Operation with High blood sugar: Consumer Forum grants relief to Apollo Hospital, doctors, imposes fine on complainant

However, in the judgment dated 20.01.2021, the President of the Commission, Mr. D.T. Soni, had sympathised with the complainant, who had lost his father, but he further noted, "such misplaced sympathy cannot take place of the proof in the legal battle."

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The case goes back to 2006 when the Complainant's father had been suffering from a tumour on the Pancreas and had also illness of diabetes as well. The doctor, a known Gastroenterologist, upon examination, decided to operate on the patient at the Apollo Hospital, Gandhinagar. The hospital arranged a medical check-up of the patient and during that, the Blood Sugar was found to be 250mg.

The Complainant stated before the Commission that following the operation when he realized his father to be unconscious, another doctor at the treating hospital assured good condition of the patient. After some time, the complainant found the BP to be 45. As there was no doctor or nurse, he contacted the treating doctor on phone and some injections were given to the patient.

However, the condition of the patient started worsening and two days after operation the patient was declared to be dead. Afterwards, the complainant sent the doctors legal notice alleging them for negligence and claimed Rs 50 lakh, which remained unanswered.

Thus, the complainant approached the Consumer Forum of Udaipur District and the rule had been in favour of the Complainant. In response, the doctors, filed a Revision before the Commission.

The counsel for the deceased's son stated before the Commission that the treating doctors did not wait and hurriedly took the patient to the operation theatre even though there was 217 mg blood sugar. The patient had developed many complications because of the absence of care and heedfulness taken by the .opponent's treating doctors, he alleged.

He further pleaded the Commission to note that although in the written statement it had been stated that a penal of five doctors had checked up and got the consent of the patient's family, there had been no affidavit filed by any of the five doctors. Mentioning this point, he further submitted that no consent had been taken from the patient or his family.

He further alleged that the patient was fully unconscious laying on the stretcher and after being shifted to MICU, he was not attended by any doctor or nurse and the worsening condition developed due to fall of BP to 45.

It was also submitted that the deceased was not suffering from Cancer as it was evident from the biopsy report dated 11/07/2006 and hemiplegia had nothing to do with the present disease. As the blood sugar was 217 mg before the operation, the deceased's son had denied for operation till normalcy would come back but, the treating doctor refused it and told that they would conduct the operation at a high sugar level. He further argued that it was a planned surgery and, not an emergency operation. However, the doctors operated on the deceased as if the doctors wanted to do some experiment.

To prove the point, the counsel for the complainant further referred to the report of a former professor and head of anaesthesia Udaipur. As per the doctor, at such high sugar level, the operation should have had postponed.

Thereafter, holding the treating doctors responsible for the death of his father, the complainant filed the complaint before the Commission under Section 12 of the Consumer Protection Act, 1986 against the doctors at the Apollo Hospital seeking compensation of a total of Rs. 19 lakh with costs and interest on the part of the doctors.

On the other hand, the treating doctor, through his counsel had denied all the allegations labelled against him. In the written statement, he mentioned his vast educational and surgical experiences and stated that the patient was suffering from Cancer of Pancreas at the age of 83 years and he also had Hemiplegia before few years and was treated by Neurologist. Ha had also VPS (abnormal heart rhythm) for which a cardiologist was consulted.

Thus, considering the deceased old age of 83 years, and weak physical condition the risk factors in surgery had been properly explained in detail to the patient and his family members also. After lots of discussions and considerations, the deceased and his family members requested the doctor to operate upon at Apollo Hospital situated at Gandhinagar. As the patient himself was a doctor he was confident about controlling Diabetes. However,  the Hospital took all the necessary corrective and precautionary measures and several tests had been done before the surgery. The treating doctor also formed a team of senior doctors of Apollo Hospital and the operation began only after thorough discussion with those doctors.

The treating doctor claimed that consent of the patient, as well as his relatives, was taken before the operation. In fact, the deceased also consulted a Neurologist for Hemiplegic and another doctor for Diabetes. After admission the hospital staff also kept close watch of blood sugar throughout the night and the level was kept under control. 

He also stated that there was a chance or probability of complications arising and which could also lead to the death of the patient due to the past long medical history of the patient. He further stated that the death of the patient was unfortunate but for this, the doctors couldn't be faulted with.

