Delhi: Noting that the giving of anaesthesia medicine to the patient without competence in the same shows the carelessness and negligence of the doctor, the National Consumer Disputes Redressal Commission (NCDRC) has directed a treating doctor to pay a sum of Rs 10 lakh to the complainant.
The bench presided by Hon’ble Justice D K Jain and comprising Hon’ble M. Shreesha as a member took cognizance of the petition filed by one Ramadhar Singh in which he alleged medical negligence on part of the treating doctor who attended to her wife Bachhan Devi.
The case relates to Bachhan Devi, a resident of Gaya, Bihar, who was taken to Dr Sudhir Mohan Kant with complaints of uterus bleeding and high blood pressure. The doctor after investigations advised Total Abdominal Hysterectomy (TAH) and consequently patient underwent the same on 14.08.2005 at about 12-00 noon. At that time, she had difficulty in breathing and an oxygen pipe was affixed.
The Complainant, her husband, Ramadhar, stated that on 15.08.2005, the patient remained in comatose and when he informed the same to Dr Kant, he was told to consult Dr P.K. Sinha, who demanded 1,000/- towards fees and treated the patient at the Clinic itself, but the patient did not regain her senses till 19.08.2005.
Later that day, Dr Kant called Dr Sharda Nand Sinha, who advised C.T. Scan of the Brain. The report showed that the patient did not regain her senses only because more than the prescribed limit of Anaesthesia was administered.
Dr Sharda Nand Sinha referred the patient to Rajeshwar Hospital Patna, where an ultrasound abdomen was conducted and it was found normal. Thereafter, she was referred the patient to Dr Rohatgi of Chand Hospital, who treated the patient and in his prescription, he clearly wrote that large quantity of ‘Ether’ was used.
Till 09.10.2005, the patient remained under the treatment of Dr Rohatgi and his medicines continued. With no respite the patients attendant then brought her back to Ranchi for treatment.
Alleging negligence, a complaint was filed by the patient’s husband. It was averred by the complainant that the patient was not capable of sitting or standing or even recognizing any person and that liquid food had to be given through a pipe. A catheter pipe was also fixed for the purpose of urination.
It was alleged that Dr Kant did not take any precautionary measures of conducting pre-investigative tests with respect to blood, urine, blood sugar etc., prior to the performance of the operation and also used large quantities of Ether on account of which the patient remained in a lifeless state. The patient was not in a fit condition for undergoing a Surgery, yet, Dr Kant did not take this into consideration and performed the operation, he added.
In his defence, Dr Kant claimed that all the investigations were done before the operation and Dr M K Gupta, Anaesthetist took a brief history of the patient, examined her thoroughly and went through all the pathological reports prior to the operation.
It was pleaded before the court that one hour prior to the surgery; Dr Kant administered Atropine injection to the patient along with Tetovac and Taxim intramuscularly. Thereafter, Dr M.K. Gupta administered O 2 -N 2 O gas for anaesthetizing the patient with pulse oxy-meter monitoring, which a prudent Doctor uses for the purpose of TAH (Total Abdominal Hysterectomy) acceptable to the medical practices.
The doctor also claimed that he had examined the patient, he found her eyes open and she was drinking water.
During the hearing at the forum, he was awarded Rs 10 lakh as compensation on July 11, 2007. However, the compensation was brought down to Rs 4 lakh in 2011, when the doctor appealed against the order with the state commission.
The State Commission, while concurring with the finding of the District Forum regarding the aspect of the ‘Medical Negligence’ reasoned as follows:-
“All the medical prescriptions indicate to the fact that the patient, who came in full consciousness, did not regain her consciousness after the operation and never recovered of that situation till her death.
We do not find any noting of the history of the patient or pathological test prescribed by the doctor before a surgery, which is an essential and important factor in a case of major surgery. In view of the above observation, we find that the appellant-doctor failed to take pre-operative measures and precaution so as to ascertain the amount of dose rather failed to assess the tolerance capacity of the patient to the anaesthesia.”
