Surgeon, Anaesthetist Move NCDRC after State Commission Holds them Guilty of Medical Negligence and Slaps Rs 33.7 lakh compensation

New Delhi: Two doctors have approached the National Consumer Disputes Redressal Commission (NCDRC) after being held guilty by Gujarat State Consumer Court for medical negligence while conducting laparoscopic surgery on a patient, who died afterwards. The top consumer court in New Delhi admitted the appeal on Thursday. 

Gynecologist and laparoscopic surgeon Dr. Kalpana Bhatt and the Anaesthetist Dr. Rakesh Doshi have challenged the March order by the State Commission, which had directed the doctors to pay Rs 33,70,000 as compensation to the patients.

Medical Dialogues had earlier reported about the case that goes back to 2014, the patient had been suffering from abdominal pain and for this she had consulted Dr Bhatt. After examination, a tumor was discovered and the doctor had advised removal of tumor through laparoscopy.

On January 2, 2015, the operation was conducted and the condition of the patient became serious during the operation. The complainant, husband of the patient was informed that the patient had suffered shock during the procedure and it caused serious problems to her heart and lungs requiring shifting of the patient to the Critical Care Unit.

It was alleged that during procedure, patient had become unconscious and was requiring support of ventilator. Finally, the doctors advised shifting the patient to Sterling Hospital at Rajkot. During all the efforts, the patient died the next day.

The discharge summary issued by Surgeon showed that there was anesthetic problem during the procedure and as a result of it, the patient went into shock. The Complainant alleged that when the patient had encountered problem during surgery, she should have been transferred to Critical Care Unit immediately. However, the doctors killed time in trying through general surgery. Alleging gross negligence against the treating doctors, the Complainant approached the State Consumer Court and filed a complaint seeking compensation.

On the other hand, the doctors denied negligence on their part and submitted that all pre-operative and post-operative checklist had been followed and after obtaining informed consent, the patient had been treated as per standard medical practice.

The surgeon submitted that the patient had developed pulmonary edema when the tumor was removed from bed through laparoscopic procedure, which is a known "complication" in laparoscopic surgery. Despite giving best possible treatment and medical assistance, the patient could not be saved.

Further, the doctor informed the State Commission that the patient had tumor in the broad ligament of uterus and to confirm it Color Doppler was also done and the report revealed that the tumor was non-cancerous. However, since it was painful to the patient, it was decided to remove the same. 

The doctors also submitted that live demonstration of surgical procedure was arranged so that relatives can see the entire procedure even outside the theatre. However, just after the tumor was dissected out of bed, patient developed pulmonary edema. It was argued by the doctors that when known complication occurs, Surgeon cannot be made liable.

While considering the matter, the State Commission opined

"Ordinarily, it is the complainant who has to prove his case of negligence with all evidences. But the facts mentioned herein above categorically suggest that incidence has taken place inside the operation theatre where complainant cannot have any access. In these circumstances, the explanation as to happening of events inside the theatre must come from the persons who are in possession of personal knowledge as to facts. It can be seen from the overall view of the facts that at relevant point of time (i.e. during surgery) only surgeon and anesthetist were in charge of treatment apart from the assisting staff."

Referring to the Discharge Summary given by the Surgeon, the State Consumer Court noted that "severe Pulmonary edema took place" immediately after the tumor was removed from the bed. The Discharge Summary further categorically mentioned that the surgeon was informed prior to removal of the tumor that the patient had developed ETCO2 level and she was requested to stop surgery.

At this outset, the bench observed, "Dr. Doshi, in his reply said that when he saw an increased level of ETCO2, he had requested he Surgeon to stop surgery. Thus, facts that can be said proved is problem of ETCO2 observed first and as a result thereof “Pulmonary edema” took place. Unless it is shown that increase of ETCO2 has any direct nexus with removal of the tumor from bed, it cannot be said pulmonary edema had taken place because of known complication. If increase of ETCO2 is not treated timely, it leads to Pulmonary edema as it mentioned in the medical literature which will be discussed herein after. It is in this circumstance, “Pulmonary Edema” caused to patient not because complication of laparoscopy surgery but because of no timely treatment to ETCO2 which is an independent cause. Thus, anesthetist is duty bound to give a plausible explanation for the occurrence of increase of the ETCO2 level and timely treatment for the same."

The State Consumer Court also referred to study material titled “ Carbon Dioxide Embolisms during Laparoscopic Surgery”, which opines that "Anesthesia providers play a crucial role in prompt recognition and treatment of carbon dioxide embolisms to provide life-saving measures to patients undergoing laparoscopic surgery. Communication between the anesthesia provider and the surgeon is an important step providing prompt, efficient, and safe interventions to adequately resuscitate a patient suffering from a carbon dioxide embolism. If left unrecognized and untreated, carbon dioxide emboli can have devastating effects, including death."

