCDRC bench upheld the State Commission's order after noting that doctor performed open surgery even though he had informed the relatives that a laparoscopic surgery would be conducted. Consequently, the surgery led to Septicaemia and after fighting for her life for more than a month, the patient died.

Although the State Commission had directed the doctor to pay Rs 8 lakh as compensation and Rs 50,000 for mental harassment and agony the NCDRC bench reduced it to Rs 8 lakh holding that multiple compensations for singular deficiency is not justifiable.

"The Opposite Party No. 1 (Dr.Sharda) and Opposite Party No.4 (Insurer) are jointly and severally directed to pay the Complainants Rs.8,00,000, along with simple interest @ 9% per annum from the date of filing of the complaint till realization, within a period of one month from the date of this order. In the event of delay beyond one month, the interest rate applicable for such extended period will be @ 12% per annum," ordered the Commission.

"The compensation of Rs.50,000/- awarded towards mental agony and harassment is set aside," it added.

The complaint was filed by the children of the patient. The matter goes back to 2009 when the patient experienced abdominal pain. Initial check-up by a doctor suspected possible stone-related issues. Thereafter, the patient consulted a surgeon Dr Sharda, who advised an ultrasound due to the patient's deteriorating condition.

Medicines were prescribed and after reviewing the USG report, the doctor recommended continuing his prescribed treatment. However, the patient's condition worsened leading to night-time vomiting and subsequent hospitalisation. More medicines were prescribed by a physician who was called by the treating doctor.

However, the vomiting persisted and therefore the doctor advised the complainants to consult Dr Singh of Holy Help Hospital, who recommended laparoscopic surgery after 48 hours, in coordination with the treating doctor. Accordingly, the treating doctor confirmed performing the laparoscopic surgery, explaining a small incision near the "Nabhi" to clear the intestinal blockage, estimating 30-minute procedure. 

Even though initially the doctor reported that the patient was in stable condition post-surgery, later the condition of the patient worsened and the patient was shifted to Holy Help Hospital's ICCU on a ventilator upon Dr. Singh's advice, who indicated a 50-50 chance of survival.

Allegedly, the patient's maternal uncle witnessed profuse discharge from the wound, causing concern. Thereafter, at the complainant's request, another doctor- Dr. Grewal examined the patient at Holy Help Hospital, indicating a 100% risk factor and an urgent need for another operation due to Septicaemia, with bleak survival chances. Accordingly, Dr. Grewal performed the surgery and after fighting for life while on ventilator in ICCU for 42 days, the complainants alleged that the treating doctor had conducted the first surgery, where Dr. Dua had administered local Anesthesia and Dr. Yadav had conducted the ultrasound examination. However, the complainants alleged that it was not a Laparoscopy surgery but an open surgery. Therefore, alleging all of these three doctors guilty of negligence, and deficiency of service, the complainants demanded Rs 8 lakh as compensation along with interest, besides damage for harassment, mental agony and litigation expenses etc.

On the other hand, the doctors denied the allegations of negligence. It was submitted that the initial abdominal ultrasound revealed intestinal swelling and further tests were conducted, and treatment commenced, including antibiotic medications. However, due to an unclear diagnosis, an open surgery was deemed necessary. They claimed that the nature and the risks of the surgery were explained to the complainants and a written consent was obtained before successful completion of the surgery, wherein a hole in the intestines was repaired.

They further submitted that due to the patient's respiratory difficulties post-surgery, ventilator support was initiated, and she was referred to Dr. Singh, MD for further management. Following this, the doctors denied any involvement in the patient's medical treatment. They claimed that there was no deviation from the standard treatment protocol and they also criticized the complainant's lack of specificity regarding the alleged negligence, timing, or specific actions that the doctors failed to undertake.

Although the District Commission dismissed the complaint, the order of the District Consumer Court was set aside by the State Commission, which awarded Rs 8 lakh as compensation along with interest @9% per annum. The Commission also granted the complainants a compensation of Rs 50,000 for mental agony and harassment. The State Commission passed this order after taking into account the opinion Board of Directors. However, this order was challenged by the petitioner Dr. Sharda. He argued that the State Commission misinterpreted the opinion given by the Board of Directors. They had said that prima facie negligence cannot be ruled out. For negligence to be proved, the complainant needed to submit more concrete evidence to prove his allegations, argued the doctor.

While considering the matter, the NCDRC bench referred to the Supreme Court order in the case of Dr. Laxman Balkrishan Joshi Vs. Dr. Trimbak Bapu Godbole and Anr., and Jacob Mathew v. State of Punjab.

NCDRC noted that the treating doctor conducted the surgery on the patient when Dr. Dua administered the Anaesthesia. "He informed the relative that laparoscopy surgery would be conducted. However, open surgery was performed on 14.02.2009. It is also undisputed that the surgery had led to septicaemia, critical condition of the patient and as a sequel she remained on ventilator and died on 06.04.2009. While the OP-1 had stated that consent for conventional surgery was obtained from the family, the same was not established. Notwithstanding the consent, if any, it is also undisputed that OP-1 performed an open surgery on the patient on 14.02.2009 and the surgery led to septicaemia, critical condition of the patient, she remained on the ventilator in a different Hospital and died on 06.04.2009," the Commission observed.

Further, the top consumer court also referred to the opinions given by the Board of Directors. "...in the opinion of the Panel, it appears that Prima Facie negligence on the part of Respondent No.1 cannot be ruled out and there is nothing in these documents to suggest a prima facie negligence on the part of Respondent Nos.2 and 3," the Board of Directors had opined.

However, while deciding the amount of compensation, the NCDRC bench referred to the Supreme Court order in the case of DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda, where the Apex Court had decided that multiple compensations for singular deficiency is not justifiable. "Therefore, the award of Compensations of Rs.50,000/- on account of mental agony and harassment is found to be not tenable," noted the Consumer Court.

"With due consideration of the above deliberations and facts and circumstances of the case, I am of the considered view that the order of the learned State Commission in FA No. 746 of 2014 dated 15.12.2016 is based on facts and law and does not require any interference, except for grant of Rs.50,000/- as compensation over and above the interest element already granted," it further observed.

Therefore, the NCDRC bench modified the order and directed the treating doctor and the Insurance Company to pay Rs 8 lakh as compensation along with interest @9% per annum.

To view the order, click on the link below:

https://medicaldialogues.in/pdf_upload/ncdrc-rs-8-lakh-compensation-230939.pdf

Also Read: Septicemia Leading to Leg Amputation: Doctor slapped Rs 4.5 Lakh Compensation for Negligence