Patient's dying declaration proves costly for Fortis Hospital Mohali, Gastroenterologist: Rs 50 lakh compensation slapped

However, the patient was kept in the ICU on the pretext that ascites was to be removed from his stomach. On 28.07.2021 and 30.07.2021, tapping was done, and allegedly, due to negligent tapping, the patient's oxygen level came down drastically, because of which he had to be put on oxygen support.

The complainant submitted that the patient was fully conscious despite the oxygen mask, and he heard the conversation made by the hospital Director during his visit, stating that tapping had been wrongly done upon the patient and it would be done again. When the patient's wife went to meet her husband the next day, the patient, who was unable to speak due to a mask on his mouth, asked for a pen and paper by making signs.

A cannula was affixed to his hand to inject medicine, glucose etc. Regular monitoring on the computer was being done. When the patient's wife gave him a pen and paper, which was a part of the medical report lying beside his bed, the patient conveyed to the complainant that the tapping for removal of ascites had been done wrongly. With a shaky hand, the patient wrote, "Subah Director had come Director said *** (doctor) has done something wrong tapping. It will be done again."

Claiming that it was the dying declaration of the patient, the complainants alleged that due to wrong tapping, the oxygen parameters of the patient dropped drastically, because of which he was put on oxygen support.

When the complainant enquired from the treating doctor, about the writing, the doctor allegedly retorted, stating that it was not his department but the Pulmonary Department, which had done the tapping.

Consequently, the patient was put on a ventilator for his worsening condition. As per the complainants, the ventilator had to be put in due to an abdominal ascetic tap; the concerned doctor negligently ruptured the diaphragm, leading to hydrothorax, which further led to acute respiratory failure. The carbon dioxide level had exceeded, and blood pressure had also dropped. On August 2, 2021, the patient was declared dead.

Alleging negligence during the treatment of the patient, his wife and minor children filed a consumer court complaint and demanded Rs 2 crore compensation along with interest. The complainants further accused the hospital and the treating doctor guilty of deficiency in service and unfair trade practice as they did not supply the discharge summary in order to hide the acts of omission and commission.

On the other hand, the hospital and doctor claimed that before the incident, the patient had sought treatment twice at the hospital as he had a life-threatening condition of liver disease associated with alcohol dependence.

Patient was suffering from end stage liver disease and its complications i.e. jaundice ascites, encephalopathy Grade III, spontaneous bacterial peritonitis (SBP) and respiratory failure, submitted the hospital, further adding that the patient had a history of daily consuming alcohol for a period of more than 10 years and last intake was 16.10.2020, further he was suffering from morbidly obese (Obesity Class III) condition.

Further, the hospital claimed that the patient’s wife was counselled that the patient had decompensated cirrhosis with a high mortality of 50% and needed a liver transplant, which was not available at Fortis Hospital. The patients decompensate at rate of 10% per year and have 50% - 10 years survival rate. At the time of admission, the patient was diagnosed with alcoholic liver cirrhosis with acute chronic liver failure with fluid in abdomen (ascites) Grade III Hepatic Encephalopathy with acute kidney injury. Besides the above complications, he also had severe life-threatening complications of Spontaneous Bacterial Peritonitis (SBP) which is infection of the ascitic fluid. In such a situation, ultrasound guided ascetic tap become the most crucial procedure for safely taking out the fluid and testing for infection of SBP. The treatment was given to the patient and he was discharged from the hospital on 18.12.2020 in a stable condition, it was submitted.

Even though in March 2021, the patient and his wife were counselled for liver transplant, they allegedly left the hospital against medical advice and thereafter the patient went to PGIMER, Chandigarh, where he was again counselled for liver transplant. The hospital further submitted that in April 2021, the patient had episoe of COVID pneumonia after which he started experiencing shortness of breath and was brought to the emergency of Fortis Hospital in a critical condition. 

A diagnosis of CLD with hepatic encephalopathy was made. He was admitted under the treating doctor with DM in Gastroenterology. He was evaluated in the emergency by the emergency Medical Officer, and after discussing with the gastroenterology team, the appropriate treatment in the form of IV antibiotics (injection tazact) was started, and relevant tests and investigations were ordered. He was also advised to undergo an ultrasound of the whole abdomen, guided ascetic tap, bubble echo, and Duphalac bowel wash.

Ultrasound-guided diagnostic and therapeutic tap was planned, which was done by a Radiologist on 28.07.2021 at 4.45 PM. The procedure was uneventful. 70 ml of fluid was sent for analysis, and the rest was drained for therapeutic purposes. Further providing the details of the consequent medical procedure, the hospital and doctor submitted that after conducting HRCT Chest, the patient was considered for high-risk pleural tapping. Consent was obtained, and altogether 2 litres of fluid were aspirated. Allegedly, the patient had no post-procedure complications.

