Referring patient to higher centre is not negligence: NCDRC absolves Delhi Hospital, ENT Surgeon

The case concerns a patient who was diagnosed as adenoids with bilateral secretary otitis media, Sinusitis and tonsillitis. The ENT surgeon at Jain ENT hospital performed Adenotonsilliectomy with Bilateral Grommet Insertion on October 2010. The patient was shifted from Operation Theater toward at 10.30 a.m. However, she started coughing problem at 12.30 p.m., therefore, immediately oxygen was given, x-ray was done and the pediatrician was called. The pediatrician examined the child.

It was alleged that the operating surgeon was not careful, therefore, the foreign material entered in the bronchus and lungs which developed aspiration pneumonia of the child. The complainant further alleged that the operation package for Rs 16,920/- was fixed by the hospital, but due to the negligence of the doctor complication arose and the patient was shifted to Babylon and Imperial Hospital. The complainant incurred further expenditure of Rs.28,000/-. Subsequently, the complainant moved the district court.

The District Consumer Disputes Redressal Forum, Jaipur had held the hospital liable for negligence and allowed Rs 28,000/- to the patient.

Aggrieved the hospital filed First Appeal before the State Commission, which was allowed and consequently the complaint filed by the patient's mother was dismissed, who in turn moved NCDRC and filed the instant revision petition.

After hearing both the parties and perusing the entire material on record including the orders by the District and State Commission, NCDRC opined that it is evident from medical record that the ENT surgeon examined patient for the complaints of nasal obstruction. After relevant investigations, he advised adenectomy with bilateral grommet insertion under general anesthesia. He prescribed higher antibiotics. The patient was operated by the doctor after obtaining proper inform consent. It was the case of complainant that there was no Pediatrician in the hospital to handle complication like aspiration. The apex consumer court noted;

"From the medical literature on ENT surgery, post-operative minimal aspiration was a known complication. In the instant case, two hours after the operation child had cough and immediately the treating doctor attended the patient. A call was sent to pediatrician also. The child was administered with Oxygen, IV fluids, the higher antibiotics (injection Angmentin, Amikacin & Cefraxone), and nebulization and thereafter the child was referred to Pediatric hospital."

"It should be borne in mind that referring the patient to higher center is not negligence of treating doctor. In the instant case, the doctor took proper decision. Initially, at 4.00 p.m. the child was taken to Babylon Hospital on 11.06.2010 and treated till 13.06.2010 and discharged LAMA. Thereafter, the child was treated in Imperial hospital for five days and discharged on 18.06.2010. She was treated with antibiotics, vitamins and other medicines and got cured," the Commission added.

It further observed that it is pertinent to note that if the foreign body/material entered into bronchus during the operation the patient would have sever reflx and suffered the respiratory distress immediately. But after the operation the patient was comfortable for 2 hours till 12.30 p.m. After proper treatment as per the reasonable standard, the patient was referred to Pediatric Hospital.

"We do not find any deficiency or negligence in the duty of care of treating Surgeon and the hospital," the court said.

The ENT surgeon and the hospital relied upon the articles namely 'Aspiration Pneumonitis-Mendelson's Syndrome' and 'Common Postoperative Complications'. The court remarked;

" As the revisional jurisdiction of this Commission is limited. Within the meaning and scope of section 21(b), we find no jurisdictional error, or a legal principle ignored by the State Commission as may necessitate interference. It would be apt to rely upon the decision of the Hon'ble Supreme Court in the case of 'Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd."

Subsequently NCDRC absolved the charges against the doctor and the surgeon. It noted;

"Based on the aforesaid discussion, we do not find any merit in the instant revision petition, accordingly it stands dismissed."

To view the original order, click on the link below;

http://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidin=0/0/RP/1252/2019&dtofhearing=2022-08-26