Doctor operates on wrong knee, Chhattisgarh HC orders fresh probe

Bilaspur: In a case of knee surgery, the Chhattisgarh High Court recently ordered a fresh probe into the allegations that the hospital operated on the wrong knee.

The HC bench comprising Justice Parth Prateem Sahi issued this direction after noting that the inquiry into the allegations of medical negligence was conducted by an improperly constituted committee.

"Grievance of petitioner in this petition is that inquiry report is submitted by the committee of four members, who all are doctors, and one Dr. ***, Assistant Professor, Surgery Department, CIMS, Bilaspur has been appointed as Chairman of committee. Rule 18 of the Rules, 2013 prescribed the constitution of a committee headed by an officer not below the rank of Deputy Collector and include specialist doctor of discipline. From perusal of inquiry report, Annexure P-1, it is clear that the constitution and composition of the Committee which has conducted the inquiry on the complaint of petitioner, is not as provided under Rule 18 of the Rules, 2013 and therefore, inquiry report submitted by the Committee which is not constituted in accordance with provisions of Rules, 2013 cannot be considered to be a valid report on complaint submitted by petitioner and, hence, in opinion of this Court, this inquiry report is having no force in eyes of law," observed the Court.

"Indisputably, complaint was lodged by petitioner to the Collector, who is Supervisory Authority under the Adhiniyam, 2010 and the Rules framed thereunder, i.e., Rules, 2013. From report it is not appearing that Committee was constituted by Supervisory Authority and therefore, I find it appropriate to dispose of this writ petition at this stage directing Supervisory Authority/Collector to consider complaint of petitioner afresh and constitute a committee in accordance with provisions contained in Adhiniyam, 2010 and Rules, 2013," ordered the Court.

The case concerned the petitioner, who had been suffering from knee joint pain and was treated earlier at different hospitals. However, when her ailment and sufferings could not be cured properly, she approached the first Hospital and on aid, advice and recommendation made by the doctor at that hospital, the petitioner got admitted to the treated hospital, where she was operated.

It was submitted by the petitioner's counsel that even though she was having difficulties with her left knee, her right knee was operated and based on the objection raised by her, the left knee of the patient/petitioner was also operated.

Following this, a committee was constituted to inquire into the petitioner's complaint. After conducting an inquiry, the committee submitted its report. However, he submitted that the constitution of said Committee is not as per provisions of the Chhattisgarh State Upcharyagriha Tatha Rogopchar Sambandhi Sthapanaye Anugyapan Adhiniyam, 2010, in particular Section 18, which envisages that a complaint so received shall be examined through a committee formed by the Supervisory Authority. The chairperson of the said committee shall be of a rank of higher or equivalent to a Deputy Collector.

The counsel for the petitioner submitted that the inquiry report is not headed by an administrative officer like the Deputy Collector. Therefore, the inquiry which is said to be conducted on the petitioner's complaint, is not in accordance with the provisions and procedures as prescribed under Adhiniyam, 2010.

It was further submitted that in the inquiry report, the committee did not deal with any of the allegations that were made against the first hospital and its doctor and the treating doctor. The counsel argued that from the documents dated 04.09.2023 issued by the first hospital, the sanction letter dated 5.9.2023 issued by ESIC and report issued by the second/treating hospital, it appeared that the petitioner's left knee was to be treated. However, the committee allegedly overlooked the said fact and erronously opined that there was no medical negligence on the part of doctors.

The counsel for the petitioner explained how the petitioner was suffering great hardship and mental agony due to medical negligence and therefore, a prayer was made before the HC bench seeking a direction to conduct an inquiry against the erring doctors and to take appropriate action against the first and second treating hospitals, and also grant appropriate compensation for the said medical negligence.

On the other hand, the counsel for the hospitals, the counsel for State government authorities, including the Director of Medical Education (DME), Commissioner of Medical Education, etc. submitted that after the receipt of the complaint, it was inquired by a team of four doctors and they submitted their report that the petitioner was suffering from problems in both of her legs and operation of both legs was done after consent given by the patient/petitioner and her family members.

It was submitted that from the report, it was apparent that grievance, as raised by the petitioner, had been properly considered and dealt with. Meanwhile, the counsel for the first hospital made a further submission that there was no pleading as to violation of provisions contained in Adhiniyam, 2010 and Rules, 2013 as argued by learned counsel for petitioner.

After considering the arguments, the HC bench addressed the objection raised by the counsel for the first hospital regarding there not being any specific pleading or relief for reenquiry and therefore no relief for a re-inquiry can be granted.