The hospital submitted that on 31.07.2021, Bubble Echo was performed and it confirmed hepato-pulmonary syndrome (HPS), which almost doubles the mortality rate in patients awaiting liver transplant, irrespective of other predictors of mortality such as age, MELD score and comorbidities.

Submitting further details of the patient's medical records, the hospital and the doctor denied all allegations of medical negligence. They also argued that there was no expert evidence to prove medical negligence.

While considering the matter, the District Consumer Court took note of the submissions made by the hospital and the doctor and also took note of the medical records of the patient. It noted that the hospital and the doctor failed to place on record any consent obtained from the patient to conduct the procedure of ascitic tapping upon him on 28.07.2021.

"...as the patient was conscious and in fit physical and mental state to give the same on 28.07.2021 so his consent was legally required...it is held that his consent was not obtained despite being competent to give the same. It is undisputed fact that Sh*** was conscious on the date of admission on 28.07.2021 and thereafter also upto 30.07.2021, as is evident from medical documents of the hospital. However, no consent was taken from him before performing the ascitic tap procedure on 28.07.2021. This omission constitutes a violation of doctrine of informed consent which has been recognized by the Hon’ble Supreme Court in Samira Kohli vs. Dr.Prabha Manchanda (2008) 2 SCC 1, “OPs are under legal obligation to take valid consent from a conscious patient”," observed the Commission.

"Moreover, no written consent was obtained from complainant No.1 to conduct the same on 28.07.2021. Performing a procedure of ascitic tapping without obtaining consent of the patient or his wife i.e. complainant No.1 in itself constitutes deficiency in service," it held.

The Consumer Court noted that even though the ascitic tapping procedure was claimed to have been uneventful, the procedure was done again on 30.07.2021, and subsequent clinical deterioration of the patient, characterised by massive right pleural effusion, complete lung collapse and mediastinum shift is attributable to iatrogenic puncture of the diaphragm during the procedure. To prove this, the complainants placed on record the handwritten note of the patient.

"This handwritten note has been written by Sh.*** since deceased in his own shaky handwriting in the front of his wife i.e. complainant No.1 who witnessed him writing the same. Hence, this document could not be said to be a ‘hear say’ evidence but amounts to dying declaration as per Section 32 of the Indian Evidence Act. It was made by patient when he was conscious and alert as his Glasgow score scale was E 4 V5 and M 6 . Though it was neither signed by him nor date was mentioned in it yet the fact could not be ignored that it was written by deceased himself. OPs have taken objections regarding discrepancies of date mentioned by complainant No.1 in her Complaint and Replication but said minor discrepancies cannot be taken into account taking into account the seriousness of the situation faced by complainant No.1 when her husband was on the edge of his death and rather such discrepancies are natural because when anyone is suffering from such trauma then such discrepancies are natural to occur," the Commission noted at this outset.

The consumer court also dismissed the claim of hepatic hydrothorax made by the treating hospital and the doctor as it noted that medical literature suggests that 'hepatic hydrothorax rarely exceeds 500 ml', whereas, in this case it was over 9 litres of fluid was drained from the right pleural cavity between 30.07.2021 to 01.08.2021, "making it irrelevant under hepatic hydrothorax due to chronic liver disease but to proceed wrong tapping during ascetic tapping procedure."

"Further, the OPs have committed overwritings/cuttings in their record in order to bring the case within the four walls of evidence that patient is suffering from pleural effusion since 28.07.2021. The cuttings are visible with the naked eye and all cuttings are made with an ulterior motive to misguide the LRs and this Commission that patient was also suffering from Respiratory Rate (RR) function and pleural effusion since the day of his admission..This overwritings and cuttings constitute not only deficiency in service but also unfair trade practice adopted by OP No.1 (fortis hospital)," the Commission further observed.

The Commission held that the hospital and the doctor, being experts in the medical profession, are legally bound to disprove the same to discharge their burden of proof, which they failed to do in the present case. Accordingly, the consumer court held the OPs liable not only for medical negligence but for deficient service and Unfair Trade Practice.

Accordingly, the Consumer Court directed the hospital and the doctor to pay Rs 50 lakh compensation. It held, "While awarding compensation, we have to take into consideration health of the deceased as well as serious diseases he was suffering from. Hence the ends of justice would meet if a lumpsum compensation of Rs.50 lacs is awarded to the complainants in lieu of the medical negligence committed by OPs."

To view the order, click on the link below:

https://medicaldialogues.in/pdf_upload/fortis-hospital-mohali-rs-50-l-compensation-296788.pdf

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