Consumer Court holds Max hospital surgeons guilty for leaving Cotton during Brain Surgery, directs Rs 5 lakh compensation
New Delhi: Holding the Max Super Specialty Hospital and its Surgeons guilty of medical negligence for leaving a foreign material at the site after brain surgery, the District Consumer Disputes Redressal Commission-II, New Delhi has directed them to pay Rs 5 lakh as compensation to the family of the complainant, who had died after filing the complaint.
Such a decision was taken by the Commission after taking note of the entire medical reports including MRI and histopathology report of AIIMS, Sir Ganga Ram Hospital, and the report given by the expert board of Safdarjung Hospital that was constituted by the Commission itself.
Holding the Hospital and its doctors guilty, the Commission noted, "when the test of an ordinary competent person exercising ordinary skill in that profession is applied the OPs are guilty for negligence as mere presence of a foreign material at the site of the surgery after the surgery was completed is itself indicative of lack of care taken by the surgeon during the surgery and therefore we conclude that OPs are guilty of medical negligence."
The history of the case goes back to 2008 when the complainant had pain in his head and therefore he visited the Max Super Specialty Hospital, where he was advised for MRI and CT scan. The report of the CT scan and MRI disclosed that there was grade II tumor and operation was a must. Accordingly, the complainant was directed to o deposit Rs 1,49,000 as operational expenses besides other medicine expenses.
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Operation of the complainant was conducted on 18.08.2008 by Dr. Sandeep Vaishya (Sr. Consultant Spinal & Neurological Surgery) and Dr. Vikas Gupta (Surgeon). However, the complainant alleged that after three days of discharge, he started having pain in the head again and therefore, the patient along with his family members visited the treating doctors, who assured that it was nothing to be worried about.
Meanwhile, the pain started increasing and therefore, the complainant visited AIIMS for his treatment. The complainant was asked to bring the record/ slide of MRI and specimen taken by the pathology department of Max Department. On perusal of the slide, it was found by the doctors that no tumour was seen in the sections examined.
Further, the doctors of AIIMS allegedly operated on the complainant and confirmed that earlier no operation of any kind was conducted on the complainant but the head of the complainant was opened in the name of operation. During the course of operation, cotton was found inside the head of the complainant which was left by the doctors of Max Hospital. This cotton was removed by the doctors at AIIMS during the operation of the complainant on 20.10.2008. Thereafter, alleging medical negligence against Max Super Specialty hospital and its doctors, the complainant approached the consumer court in Delhi. After few days into filing the complaint, the complainant died in 2009.
On the other hand, the treating doctors and Max Hospital stated that the complaint is based on misconceived presumptions, assumptions, unfounded notions. They submitted that the complainant had approached them with a history of headache for 10 days which was increasing severely. Apart from this, the complainant had also mentioned about vomiting and eye pain. Contrast MRI brain was done which confirmed enhancing and necrotic left thalamic tumour reaching up to the brainstem. After clinical radiological correlation and written informed consent of patient /complainant he was operated (left parietal occipital carionotomy and decompression). Frozen section during surgery revealed it to be low grade glioma. After surgery, the complainant did well and did not complain of any headache or pain and was discharged in a conscious state.
They further argued that the present complaint related to o a medical issue and therefore cannot be opened in the absence of a medical opinion. Further, they informed the Commission that even though the complainant had been informed that he had left thalamic tumour, the term grade II was not mentioned in it as the same status can be commented upon only after the histopathological report.
They submitted that histopathological examination showed a low grade glial tumor along with areas of uninvolved brain parenchyma. No features of grade IV tumour such as necrosis or multi vasculature proliferation was seen in the submitted tissue.
Claiming that they provided the best medical care to the patient, the hospital and the doctors submitted that they had taken opinion from Sir Ganga Ram hospital and sent the relevant slides. The report from Sir Ganga Ram Hospital revealed presence suggestive of low grade Astrocytoma (Grade II).
Taking note of the submissions made by both the parties, the Commission also perused the entire material on record including the MRI reports and other reports.
The consumer court noted that the first MRI of the Complainant was taken done on 16.08.2008 at Max hospital wherein it was stated: "Necrotic multiobulated peripherally enhancing mass lesion in left thalamus with surrounding Mass Effect and ventricular compression with mild hydrocephalus. Findings suggestive of aggressive high grade tumour."
In the discharge summary, the hospital mentioned the diagnosis as 'left thalamic glioma' and stated that 'contrast MRI brain was done which confirmed enhancing and necrotic left thalamic tumor reaching up to the brain stem. Frozen section during surgery revealed it to be low grade glioma.'
On the other hand, the histopathology report of AIIMS mentioned, "'Received one H/E stained slides and paraffin block from brain for review the slide examine shows multiple fragments of cortical tissue occasional fragments of white matter is seen. No definite tumor is seen in the sections examined."
Another report by AIIMS dated 29.09.2008 further confirmed that there was no tumor to be seen.
The discharge summary of AIIMS revealed, "heterogeneous hypodense mass lesion in Lt thalamus with extension into suprasellar cistern mild hydrocephalus present." Further the histopathology report of AIIMS dated 03.11.2008 after the second surgery stated, "Specimen sent as left thalamic SOL shows histomorphological features of glioblastoma multiforme (Who grade IV) the tumor cells are immuno positive for P 53 M1B I label in index is 18% in highest proliferating area. Specimens separately as cotton received from the opening show foreign body material."
The Commission also took note of the expert opinion of Sir Ganga Ram Hospital which mentioned, "'Section shows multiple small fragments of brain tissue, some showing sparsely cellular astrocytic tumor showing mild nuclear pleomorphism with no mitosis. no necrosis or microvascular proliferation is seen.' 'suggestive of low grade astrocytoma (grade II), please correlate with MRI findings'."
Apart from all these, the Commission also sought an expert opinion from board of Safdarjung Hospital on 16.11.2010, which mentioned, "thalamic tumours or deep seated tumours and distinction between normal brain tissue and tumour issue is difficult to make intra operatively. Reactive gliosis surrounding the tumor may at times be difficult to differentiate from low grade glial tumour...There was no complication like infection due to cottonoid as evident from operation notes."
Referring to all these reports, the Commission put its reliance on Supreme Court order in the case of Jacob Mathew vs. State of Punjab and Ors., where the top court had held that "A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess."
Placing reliance on the Apex Court judgment, the Commission noted, "Therefore though the OPs cannot be held liable on account that they did not possess the highest level of expertise or skill however when the test of an ordinary competent person exercising ordinary skill in that profession is applied the OPs are guilty for negligence as mere presence of a foreign material at the site of the surgery after the surgery was completed is itself indicative of lack of care taken by the surgeon during the surgery and therefore we conclude that OPs are guilty of medical negligence."
Further relying upon the order in the case of Achutrao Haribhau Khodwa vs State Of Maharashtra 1996, the bench noted, "The OPs No. 1, 3 and 4 are held guilty of negligence and cannot shy away from their duty to take care. The OPs are directed to jointly and severally pay a sum of Rs. 5,00,000/- within a period of three months from the date of this order failing which the OPs shall be liable to pay the said amount of Rs.5,00,000/- @ 7% p.a from the date of surgery with OP till realisation."
To read the order, click on the link below.
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