Performing Incision to remove Tonsil Pus without Proper Consent: Doctor slapped Rs 15 lakh compensation

New Delhi: The National Consumer Disputes Redressal Commission (NCDRC) recently upheld the order to the Chhattisgarh State Consumer Court, which had slapped Rs 15 lakh compensation on Bhilai-based Jawahar Lal Nehru Hospital and Research Centre and its doctor for performing an incision on a patient by making an opening in the abscess of the tonsil.

The patient had swelling on the right side of the tonsil. Apex consumer court pointed out that the medical literature proves that the mortality rate is 11% to 40% due to larungospasm which usually occurs due to “negative pressure pulmonary edema”.

Therefore, "...it was necessary for the doctor to inform the patient and his family member about the risk and after obtaining consent, start the process of treatment of incision by making opening in the abscess of the tonsil," observed the top consumer court as it upheld the order of the State Commission.

The matter goes back to 2014 when the husband of the complaint went to Jawahar Lal Nehru Hospital and Research Centre, Bhilai for his treatment of 'pain in throat', 'odynophagia' and 'change in voice'. 

On local examination, swelling in right side tonsil was diagnosed. Thereafter, the treating doctor Dr. Garg advised some medicines and tests and admitted him to the hospital. Test reports were obtained and examined on the same day and everything was found to be normal.

Therefore, the doctor advised to continue the same medicines and on the next day, the doctor examined the patient again in the hospital and found his condition as improving. Some more medicines were prescribed. The next day, the patient was examined by the visiting doctor Dr. Barle who allegedly found the condition of the patient to be normal.

It was alleged by the complainant that one day later Dr Garg attended the patient and without taking any precaution, the doctor allegedly did incision in the right side of the tonsil to drain out pus from it. Allegedly pus started forthcoming and choked larynx and breathing tube and entered into lungs. Due to this, the patient became unconscious.

Immediately, the patient was taken to the ICU and kept on the ventilator. However, the patient passed away and it was alleged that in order to conceal negligence of the doctor, the other doctor of ICU fabricated papers and declared the patient as 'dead' at 15:45 hours.

Thereafter the complainants approached the State Consumer Court and filed the complaint on 17.12.2014 and asked the hospital and doctor to pay Rs 2025000 as compensation for monetary loss, Rs 1012500 for future monetary loss, Rs 200000 for mental agony and pain and Rs 20000 as litigation costs.

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On the other hand, the doctor and the hospital denied the allegations of negligence and submitted that the patient was diagnosed with swelling due to pus in the right side of tonsil and prescribed for antibiotic medicines. On 16.05.2014, in the progress sheet of the patient 'Afebrile' had been noted and some additional medicines were also prescribed. Thereafter Dr, Barle examined the patient and found that there was no improvement in the patient's condition and advised for examination by senior doctor of ENT.

Thereafter, Dr. garg decided to drain out the pus by incision and he explained the process and the associated risk to the patient as well. It was further submitted by the doctor and the hospital was fully equipped with all the necessary lifesaving tools.

It was submitted that the incision was performed by Dr Garg by making opening in the abscess of the patient with full care and caution as per procedure prescribed in medical books. The larynx of the patient was more sensitive and got closed due to sudden contradiction in the muscles due to which laryngospasm occurred. As soon as it was noticed that the patient was suffering from laryngospasm, the process of intubation was started by the team of the doctors in OPD ENT but as there was so much spasm in the larynx muscles of the patient that Interracial Tube did not go into the breathing tube. Then within 3-4 minutes, the patient was taken to ICU, where the doctor immediately inserted Interracial Tube and connected with ventilator (cricothyroidotomy) by opening the upper part of breathing tube.

However, the condition of the patient started worsening and the patient became unconscious. The doctor diagnosed that ‘pink frothy secretion tracheotomy’ was coming from the tube, which can happen due to laryngospasm and pulmonary edema. Immediately, the relatives of the patient were informed about the critical condition of the patient and after obtaining consent it was found that the patient's lungs were filled with water and frothy secretion was still happening. Suddenly, the patient suffered cardiac arrest. Consequently, ventilator support was given to the patient and CPR and chest massage were also given.

