Death after tonsillectomy : ENT Surgeon absolved of Medical Negligence
Delhi: Setting aside the Kerala state consumer commission's decision, the National Consumer Dispute Redressal Commission (NCDRC) has dismissed a case of medical negligence against an ENT surgeon who performed a Tonsillectomy on a patient who shortly died after the procedure.
This came after the wife of a patient approached the state medical council alleging medical negligence on part of the doctor for not diagnosing the bleeding disorder before tonsillectomy surgery performed on the patient which ultimately led to the death of the patient. The state commission held the doctor guilty of negligence and stated that the complainant will be entitled for receiving almost Rs 350000 as compensation.
The doctor approached the apex commission opposing the order and the commission found that the State Commission has erred in holding negligence on part of the doctor.
As per the case, the complainant's husband was taken to the hospital with the complaint of pain in the throat with blood in the saliva while spitting. An ENT Surgeon examined the patient, and an X-ray of the neck was done. The X-ray showed a fishbone piercing in the left tonsil. The patient was advised for Tonsillectomy which was performed by the doctor. Thereafter, in-spite of the Tonsillectomy surgery, the patient suffered uncontrolled bleeding and was referred to Medical College Hospital at Kottayam.
The patient got admitted there and took treatment till 11.02.2000. Thereafter, the patient was referred back to the previous hospital (respondent), but the re-admission was refused by the hospital. The patient was again re-admitted to the Medical College Hospital, Kottayam.
The condition of the patient started deteriorating and he was referred to Little Flower Hospital, Angamally wherein the diagnosis of Hemophilia-A was made. However, during treatment, the patient succumbed due to Acute Respiratory Distress Syndrome (ARDS).
Being aggrieved the complainant (wife of the deceased patient) filed a complaint in the State Commission alleging deficiency in service and medical negligence against the doctor and the hospital for not diagnosing the bleeding disorder before the Tonsillectomy surgery.
The doctor contested the complaint stating that the patient was brought to the casualty department and he stated the history of accidental fish bone injury while taking food a week back. "He did not state a family history of bleeding tendency. On examination, there was left tonsillar fossa bleeding but no infection. All necessary blood investigations including Bleeding Time (BT), Clotting Time (CT) and Platelet Count were done. Thereafter, under general anesthesia the patient was examined and no fish bone was found. Since, the conservative method to stop the bleeding failed, tonsillectomy and cauterization of the left tonsillar fossa was done. Two days after the surgery, the patient developed bleeding from the left tonsillar fossa, thus suspected some bleeding disorder and the patient was referred to the Medical College Hospital, Kottayam. The patient and his wife (the complainant) have concealed the history of bleeding disorder in the family. If it would have been disclosed, treatment would have taken a different mode. Thus, the diagnosis was not a negligent diagnosis." he said.
After considering the submission the submission of both the parties, the state commission clarified, "we find that there is contributory negligence on the part of the patient as well as on the part of the bystanders including the complainant." The commission further added
The complainant has testified that there is no such family history and that his children and the relatives were subsequently tested regarding the bleeding disorder and found to be having no such disorder the complainant has not produced any evidence in this regard. Hence we find that after being aware of the family history of bleeding disorder the patient and the complainant ought to have intimated the same to the treating doctor/ ENT Surgeon/ DW 1. We find that there is contributory negligence on the part of the patient and the complainant in this regard. We assess the contribution of negligence as 50 %.
With regard to the contributory negligence on the part of the complainant and the deceased, 50 % of the above sum of the total sum reduced, and the commission clarified that the complainant will be entitled to Rs. 3,42,516/-. Being aggravated by the order, the respondent doctor approached NCDRC.
The learned counsel for the patient party reiterated the evidence filed before the State Commission. He further submitted that the State Commission wrongly held Contributory negligence and demanded enhancement of compensation.
The counsel for the doctor and the hospital on the other hand stated that after tonsillectomy the bleeding completely stopped till the evening of the next day but the bleeding restarted and became profuse due to the Haemophilia A. It was then suspected that the patient might be suffering from some congenital bleeding disorder.
The court observed that in the instant case when the X ray did not show (retention of) fishbone in the throat, but still, there was active bleeding from the left tonsillar fossa persisted, ENT surgeon was duty-bound to find out the cause of the bleeding and to stop the same by removing the tonsil.
The court observed, " congenital bleeding disorder was already existing ailment in the patient, it was not disclosed by the patient or his attendants at the time of the clinical examination during admission or at any time before the Tonsillectomy surgery, the surgery itself was conducted properly, referral for further treatment and specialized tests to rule out bleeding disorders was made immediately on the occasion of suspecting some bleeding disorder etc. Non-disclosure of past history of the bleeding disorder by an educated aware patient, while disclosing the incident of fish curry, at the time of admission, non-disclosure of the bleeding disorder by the patient before the Tonsillectomy surgery, cannot be held to construe negligence on the part of the doctor."
The court further added, in the instant case, the doctor exercised due diligence to suspect bleeding disorder and to make a referral to a higher centre equipped therefor when the bleeding recurred a day after the Tonsillectomy surgery. The diagnosis of Haemophilia needs preferably a Haematologist and a good laboratory set up. The doctor performed the basic haematological investigations before the Tonsillectomy surgery including BT, CT, and Platelet Count. At that relevant time (2000), it was not a failure in duty of care and the doctor treated the patient as per the standard medical practice.
The court dismissed the case of medical negligence against the doctor and held
Contributory negligence on the part of the patient', as held by the State Commission, ipso facto implies negligence on the part of the doctor / hospital. In our considered opinion, the State Commission has erred in holding negligence ( per se or due to contribution by the patient) on the part of the doctor, hospital.
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