No negligence but incomplete consent form with BLANKS: Doctors Hospital told to pay Rs 3 lakh compensation

New Delhi: Partly allowing a revision petition, the National Consumer Dispute Redressal Commission (NCDRC) has held treating doctors and hospital liable for ‘blanks’ left in the Consent Form by the patient. Pertinent to this, the court directed a private hospital in Kerala to award a compensation of over Rs 3 lakh to a patient on account of the incomplete consent form but held no negligence on part of the doctors for the shortening of patient's right leg due to a post-operative complication.

The case was first brought before the District Consumer Disputes Redressal Forum, Ernakulam in 2006 by a machine operator, who met with a road accident and was diagnosed for fracture of his right leg. He was advised to undergo surgery by putting a screw plate within 24 hours.

Accordingly, he approached the Specialist Hospital wherein the treating doctors suggested to put a weight-bearing on the right leg and it was only after 4 days that the surgery was performed. However, the surgery allegedly led to shortening of his leg by one inch, reacting to which the doctors asked him not to bother about the defect.

The patient then consulted doctors of Amrita Hospital, Ernakulam, where the doctor opined that the length of the right leg ought to have been corrected by the hospital and the doctors during the surgery earlier. He sought further expert opinions that pointed out that at the time of surgery the length of the right leg was not corrected and this caused bone overlap in the right leg.

Thereafter, the patient filed a complaint with the district forum alleging that due to the careless and negligent act of the hospital and the doctors, he became handicapped and demanded a compensation of Rs 20 lakh.

However, the district forum after considering the expert evidence on record dismissed the complaint. The case was further taken to the Kerala State Commission, however, the complaint was dismissed once again.

Aggrieved, the complainant moved with the NCDRC, submitting that he was never informed that there could be shortening of his leg and that it was a post-operative complication and had he been informed he would not have decided to go for ‘Surgery’.

The complainant submitted;

"..the Opposite Party had abstained from making any statement on oath and that before surgery no informed consent was taken."

On the other hand, the hospital drew the commission's attention to the treatment certificate in which it is clearly stated that on 02.03.2006 reconstruction nailing of the right femur was done and the patient was crutch walking and he was advised knee mobilization and ‘Q’ ceps exercises. It contended that

"..after the surgery when the patient was shifted to ICU on 03.03.2006 he had developed a urinary infection and, therefore, urinary catheter was inserted to mobilize the Patient. The Patient was also put on physiotherapy, knee mobilization and non-weight bearing crutch to enable walking."

"...at the time of discharge the patient was stable and he was informed that immobilization causes wasting of muscles and that physiotherapy was required to regain muscle tone and strength and that there was no negligence on the part of the treating doctors and they followed the standard protocol and the surgery was a success," the contention added.

The hospital further mentioned that the 1.5 cm shortening persisted only because the patient was not doing physiotherapy properly and that the X-ray showed solid union of the fracture.

The counsel further highlighted the Interrogatories in which the Expert Doctor i.s. Dr Rajappan Sreenivasan, Orthopedic Surgeon of AVM Hospital, Charthala had deposed that minimum shortening of 2 cm can occur even if the fractured bone is fixed in the correct position; that if the shortening is above 4 cm, depending upon many factors limb lengthening can be considered; post-operative known complications include non-union or a mal-union of bones and angular deformity and rotational deformity including neuro-vascular complications.

"A perusal of the Interrogatories also shows that the surgery that was conducted is closed reduction and reconstruction nailing which is a standard protocol and standard procedure for patients suffering from such fractures. The X-ray also shows that there was a good union of bones which was not rebutted by the complainant, " the commission noted.

Based on the material on record, the commission agreed with the submission by the hospital that for comminuted Subtrochantic fracture of the right femur the standard treatment is closed reduction and reconstruction nailing which the Respondents had adhered to. Therefore, it was of the considered view that there was no negligence per se in the conduction of the surgery.

On a pointed query from the Bench with respect to the informed consent, the complainant drew the commission's attention to the Consent Form, which showed that all the six risks that could occur were left blank. Therefore, the contention of the hospital that all risks were explained and informed consent was taken, is unsustainable. The commission observed;

"We find the Respondents negligent only with respect to not having obtained informed consent and explaining the known complications to the Complainant. At the cost of repetition admittedly, as deposed by the Treating Doctors themselves, shortening of the leg is a known complication. If that may be so it ought to have been explained to the Complainant prior to the surgery. Even otherwise in the informed consent, all risks are left ‘BLANK’, which is contrary to the ratio laid down by the Supreme Court."

Consequently, the commission partly allowed the revision petition and set aside the order of the State Commission while noting that there was negligence on the part of the Hospital and the Treating Doctor only to the extent indicated above i.e. not having explained the known complications to the complainant.

The commission while directing the hospital to pay a compensation of Rs. 3,00,000/- to the Complainant along with costs of Rs. 25,000/- held;

"We are of the considered view that the Treating Doctors (Respondents No. 2, 3 and 4) cannot be held to be liable for any ‘blanks’ which have been left in the Consent Form as we have held that there was no negligence per se in the very conduction of the surgery. At the cost of the repetition only negligence is with respect to not explaining the known complications of the Complainant, for which Act, we held Hospital alone liable."

"This Revision Petition is allowed in part to the extent indicated above. Time for compliance within four weeks from the date of receipt of the certified copy of the order failing which it shall attract interest @ 8% p.a. from the date of the filing of the complaint till the date of realization," the commission added.