The doctor and the hospital submitted that despite adopting all the rescue techniques the patient could not be saved. It was submitted that the difference in time recording in the OPD document and ICU document of the patient was only because there were different eatches at those places and no tampering was done in this respect. Therefore, the doctor and the hospital denied any kind of negligence on their part.

While considering the matter, the State Commission found that even though the doctors of the hospital did not commit any negligence in treating the patient, the patient and his family members were not informed about the risk in treatment and their consent was not obtained before commencing the treatment. 

The State Consumer Court noted that death percentage of the patient is 11% to 40% due to larungospasm which usually occurs due to "negative pressure pulmonary edema" and therefore it was necessary for the doctor to inform the patient and his family member about the risk and after obtaining consent, start the process of treatment of incision by making opening in the abscess of the tonsil.

Therefore, partly allowing the complaint, the State Commission directed the doctor and the hospital to pay Rs 15 lakh as compensation and Rs 5000 as litigation cost.

The order of the State Commission was challenged before the top consumer court and while considering the matter, the NCDRC bench observed that the State Commission found that the doctors of the hospital had not committed any negligence in treating the patient and the death occurred due to sudden contradiction in the muscles of the patient. "The complainants have not filed cross appeal as such it will not be proper to re-examine the evidence in this respect and record any contradictory findings," observed the NCDRC bench at this outset.

While considering the observation of the State Commission that proper consent was not taken, the NCDRC bench noted that in his answer of Interrogatory No. 15, Dr. Garg stated that as a protocol for OPD procedure, written consent was not taken but procedure/risk was explained to the patient. In the Patient Progress Note & Doctors Instruction paper, on 17.05.2014 at 10:00 am, noted as “XST done (Neg). Procedure/risk explained to the patient”.

At this outset, the top consumer court noted,

"Dr... Garg admitted that written consent was not taken either from the patient or his family member. From medical literature it is proved that mortality rate was 11% to 40% due to laryngospasm which usually occur due to “negative pressure pulmonary edema” as such it was necessary for the doctor to inform the patient and his family member about the risk and after obtaining consent, start the process of treatment of incision by making opening in the abscess of the tonsil. Dr... Garg examined the patient on 17.05.2014 at 10:15 hours, in OPD ENT and decided to adopt the process for draining the pus."

"Noting in the Patient Progress Note & Doctors Instruction paper, on 17.05.2014 at 10:00 am, that “XST done (Neg). Procedure/risk explained to the patient” appears to be a subsequent endorsement as at 10:00 am, Dr... Garg, senior doctor of ENT had not decided for draining the pus. Findings of State Commission that the patient and his family members were not informed about the risk nor their consent was obtained, do not suffer from any illegality," further noted the NCDRC bench.

Although the NCDRC bench observed that the State Commission awarded compensation to the patient's family on the lower side, in the absence of cross appeal the top consumer court failed to enhance the compensation.

"So far as the compensation awarded by State Commission, is concerned, in the written reply, the appellants have not disputed the qualifications, income and age of the patient at the time of his death as stated in the complaint. The income of the deceased was proved by filing Income Certificate. Annual income comes to Rs.180000/-. By applying multiplier of 15 in annual income and deducting 25% towards personal expenses of the deceased, loss come to Rs.2050000/-. Constitution Bench of Supreme Court in National Insurance Company Limited Vs. Pranay Sethi, (2017) 16 SCC 680, held that the compensation would be just and fair. It has been further held that if the deceased was below 40 years of age and had fixed salary or in self-employment, then 40% would be added towards his future income. State Commission has awarded compensation on lower side but in the absence of cross appeal we are unable to enhance the compensation," it observed.

To view the order, click on the link below:

https://medicaldialogues.in/pdf_upload/ncdrc-order-220235.pdf