At this outset, the HC bench observed, "Petitioner is a patient, who took treatment from concerned hospitals, i.e., respondents No.10 and 9, and immediately after operation allegedly of wrong leg, has forwarded an application in form of complaint to respondent No.4-Collector who is competent authority being Supervisory Authority under Adhiniyam, 2010 and Rules, 2013. Therefore, submission of learned Senior Counsel for respondent No.10 that no relief can be granted is not sustainable."

"Pleadings made in writ petition that petitioner had taken consultation and treatment from respondents No.10 and 9 is not in dispute. Operation of both knees of petitioner after her admission with respondent No.9 is also not in dispute. Grievance of petitioner primarily is that her right knee was also operated in respondent No.9 hospital, in which there was no sufferings and ailment, regarding which she made a complaint to Collector. Petitioner submitted an application/complaint dated 6.10.2023 and reminder letter is also written by petitioner forwarded through registered post dated 26.12.2023. Submission of learned counsel for petitioner is that complaint submitted by petitioner is to be considered in accordance with provisions as provided under Adhiniyam, 2010," noted the High Court bench.

Taking note of the definition of "Supervisory Authority", "Clinical Establishment", "Hospital" under the Adhiniyam 2010, the court observed, "Section 13(B) of Adhiniyam, 2010 talks of raising grievance by a person aggrieved by act of willful negligence by Nursing Home/Clinical Establishment in manner as prescribed under Section 1 of Chhattisgarh Medicare Service Persons and Medicare Service Institutions (Prevention of Violence and Damage or Loss to Property) Act, 2010 (for short ‘the Act of 2010’). The Act of 2010 came to be amended vide Act of 2016 and accordingly, Adhiniyam, 2010 is governed by Chhattisgarh State Upcharyagriha Tatha Rogopchar Sambandhi Sthapanaye Anugyapan Adhiniyam, 2010 (for short ‘Niyam, 2010’). ‘Supervisory Authority’ is defined under Rule 3(1)..."

Under the above mentioned Rule 3(1), 'Supervisory Authority' has been defined as "The District Collector of the concerned district shall be the Supervisory Authority under these rules and shall be assisted by a District Committee in discharge of the function assigned to it under the Act."

"District Collector of concerned district has been nominated as Supervisory Authority and Rule 4 talks of functions of Supervisory Authority. Rule 4(f) provides for functions of Supervisory Authority to investigate complaints related to willful (shallful) negligence with the provisions of the Act, as required under Rule 13 and 14 of the Act along with other functions as provided under Rule 4. Rule 18 deals with procedure of receipt and registration of complaint (grievance redressal) at level of Supervisory Authority. Rule 18(6) envisages that complaints received in respect of Chhattisgarh Upachar Tatha Rogopachar Anugyapan 2013 shall be examined through a committee formed by Supervisory Authority of concerned district. It further envisage that chairperson shall be a higher rank of Deputy Collector and shall include specialist doctor of concerned discipline," it also observed at this outset.

Accordingly, the bench took note of the irregularities in the constitution and composition of the committee, which conducted the inquiry, and held that the inquiry report submitted by the Committee which is not constituted in accordance with provisions of Rules, 2013 cannot be considered to be a valid report on complaint submitted by petitioner and, hence, in opinion of this Court, this inquiry report is having no force in eyes of law.

Therefore, the bench ordered a fresh probe stating, "For foregoing discussion, this writ petition stands disposed of with a direction to respondent No.4 to consider complaint of petitioner afresh and to get it inquired in terms of provisions of the Adhiniyam, 2010 and Rule 18 of Rules, 2013."

At this outset, the counsel for the first hospital submitted that as the Court has directed a re-inquiry into the complaint of the petitioner, Collector cum Supervisory Authority (Respondent No. 4) be directed to grant an opportunity of hearing to the respondents before making any recommendations in the inquiry report or at the time of conducting the inquiry. Noting that this submission was not opposed by the petitioner's counsel, and noting that Section 13 (c) of the Adhiiyam, 2010 specifically provides for an opportunity to be granted to both sides, the HC bench ordered the following:

"In view of aforementioned facts, it is directed that the Committee to be constituted by Supervisory Authority will grant opportunity of hearing to both sides during inquiry. Respondent No.4 is directed to get inquiry completed expeditiously, preferably within a further period of four months from date of receipt of this order strictly in accordance with law. It is also made clear that this Court has not expressed any opinion on merits of claim of either party...Writ petition stands disposed of with above observations and directions."

To view the order, click on the link below:

https://medicaldialogues.in/pdf_upload/chhattisgarh-hc-wrong-leg-operated-313461.pdf

Also Read: Andhra Pradesh Doctor, Nurse Suspended After Surgical Blade Left Inside Patient