Discussing the role of the anesthetist, the commission observed that Dr. Doshi stated in his reply that “during intra-operative period, patient developed Hypertension which was controlled with Inj. Nitroglycerine infusion at the rate of 5 microgram / minute as continuous IV infusion. Then patient’s BP came to 130/84 mm of hg. After enucleating suddenly patient developed Hypercapnia and ventilator settings suggestive of high inspiratory pressure so the surgeon was asked to stop surgery and remove the Pneumoperitonium so CO2 insufflations stopped.”

"All these admissions on the part of opponents suggest that CO2 embolism had taken place is also established. As it mentioned in the aforesaid literature, CO2 embolism starts with beginning when procedure starts with placement of veress needle. It is therefore necessary for the Surgeon and Anesthetist to prove on record that before entering the veress needle all reasonable care and caution was taken regarding confirmation of site where it was to put. To prove this fact there is no evidence except bare statements that they followed standard line of treatment. Obviously, these facts were only within the personal knowledge of the opponents and despite that none of them has proved it through corroboration that they have taken such care. Thus, the opponents have failed to adduce best available evidence to discharge their burden," the Commission observed at this outset.

"Merely because “known complication” has taken place, it cannot be said responsibility of the treating doctors ceases. There are ways and measures to meet with eventual condition but doctor must come with true facts that these steps have been taken and despite that this has happened. Surprisingly, none of the opponents have produced on record any of their case papers," it further noted.

"The anesthetist, in his reply narrated facts but to support those facts, no documents have been produced. Being anesthetist, he is supposed to prepare a note regarding the actions taken during surgery. However, no such anesthetist’s note have been produced on record and therefore presumption also can be drawn that note is suppressed for the reasons best known to them," the Commission observed.

The State Consumer Court further noted that Carbon Dioxide Embolism is subject matter of anesthetist to take care of. However, there was nothing on record to give complete accounts of events from the anesthetist. 

"In absence of any such information it cannot be believed that he acted diligently just because he states on oath. Having accepted the patient for treatment, it is for the doctor to explain what preventive actions have been taken using reasonable “foresights” to minimize the effects of the known complications. The above literature also canvassed that presence of another anesthesia provider in the room all times to encounter Carbon Dioxide Embolism. In the instant case, no other anesthetist was present. Therefore this is a fit case, where presumptions can be made for absence of care on the part of doctors applying the aforesaid rule of “Res Ipsa Loquitur”," the State Consumer Court opined.

Holding the surgeon and the anaesthetist guilty of medical negligence, the Commission had observed,

"Thus, the doctors failed to convince this Commission that diligent efforts have been made during treatment and therefore I have no hesitation in holding that Surgeon and Anesthetist are liable for not providing efficient services to the patient Joshnaben. Their action lead to irreversible condition of patient and died on next day suggests that it is direct nexus with the cause of death of patient."

With this observation, the top consumer court directed the doctors to pay Rs 33,70,000 compensation to the Complainant along with interest at the rate of 10% from the date of complaint in 2015.

As per the latest media report by Indian Express, now the doctors have challenged the order before the NCDRC bench, which has admitted their appeal on Thursday. In their appeal, the doctors have submitted that the State Commission erred in holding them guilty of medical negligence.

They claimed that the State Consumer Court had passed the order "only on sympathy grounds" and also submitted that the State Commission have no expertise in the field of medical science and the Commission should have appointed a panel of medical experts to provide assistance to the Commission to arrive at a conclusion. The doctors argued that if such a panel had been formed, they would have been exonerated from the charges of medical negligence.

Further, the doctors have submitted that the State Commission did not consider that “a complication by itself does not constitute negligence” and also the fact that there is a “big difference between an adverse or untoward event and negligence”, and that there’s a “growing tendency to accuse the doctor of an adverse or untoward event”.

“A medical professional cannot be held liable simply because things went wrong from mischance or misfortune,” stated the appeal.

In their plea, the doctors have further relied on medical literature suggesting that there is risk associated with laparoscopic surgery and acute pulmonary edema after carbon dioxide embolism during Laparoscopic Ovarian Cystectomy as was the case with the deceased patient, who ultimately died.

While commenting on the doctors' appeal before the Apex Consumer Court, their counsel Advocate Nimit Shukla added that the appeal will now be heard on merits.

To read the State Commission's order, click on the link below:

https://medicaldialogues.in/pdf_upload/state-consumer-court-order-209664.pdf

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