Tracheostomy without consent, consultation- Consumer Court junks Rs 25 lakh claim against ENT surgeon, Karnataka Hospital
No Medical Negligence
Bengaluru: Reiterating the observations of the National Consumer Court that no medical negligence can be attributed against a competent surgeon if an emergency operation was conducted to save the patient, the State Consumer Disputes Redressal Commission, Karnataka, recently exonerated an ENT surgeon and a private hospital from charges of medical negligence while treating a patient diagnosed with Ludwig Angina.
The complainant alleged that his wife died after the ENT surgeon performed a Tracheostomy without consent and without consulting other doctors. However, the consumer court noted that the patient's oxygen level had dipped, and the primary duty of the ENT surgeon was to make an airway, which could be done only by operating on the patient by Tracheostomy.
The history of the case goes back to 2015, when the complainant's wife consulted the treating ENT surgeon for a complaint of Throat infection from the previous day. After examining the patient, the doctor advised admitting her as in-patient at the treating hospital.
It was submitted by the complainant that after the treatment, the patient started feeling a little bit better and relieved from the pain and in the late night hours, the doctor suggested that the deceased should undergo MRI test at MRI Scan centre and issued an appropriate format, duly filled up.
It was alleged that despite issuing such prescription, the doctor visited the patient at the early hours on the next day and informed the patient's attendants that the patient had to be operated upon without any further delay, irrespective of the MRI Scanning. At that time, the complainant was not present, and allegedly, the patient was taken to the Operation Theatre hurriedly and an emergency 'Tracheostomy' was done by the ENT surgeon at 10:30 am and by 10.45 am, the patient was declared dead.
The complainant alleged that the doctor conducted a 'botched-up-operation' on the patient without due consultation. Filing the consumer complaint, the complainant demanded Rs 25 lakhs as compensation.
On the other hand, the doctor argued that before coming to him, the patient had contacted a Senior ENT surgeon who had diagnosed her ailment as Ludwig Angina (infection in one space of neck) and advised her to undergo surgery. However, this advice was declined and the patient insisted on outpatient treatment. Accordingly, the patient was administered an injection, which was mentioned in the Prescription Slip and the Case Sheet maintained by the complainant. As per the doctor, the surgery is advised only when the patient's condition is precarious.
It was noticed after thorough clinical examination and also the blood investigation report that the deceased was facing difficulty in breathing, swallowing and opening the mouth, according to the doctor.
Further, the doctor submitted that even though initially the infection was confined to one space of the neck, subsequently, it spread to the entire spaces of the neck and thereafter into the chest. The ailment was blocking the airway, and her condition was indeed critical, and there was a possibility of her breathing her last at any time. Hence, it was absolutely necessary to admit and treat her vigorously as the airway was getting compressed.
The treating doctor also claimed that the MRI scanning was advised during the Clinical consultation and not in the late hours. The complainant had urged taking the patient to VIMS hospital, Ballary, but pleaded on religious ground for admitting her to the treating hospital, which was proximate to his residence. As per the doctor, after admitting the patient, utmost care was taken, a medical line of management was started and appropriate treatment was given and the same has been recorded in the Case Sheet also.
The doctor submitted that to save the patient's life and to secure the airway, the patient was advised to undergo Tracheostomy. However, the attendant present did not agree and inisisted for an MRI first. Having regard to the seriousness of the patient, the ailment eventually resulted in her death and the blood oxygen level had dipped to 78%. The complainant was informed that patient cannot be taken for MRI in a critical condition and it was necessary to secure air way by doing Tracheostomy. Only after blood investigation, it was noticed that the patient was also suffering from Diabetes.
The matter was discussed over phone with the Physician, who advised fasting and postprandial Blood Sugar level for fast treatment. Further, the doctor claimed that the surgery was not done hurriedly but only to save the patient's life. Therefore, there was no negligence or breach of duty during the treatment of the patient.