“…..We agree to the view taken by the learned District Forum that the appellant was negligent in providing medical services to the patient…. Having held the appellant guilty of medical negligent, the compensation awarded by the District Forum seems to be on higher slab, which needs to be reduced.”
Both the parties found the commission’s verdict unsatisfactory further to which they preferred revision of their petitions in 2012 respectively.
After going through the entire case, the court quoted the Hon’ble Supreme Court’s dialogue about the ‘duty to treat’ and the ‘duty to take care’ of a doctor towards his patient which says:
“When a physician agrees to attend a patient, there is an unwritten contract between the two. The patient entrusts himself to the doctor and that doctor agrees to do his best, at all times, for the patient. Such doctor-patient contract is almost always an implied contract, except when written informed consent is obtained. While a doctor cannot be forced to treat any person, he/she has certain responsibilities for those whom he/she accepts as patients.”
The court noticed that a perusal of the treatment record did not anywhere state the pre-investigative tests which were conducted prior to the surgery, except for monitoring the Blood Pressure and Pulse rate, especially when the patient had approached the Doctor with bleeding P.I.V. (Menorrhagia).
“ In fact the C.T. Scan of the Brain conducted on 19.08.2005, five days after the date of the surgery, clearly shows that the patient was unconscious since the date of surgery. It is the case of the treating Doctor that this C.T. Scan did not evidence any lesions and also was within normal limits. However, the fact remains that the patient never recovered from the surgery and never regained consciousness. The ultrasound of the whole abdomen done on 31.08.2005 also showed normal results. In fact this establishes that the patient never had any abnormalities either in the brain or in the abdomen to be considered a high-risk patient.”
“The E.E.G. conducted on 18.10.2005, advised by Dr K. K. Sinha showed abnormality suggestive of “diffuse encephalopathy involving entire brain”. Therefore, it can be safely construed that it was only because of the complications that arose subsequent to TAH that the patient had never recovered despite the best efforts made by several aforenoted Doctors,” the bench added.
While noting that the ‘duty of care’ as laid down by the Hon’ble Apex Court had not been undertaken in this case and the court held that the doctor did not perform his duty which was expected from him under the common Medical Parlance.
“We are of the considered view that this amounts to negligence. Moreover, the operation notes do not evidence either the notings by Dr. M.K. Gupta or the dosage of Anaesthesia that was given.”
In addition to their observation, the bench asserted,
“Now the question is that whether the patient was given anaesthesia medicine ether by the OP during the course of operation. The averments of the OP are that this ether anaesthesia medicine was not given by him but the same was given by Anesthetist Dr. M.K. Gupta of Dhanbad by calling him…….There is no dispute on the point that in the town there are some other Anaesthesia Doctors. What was the reason to call Dr. M.K. Gupta from Dhanbad? On this point the OP has not given any satisfactory explanation. From the Affidavit of Dr Gupta that he has not clearly told that he had given Anaesthesia to the patient. The Complainant and witnesses of the Complainant have not admitted that DrGupta was present in the clinic of the OP at the time of operation. The mention of Dr. M.K. Gupta in the slip of OP are not present. Therefore, on the basis of above factor we come to the conclusion that the OP has used Dr. M.K. Gupta in his defence.”
“Actually, in fact, the Anaesthesia Ether was given by the OP himself. This is not the case of the OP that the OP is an Anaesthesia specialist and is competent to give Anaesthesia medicine. In these circumstances, the giving of anaesthesia medicine to the patient shows the carelessness and negligence of the OP. From the perusal of slip of the OP, it is found that before the operation, the OP did not get the patient to go through all pathological tests and without any pathological report this operation was done,” the court noted.
Finally, the bench in its conclusion stated that the petition preferred by the complainant is allowed and hereby the amount of compensation had been enhanced to 10, 00,000/- as awarded by the District Forum, out of which, 3,00,000/- shall be paid by the Insurance Company and the balance amount shall be paid by the treating doctor, within eight weeks from the date of receipt of this order, failing which, the amount shall attract interest @9% p.a. from the date of filing the Complaint, till the date of realization, together with costs of 50,000/-.”