Proving Suffering of ailment by patient after surgery does not amount to medical negligence: National Consumer forum
Delhi: Proving the suffering of ailment by the patient after the surgery does not amount to medical negligence, the National Consumer Dispute Redressal Commission (NCDRC) recently held while dismissing a plea alleging medical negligence on part of a hospital and a doctor while performing a knee replacement surgery on a patient who was suffering from Osteosarcoma.
While examining the case, NCDRC found that the allegations were also vague" and built on "conjectures and surmises". The petitioner previously approached the state consumer commission stating that different size of the prosthesis was used during the surgery which caused damage to the vessels and infection in the operated area of the patient and which ultimately deteriorated the condition of the patient.
The petition also alleged that the accused hospital delayed the surgery and also mentioned that there were several deficiencies in the services of the doctor and the hospital which led to the death of his daughter. However, the state commission did not found the doctor to be negligent but instructed the hospital to give compensation of Rs 1 lakh to the complainant. Both the hospital and the complainant then approached NCDRC challenging the order.
The petitioner submitted that his daughter was suffering from Osteosarcoma on her left knee after which she sought treatment in the respondent hospital. She was advised for few cycles of Chemotherapy followed by knee replacement with artificial limb at a later stage. The patient underwent Chemotherapy for more than five weeks and later was advised by the attending surgeon for Total Knee Replacement implant of an Artificial Prosthesis in lieu of the amputated limb.
It was alleged that the order for prosthesis (implant) was delayed because of the faulty internal administration of the respondent hospital. Though the Prosthesis was available at a discounted price with the help of Cancer Patient Aid, but the hospital refused to accept it. It was further alleged that the patient was admitted in February, 1999 but the surgery was delayed to 15.09.1999, which caused additional expenditure due to increased higher price for prosthesis and the patient had undergone one more dose of Chemotherapy which was harmful for the patient.
The Complainant further alleged that both the operative teams i.e. Cancer Surgeon and Plastic Surgeon were not present during the surgery which has a norm in such surgical process. The Plastic Surgeon was dissatisfied with such delay and told that it may cause infection to the operative wound. Moreover, there was no water available in the Operation Theatre for hand scrubbing. It was further alleged that the Prosthesis was not implanted properly which caused damage to the blood vessels and profuse bleeding. It was the carelessness and deficiency in service of treating doctors due to which the patient developed an infection at operated site. Thereafter, the doctors at the hospital again advised to replace the Prosthesis with free fibula grafting with additional dose of Chemotherapy.
It was alleged that though, the Surgeons were aware that further treatment would not yield any positive result, yet, they asked the Complainant to deposit additional Rs. 1.5 lakh for Surgery and Rs. 2 lakh for post-surgery Chemotherapy.
However, the patient's father did not agree and the patient got admitted in nearby Hospital, Bischam at Cuttack. The infected Prosthesis was removed on however the severe wound infection persisted. It was alleged that different size of prosthesis was used during surgery and did not fit into the patient, which caused damage to the vessels and caused further delay in reconstructive Plastic Surgery. The Doctors carried out amputation of the leg but the patient could not recover from the infection and expired on 08.12.2000.
Being aggrieved by the alleged deficiency of service and medical negligence of the treating doctors, a Consumer Complaint was filed against the hospitals and the doctors before the State Commission, claiming compensation of Rs. 19, 90,400/- with interest
The counsel for the respondent hospital and doctors denied any negligence or deficiency in the treatment of the patient. They submitted that the Prosthesis being a foreign body, sometimes it may not suit every patient and may cause infection, therefore its removal was recommended. It is a known complication that about 15% of cases show infection on implantation of Prosthesis.
The counsel for the opposition confirmed that the doctors after examination advised immediate admission and removal of Prosthesis at the earliest but it was the father of the patient who denied and took the patient away. The respondents further added that the patient was immuno-compromised and highly prone to infections, therefore the 5 session of Chemotherapy for September 1999 and the surgery got delayed.
The State Commission did not hold the Opposite Parties liable for medical negligence and dismissed the complaint. However, it held the respondent hospital for functional irregularities and ordered the hospital and the doctor to compensate the Complainant by making a payment of Rs. 1 lakh plus Rs. 10,000/- towards the cost of litigation.