After perusing the records, the State Consumer Court observed that on 14.08.2015 at 10.30 am, the treating doctor received information from the attending Nurse about the condition of the patient had deteriorated, and Blood oxygen level had dipped to 78% and with the consent of the Complainant, Tracheostomy was carried out without an MRI.
"We also notice that, MRI report has nothing to do with conducting of the Tracheostomy. By 10.40 am on 14.08.2015, the Pulse of the patient, as well as Oxygen level was dipping, which has not recovered and the Patient died at 10.45 am on 14.08.2015," further observed the Commission.
The Commission observed that while the complainant alleged that the doctor conducted the Tracheostomy without consent and without consultation with the Physician and other Surgeons, the doctor argued that he had promptly attended to the patient, being an expert in the field of ENT.
"...he has explained the consequences of the patient and also to the attendant. In the case sheet, the consent of patient was obtained to carry out tracheostomy to create air way to the patient as she was suffering breathless, which is fatal to the patient. Accordingly, he has conducted tracheostomy. There was no complication on account of tracheostomy, but on account of other complications, such as, pulse and level of Oxygen in the blood was decreasing and it has not come upto the mark and consequently the patient had collapsed," observed the Commission.
The Consumer Court noted that the NCDRC in the case of Kanchan Singh Vs. Maa Sharda Hospital & anr held that if an emergency operation was conducted by a competent surgeon to save the patient, it does not amount to medical negligence. Further, the Supreme Court observed in the case of Jacob Matthew Vs State of Punjab & anr. that simply because a patient has not favourably responded to a treatment given by the physician or surgery has failed, the doctor cannot be held liable.
Further, the Commission reviewed the medical literature related to the case that explains the ailment, the need for treatment procedure for such patient in an emergency. The consumer court also took note of the case sheet and observed that the "patient was regularly followed up by nursing staff. The interval of timings clearly explains the patient was regularly monitored on an hourly basis."
"On behalf of the Complainant, except the In-patient record and Out-patient Slip, there is no other material that the patient of this nature when brought before an ENT Surgeon for treatment, what is the treatment protocol required to be followed? What has been followed by OP1 (ENT Surgeon)? What is expected of ? & what is not followed?. As we referred to the text supra, the complications and the risk of the person with an ailment of this nature required the expert to follow standard procedure required to be adopted by a prudent ENT surgeon," further noted the Commission.
The Commission also observed that the NCDRC held in the case of Kanchan Singh Vs Maa Sharda Hospital & anr that a mere deviation from normal professional practice is not necessarily evidence of negligence. At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. Similarly, the Supreme Court observed in the case of Jacob Mathew that as long as the procedure which was adopted was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure.
Accordingly, the Commission noted,
"We have carefully perused the complications, expected treatment that a prudent ENT surgeon has to provide. As discussed in the literature, we do not find any material on record to show that OP1 has deviated from the standard procedure and which is prescribed by the medical text. Mere operating to make the air went by conducting Tracheostomy will not come in the purview of the negligence, as pleaded by the Complainant."
"Medical Science clearly point out that in such case of complications, the primary duty on the part of ENT Surgeon is to make airway which could be done only by operating the patient by Tracheostomy which the OP1 as performed. We do not find any procedural irregularity or negligence on the part of OP1. The allegations that, he has not consulted with any Physician is not a ground to alleged medical negligence against OP1," it observed.
Accordingly, exonerating the doctor and the hospital, the Commission mentioned,
"As rightly contended by OP2, there is no allegation made against Hospital and there is no allegation that nursing care was carrying any deficiency. Hence, we are of the considered view that, on the basis of evidence placed before us by the Complainant, we have not persuaded to accept that OP1 has committed any medical negligence in treating the patient. Accordingly, we answer point No.(i) in the negative."
To view the order, click on the link below:
https://medicaldialogues.in/pdf_upload/karnataka-scdrc-no-med-negligence-297898.pdf
