Brain injury after endoscopic nasal polypectomy: Hospital, ENT specialist slapped Rs 10 lakh compensation
New Delhi: The National Consumer Disputes Redressal Commission (NCDRC) has directed a Rajasthan-based hospital and its ENT specialist to pay Rs 10 lakh compensation to a patient, who suffered a brain injury after undergoing an endoscopic nasal polyp surgery.
The Commission held that before conducting the surgery, the doctor and the hospital should have insisted on conducting a CT scan.
The history of the case goes back to 2010 when the complainant/patient was suffering from nasal problems, including discharge and obstruction, and underwent endoscopic nasal polyp surgery performed by an ENT specialist at a Udaipur-based hospital.
It was submitted that the surgery was done without conducting a CT Scan of the Paranasal Sinuses, which is a mandatory pre-operative investigation to determine the exact extent and location of the nasal polyp. The complainant also alleged that the hospital record falsely mentioned that "CT Scan PNS advised but patient refused", which was an afterthought and written later in different ink and different handwriting to cover up the doctor's negligence.
Immediately after the surgery, the patient began to suffer from severe headaches and continuous pain. A CT Scan performed on 12.04.2008 at the same hospital revealed that she had suffered a Subarachnoid Haemorrhage (SAH) — a serious condition involving bleeding in the brain. Despite this, she was kept in the hospital and treated only with routine medicines. Further CT scans were conducted on 16.04.2008, 18.04.2008, and 21.04.2008, showing no improvement in her condition.
Since the patient's health continued to deteriorate, her family sought the opinion of another specialist, a neurologist, who advised an MRI scan. The report showed that due to a bony defect at the base of the skull, a part of the brain had herniated into the nasal cavity — a condition known as encephalocele — caused by surgical injury during the nasal operation. Immediately after this, the patient took discharge and went to Ahmedabad, where another doctor performed brain surgery.
In the consumer complaint, the complainants alleged that because of the negligence of the doctor in performing the surgery without a CT scan and without proper care, the complainant suffered permanent brain injury, underwent multiple surgeries, and faced prolonged physical and mental suffering. Her daily life was severely restricted, as she was advised not to drive, not to go near fire or cold water, and to avoid heights and strenuous activity.
On the other hand, the hospital and the ENT specialist submitted that the patient was properly examined, diagnosed, and treated as per the standard medical procedure. It was asserted that on 10.04.2008, the complainant was advised to undergo a CT Scan of Paranasal Sinuses (PNS) before surgery, but she and her father refused to get the scan done, despite being informed about its importance. They maintained that there was no negligence during or after the procedure.
Regarding the patient's condition after the surgery, the treating hospital and doctor argued that the Subarachnoid Haemorrhage (SAH) detected later was a rare and known complication of endoscopic nasal surgery, which can occur and be seen as a complication even in the absence of any negligence and such occurrence of complications can not lead to the inference or conclusion of any negligence, particularly when the surgery itself went off uneventfully and successfully.
While considering the matter earlier, the State Consumer Court of Rajasthan had held that the doctor had failed to exercise due care and caution expected of a qualified ENT specialist, and that such omission directly led to the complications suffered by the complainant, including Subarachnoid Haemorrhage and subsequent neurological damage. It had also held the Hospital vicariously liable and directed the hospital and the doctor to pay Rs 17,34,284 compensation.
Challenging the order, the doctor and the hospital approached the Apex Consumer Court. They relied on the enquiry report on the complaint prepared by Dr. F. S. Mehta, Professor and Head of the Department of Surgery; Dr. Tarun Gupta, Professor of Neurosurgery; and Dr. H. S. Bhuie, Associate Professor in the Department of ENT, which had held that there was no medical negligence or breach of the duty on the part of treating doctors at GMC Hospital.
The doctor and the hospital submitted that the Rajasthan Medical Council had also held that no gross negligence could be found on the part of the medical team. However, it had warned the doctor to be more vigilant while doing surgery.
While considering the matter, the NCDRC bench perused the medical records and found that the patient had a history of nasal obstruction and was diagnosed with nasal polyp. As per the appellants, a nasal polypectomy was conducted.
It noted that the State Commission came to a factual finding that the CT Scan should have been insisted and report obtained before conducting the surgery and that surgery without such report, based merely on clinical examination, is an instance of medical negligence. The State Commission, as per the appellants, erred in equating FESS (Functional Endoscopic Sinus Surgery), for which only the literature mandates pre-surgery CT Scan, with nasal polypectomy, for which there is no such mandatory requirement.