The counsel for the doctor further stated that the doctrine of "Res Ipsa Loquitur" (things speak automatically) would not be applicable in each and every case where a patient dies. He also argued before the Commission that for oblique motive, the complaint had been filed in order to extort money by making false and frivolous allegations against the doctor. The patient had died due to his old age and many physical complications and the doctor couldnt be blamed for this.

Reliance was made by the doctor's counsel upon Jacob Mathew v/s Union of India : (2005) 6 SCC 1 wherein, Hon'ble Supreme Court had held "no sensible professional would intentionally commit an act or omissions which would result in harm or injury to the patient since the professional reputation of the professional would be at stake." He also referred to the case of Bolam v/s Friern Hospital Management Committee.

In a nutshell, it had been submitted on the behalf of the doctor that the complainant had failed to show any negligence, carelessness, or omissions on the part of the doctor which may warrant the action under the Act. 

After listening to all the arguments by both the parties and looking at all the pieces of evidence, the Commission noted that the doctor, after necessary physical tests, had examined the patient (who had a history of illnesses along with cancer) firstly with a penal team of doctors belonging to different fields. The Commission also noted that although no doctors had filed an affidavit on the basis of that the doctors couldn't be faulted with.

"It is up to the doctor's discretion as to whether operation to be done or not in such circumstances stated in the present case. We Consumer Forum must restrain out self to add or implant our own opinion on the operation," observed the Commission.

Mentioning that a team of doctors were present in the operation theatre the Commission added, "for every death after the operation, doctor should not be made target or victim".

The Commission further observed,

"It hardly needs to state that the negligence in medical science is a failure to act in accordance with the standards of reasonably competent medical man and it has to be explained as to how doctor has failed in his duty to take care or any breach of his duty and consequential damage suffered by the complainant, therefore, the liability of the doctor's is based on "Ordinary Professional standard" as laid down in Bolam's case."

"We have also taken care to see that many times as per our experience, if at the time of operation or after the operation, the patient dies then there is uproar in the mind of the relative who sometimes takes the doctor to a task and blame the doctor with carelessness," added the Commission in its judgment.

Further referring to the consent that had been given by the patient himself after a lot of discussions, the Commission mentioned "Thus, it is clear that at the whopping age of 83 years, the patient agreed to be operated upon after much discussion and deliberation."

Finally the Commission observed,

"To allege a doctor with negligence has become very simple and routine thing when the case fails before or after operation. We have experience that there are instances that patient dies because of inscrutable circumstances even on a stretcher before operation, then in such situation, doctors are miserably made a victim of wrath by the patient and doctors or medical men are dragged into legal battle for extorting money by the relatives of the deceased or an injured, which is an irony."

Referring to the case of Bolam v/s Friern Hospital Management Committee : (1957) I WLR 582 the Commission stated, "the Courts there opined that a doctor is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a reasonable body of medical men. Here we failed to understand that where doctor has failed in his duty to take care or any breach of his duty and consequential damage suffered by the complainant. Thus, liability of the doctor is based on "ordinary professional standard" as laid down in Bolam's case."

"In the present case, the complainant has failed to prove that there was a breach of the duty of care in any treatment or administration of the treatment. It is also well settled that even a wrong diagnosis is not negligence and the Court has to keep in mind the "ordinary skilled professional standard of care" expected from the doctor."

Thus, relieving the treating doctors of all charges the Commission added,

"In the result, it requires to be held that complainant has failed to prove any negligence or carelessness or the part of the opponents doctors, therefore, we hope by this judgment that the trauma and harassment being felt by the doctor since the pendency of this complaint will definitely relieve the doctors from such situation. In fact, we venture to hold that there was no negligence as alleged on the part of the doctors, therefore, the imputation of negligence against three opponent doctors fails. Though, our sympathy maybe with the complainant but such misplaced sympathy cannot take place of the proof in legal battle. Hence, this complaint requires to be dismissed with costs by passing the following final order."

Disposing of the case, the Commission had ordered "This complaint stands dismissed with costs quantified Rs. 2,000/- (Rupees Two Thousand Only). The costs to be deposited in this Commission within 10 (ten) days from today."

To view the original order by the Commission, click on the link below.

https://medicaldialogues.in/pdf_upload/medico-legal-149014.pdf

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