Challenging the order passed by the State Commission, the Complainant approached the apex commission for enhancement of compensation, whereas the hospital and doctor filed Appeal for the dismissal of the complaint and to set aside the observations of alleged irregularities State Commission.
The apex commission observed that the patient had a highly aggressive malignant tumour and generally, pre-operative cycles range from 3 to 5 sessions of chemotherapy. It further added, "In the instant case it was decided to give five cycles of neoadjuvant Chemotherapy between February, 1999 and August, 1999. Thus, the allegation of Complainant is not sustainable that surgery could have been done after 4 cycles of Chemotherapy and the unwanted 5 cycle of Chemotherapy which delayed the surgery that was not required."
The commission also took note of the fact that the Complainant neither led any expert evidence nor produced any medical literature to prove medical negligence. The commission also noticed that the state commission referred to two expert opinions stating ' nothing is established about any lapses or failure of duty of care at TMH and does not corroborate the allegations of negligence raised by the Complainant No. 2. Thus, the State Commission rightly held that there was no medical negligence from the Opposite Parties."
As far as the allegation of using the wrong size prosthesis is concerned, the court observed that the KOTZ Modular Knee Prosthesis is a set of several different components that come in different sizes /configurations. The sizes may usually vary with measurements taken on a clinical examination and the exact size can only be determined on the Operating Table by the operating surgeon. In the instant case, the doctor on a clinical examination of the patient asked for the diameter of the main Prosthesis to be approximately 9 mm. However, the exact measurements taken during operation on the Operating Table indicated that the patient required Prosthesis of 10 mm diameter.
The court added,
" Therefore, the Complainant's allegation about Prosthesis of a different size than that prescribed earlier was used which resulted in pain to the patient which had to be ultimately removed is not sustainable. "
The commission also found
" the allegation of the Complainant about complete mismanagement during the Surgery in the Operation Theatre as both the Orthopaedic Surgeon and the Plastic Surgeon were not present at the same time is also not sustainable as it is clear that the first part of the surgery is performed by the team of Orthopaedic Surgeons who do excision of the diseased bones and implantation of the Prosthesis, then the reconstruction of the tissues around the operated area is to be done by the second Team of Plastic Surgery. Therefore, there was no need of Plastic Surgeon to be present during 1 part of surgery... Such allegation of the Complainant is based on conjectures and surmises; and is therefore vague."
The commission also took note of the fact that the hospital had never a problem of water. The scrubbing areas for several adjacent Operation Theatres are common.
Referring to the case Jhunjhunwala Vs. Dhanwati Kaur and Anr., (2019) 2 SCC 282, the commission found,
" doctor or surgeon cannot assure that the outcome of any surgery would be beneficial. The court held that a professional might be held liable for negligence either if they do not possess the requisite skills that they claimed to have, or they don't exercise the skill which they have but a doctor could not assure full recovery of a patient."
In another case, the commission considered the supreme court's decision stating
The skill of medical practitioner differs from doctor to doctor. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and a court finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence.
Ultimately the apex commission noticed that the doctors diagnosed the disease correctly and there was no deviation from the duty of care as the cancer specialist / operating surgeon to decide the time of operation after appropriate chemotherapy cycles and use of proper implant during surgery. Thus the court found the treatment plans to be correct as per standard of practice.
" It is pertinent to note that the patient died after eight months of the surgery and it was not due to any infection or any deficiency in duty of care of the treating doctor. The patient died due to metastasis in the lungs which is known in the Osteosarcoma – the aggressive malignant tumour. The expert opinion did not comment on any deviation of treatment or negligence by the doctors the hospital", stated the commission.
The commission found that medical negligence of the treating doctors or the hospital cant be attributed hence the impugned order to the extent it is directed against the hospital "cannot be sustained and is accordingly set aside."
Finally the commission ordered
Considering the sufferings of 16 years young girl who died of highly aggressive bone cancer (Osteosarcoma) and the loss & agony of the bereaved parents who spent two decades in the litigation, with my sympathies for the parents of deceased, let Tata Memorial Hospital extend its charity and donate the amount deposited before this commission along with accrued interest to the Complainant However, it shall not be construed as a precedent in any manner.
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