At this outset, the NCDRC bench observed,
"However, though the appellants have insisted that the literature relied upon is from a medical blog and is unauthenticated, the appellants have not shown through any contrary reliable material to establish that the said literature is false or that the same is contrary to any authenticated material. The content of the literature, even though from a medical blog, has remained uncontradicted. In our opinion, after considering the essence of the literature relied upon by the State Commission, though, the names of the surgery are different, and to that extent there is inaccuracy in the State Commission’s observations, there is no scientific or technical material brought on record by the appellants to establish that the two procedures are so materially different that the caution to be exercised through pre-operative CT Scan is avoidable or is superfluous, in polypectomy, more so, when indisputably the surgery is not only on a 16 year old young child, but is also at or about a spot very near and adjacent to the brain’s periphery. After considering the totality of facts and circumstances, we are of the considered opinion that the State Commission’s findings, which are echoed by the State Medical Council’s order dated 21.02.2011, are well-founded."
"We are inclined to agree with the State Commission therefore that the delicate and precision surgery of polypectomy, which admittedly has likely, though rare, serious complications of SAH, brain herniation and consequent coma, paralysis or even death, required equally higher degree of caution, care and fore-sight in ensuring pre-operative CT Scan, which would certainly have ensured better pre-comprehension of condition of polyp, pre-existing conditions of undisplaced fracture if any and patient-safety including preparedness for and avoidance of complications. There was admittedly no emergency condition also requiring the surgery without CT Scan. The attempt at manipulation of records itself, which we agree with the state commission to have been so evidenced on records, in our opinion, is a serious infraction of ethical medical conduct of the Hospital which is resorted to only to riggle out from the findings of medical negligence in not ensuring the pre-operative CT Scan. Apart from this, such attempt is also an evidence of realisation of the hospital/doctor of lapse of not obtaining the pre-operative CT scan report and hurriedly conducting the surgery which is not shown to be such an emergency requirement," it further noted.
The Commission also opined that once the CT scan was considered necessary and prescribed as contended by the hospital/doctor, they could not and should not have proceeded for the surgery which was having likelihood of complications of SAH, and the avoidance of which substantially could have depended on the result of the CT Scan on a 16 year old young child patient. In that scenario, the doctor had the option of explaining the need of the CT Scan and insisting as was done on 12.04.2008.
"We also find no merit in the contentions on behalf of the hospital that the literature relied upon by the complainant and by the State Commission is unauthenticated because no substantive contrary medical literature was placed on record by the hospital/doctor. The State Commission rendered a factual finding that the pre-operative CT scan could have guided the surgeon in duly estimating the degree of the growth and absence of such knowledge due to absence of CT Scan report only led to SAH necessitating further neuro-surgery. We also find that the State Commission validly relied on the findings of the State Medical Council dated 21.02.2011. While we do note that the reports of the Committee of RNT Medical College dated 30.03.2010 and of the Internal Enquiry Committee of the appellant hospital have found no medical negligence, and further, that the RNT Medical College committee has also concluded that the pre-operative scan would have made no difference to the surgery or further line of treatment, we still find merit in the contention of the complainant-respondent that only after considering these “detailed” reports, the Rajasthan Medical Council has deemed it appropriate to issue a warning to Dr. *** to be “more careful and vigilant while doing surgery”" observed the Apex Consumer Court.
"We are of the opinion that no error can be found in the order of the State Commission in placing reliance on the order of the Rajasthan Medical Council. While we agree with the principle in contention raised on behalf of the appellants that every unfortunate outcome of a surgery, procedure or treatment cannot in itself be considered to be an instance of any medical negligence, but based on the medical literature, evidence on record and the findings of the State Commission, and after perusing the decisions relied upon by the appellants, we are still in agreement with the State Commission that the failure in, or negligent avoidance of, conducting the pre-operative CT scan is a violation of the normally expected care and caution and exercise of skill in conducting the type of surgery i.e. polypectomy which was undertaken by Dr. ***. After perusing the MRI report dated 23.04.2008, which records the impression that ‘a bony defect at the base of anterior cranial fossa on the left side of the midline’ and the record of hospital which show “nasal polyp Lt side”, we also agree with the State Commission that there is no merit in the contention of the appellants that the polyectomy was done on the left side while the bony defect was discovered on the right hand side. Though we agree in principle with the contention on behalf of the appellants that no shortcoming or negligence on the part of the treating doctor can be found for mere error of judgment in diagnosis or for choosing one of the multiple possible lines of treatment, we find no merit on facts on the basis of this principle in the contention raised by the appellants. Conducting surgery without a critical diagnostic and safety-enhancing test like CT scan is neither an error of judgment nor is one of the many established options of treatment, but is an instance of casual, careless and negligent approach of the surgeon, reflective of absence of due care and caution, to a surgery which involved very serious likely complications. Thus, and therefore, in view of the aforesaid, we concur with the findings of the State Commission qua the medical negligence of Dr. *** and of the hospital vicariously. The appeal on this ground, therefore, fails," it further held.
However, the NCDRC bench held that the compensation was granted on the higher side and ordered, "We are therefore of the considered opinion that the same needs to be scaled down. In our considered opinion, all-inclusive compensation of no more than Rs. 10 lakhs in place of nearly Rs. 16.84 lakhs awarded by the State Commission would adequately balance the scale and would meet the ends of justice."
To view the order, click on the link below:
