Ovary ruptures during Appendisectomy: Consumer Court absolves surgeon of medical negligence
Hooghly: Finding no solid evidence that would point towards the medical negligence on the part of the doctor, the District Consumer Disputes Redressal Forum, Hooghly, dismissed the allegations by a patient against a surgeon who removed her ovary during an appendix operation.
Justice Shri Sankar Kr. Ghosh, president of the Forum, and other members- Smt. Devi Sengupta and Sri Samaresh Kr. Mitra held that the doctor "cannot be blamed for rupturing the cyst of Rt. Ovary during the course of Appendisectomy." The bench opined that the Complainant had failed to prove the case against the doctor and thus found no negligence or deficiency of service on the part of the treating doctor.
The case goes back to 2017 when the patient, suffering from stomach pain visited the Sadar hospital, Imambara on 24.01.2017. The attending doctor advised the patient for a USG examination which was done on 25.01.2017. The same day, the patient visited the clinic of the treating doctor.
The petitioner patient claimed that the doctor informed her about the enlargement of the appendix only and advised some tests as well. He further informed the patient about the procedure of operation via microsurgery. The doctor allegedly assured the patient a speedy recovery.
Following this, as per the instructions given by the doctor, the patient got admitted to the treating nursing home on 28.01.2017. The petitioner submitted before the Forum that the doctor said that due to the presence of a blood clot, conducting open surgery would be necessary. After the completion of the operation, the doctor allegedly showed the appendix and the ovary to the patient's family, and informed them that removing the ovary was necessary as it had been burst, the petition stated.
The petitioner has further claimed that she had no gynecological problems prior to the operation and the U.S.G report conducted 3 days prior to the operation didn't mention any such thing. She further contended that the doctor, no expert in the field, should have sought expert opinion before operating in a hurried and negligent manner. Informing the Forum that she had planned for a second baby, the petitioner pointed towards the alleged medical negligence as the reason for no such hopes anymore.
Claiming that her ovary had been ruptured during the course of operation because of negligence on the part of the doctor, the petitioner in her complaint prayed for directions upon the doctor and the nursing home to pay a sum of Rs. 16,756/- for expenses incurred by her, a sum of Rs.19,83,240/- as compensation to be paid jointly or individually, the cost of litigation, and any other relief fit and proper in law and equity.
The doctor and the nursing home denied all the allegations labelled against them. The doctor stated mentioned that the patient was taken up for surgery on under general anaesthesia in the supine position after antiseptic draping as per standard approach and the abdomen was insufflated with carbon dioxide gas through the supraumbilical port through veeres needle after sufficient abdominal distention and supraumbilical 10 mm. port made through 10 mm Trochar with Canula and Telescopic camera introduced through this port.
He further stated before the Forum that on placing the camera inside the abdomen, dark colour blood was found at right paracolic gutter and at the right side of the pelvic cavity and two other ports placed under direct vision of the camera to avoid any injury during placement of the ports. He also mentioned that all laparoscopic surgeons would inflate the abdomen sufficiently before placing the camera port through veeres needle for safe entry of the first port so that no injury could happen.
The doctor further stated that after standard placement of the three ports and placing the other hand instruments displacing the omentum, intestine, dark-coloured old blood at right paracolic gutter and at the right side of the pelvis had been seen after proper examination. He mentioned that it had also been found that the right ovary of the patient had been ruptured and probably the pre-existing cysts within the right ovary (USG report) had been ruptured with fresh active bleed from the ruptured margin.
Upon detecting that the cut margins of the ovary had been highly friable, the doctor came upon the conclusion that repair could not be done in this case. Following this, he contacted other senior and experienced gynaecologists of Chinsurah and explained the whole operative findings. They advised him to try to repair the right ovary and in case the repair would not be possible, they suggested for right Oophorectomy. Based on this, the doctor conducted the right Oophoerectomy and Appendicectomy as per standard technique. He further mentioned that photographs of the specimen of the Appendix, right ovary, and blood clot had been taken and Appendix and Ovary had been given to the patient party for histopathological examination.
The Histopathological report stated that the Section from the right ovary had shown features of hemorrhagic corpus luteal cyst. Thus, the doctor contended that from the histopathological report, it had been clearly evident that there was pre-existing haemorrhage within the corpus luteal cyst which had caused rapture of the cyst wall leading to the bleed. He further argued that the rupture in the ovary had happened between 25.01.2017 to 28.01.2017, as the USG report, prepared on 25.01.2017, hadn't mentioned the rupture.
After listening to the contentions by both the parties, the Forum called for the report by the inquiry committee set up by C.M.O.H for proper adjudication of the case. The inquiry committee comprising of a gynaecologist, a surgeon, and the Deputy C.M.O.H opined in the report that the treating doctor had "judiciously, without negligence in the interest of her health performed the operation" on the patient.
The doctor had further contended that the patient didn't oppose the report made by the inquiry committee and didn't submit any other medical opinion to ascertain the complaint.
The doctor, in his defense, referred to the judgment of Hon'ble Apex Court passed in the case between V. Kishan Rao –vs- Nikhil Super Specialty Hospital & another. It mentioned that in the realm of diagnosis and treatment there would be ample scope of genuine difference of opinion and a doctor would not be termed negligent merely because his conclusion differs from that of other professional men. It had also been made clear that the true taste for establishing negligence in diagnosis or treatment on the part of a doctor would be whether he had been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care.
After listening to these contentions the Forum, in continuation to the histopathological report, examined the pending documents provided by on-duty Anaesthesist of the case and two Gynecologists, who had been contacted on phone by the treating doctor. Those two gynaecologists informed the Forum about the same facts as mentioned by the treating doctor via letters. On the other hand, the on-duty anaesthetist informed the Forum that the doctor had followed the standard norms of surgical procedures as would be necessary.
After hearing all the arguments by both the parties the Forum referred to the judgment of the Supreme Court in Malay Kumar Ganguly's case,(2009) that mentioned,
"It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law, specially in cases of torts and helps in determining the onus of proof in actions relating to the negligence. Thus for civil liability it may be enough for the complainant to prove that the doctor did not exercise reasonable care in accordance with the principles mentioned above."
The Forum also referred to the Supreme Court judgment in Martin F. D'Souza V. Md Ishfaq. There, it stated,
"when a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions."
Coming to a conclusion, the Forum stated,
"the doctor is not liable for every injury suffered by a patient. He is liable for only those that are a consequence of a breach of his duty. Hence once the existence of a duty has been established the plaintiff/petitioner must still prove the breach of duty and the causation. In case there is no breach or the breach did not cause the damage the doctor will not be liable."
The judgment by the Disputes Redressal Forum further mentioned,
"The Apex court and the National commission has held that the skill of a Medical practitioner differs from doctor to doctor and it is an incumbent upon the complainant to prove that the appellant was negligent in the line of treatment that resulted the complainant became handicapped and suffered a lot of pain. A judge can find a doctor guilty only when it is proved that he has fallen short of a standard of reasonable medical care."
Mentioning that the treating doctor tried his best to treat the patient after getting consent from the patient party and following a discussion with the gynaecologists, the Forum opined that the doctor "cannot be blamed for rupturing the cyst of Rt. Ovary during the course of Appendisectomy."
Disposing of the petition the judgment further mentioned,
"The complainant failed to prove her case by adducing evidence that the opposite party doctor was negligent in treating her for which she suffered consequential damages. We do not find any negligence or deficiency of service on the part of treating doctor in the instant case. So the complaint petition filed by the complainant has no leg to stand and deserved to be dismissed."
To view the original judgment, click on the link below.