Resection of Space Occupying Lesion: Surgeon, Indraprastha Apollo Director, absolved of medical negligence charges

This Complaint was filed by legal heirs of a patient against the Director, Indraprastha Apollo Hospital, New Delhi and the doctor, a senior surgeon in the Dept of HPB Surgery and Organ Transplant.

The patient consulted the Senior Surgeon Dr C. J. Desai at Appollo Hospital, Ahmedabad. He was diagnosed as Space Occupying lesion (SOL) in the right lobe of liver and advised treatment by Chemotherapy instead of the major surgery. The patient responded Chemotherapy and the size of SOL reduced from 10 cm to 8 cm within two months. Dr. Desai opined that surgery was out of question for liver SOL, until patient’s platelet and WBC counts become normal.

On 23.08.2004, the patient approached Dr. A. K. Sethi in Army Hospital and R & R at Delhi (for short, the AHRR), who advised Chemotherapy for 30 days.

Thereafter, on 23.11.2004 in the same hospital, the patient consulted Dr. Kannan and found that the SOL was static, 8 cm in diametre. He also opined that resection of SOL was risky. Thereafter, for further management, the patient consulted the senior surgeon in HPB Surgery and Organ Transplant at Indraprastha Apollo Hospital, New Delhi who advised resection of SOL. However, the patient died after the surgery.

It was alleged that, whole process of resection of SOL was done in surreptitious manner and it was not possible to remove only gall bladder without resection of SOL, adding that the surgeon resected the SOL with gall bladder, but the OT notes (record) were manipulated /forged to create impression as SOL was not resected.

The Complainants alleged that since SOL of liver was responding to Chemotherapy and the patient had good chance of living a normal life to full span. However, due to callous attitude of the surgeon, unnecessary surgery was performed which shortened life of the patient. The Complainants relied upon one research study done by team of doctors and scientists at New Castle University, wherein alternative to liver transplant was available by use of drug Sulphasalazine to reverse damages.

Being aggrieved by the alleged negligence causing the death of patient, his legal heirs filed the Complainant before this Commission and claimed Rs. 1,28,25,000/- as compensation.

During course of proceedings the Indian Medical Council (MCI) and Delhi Medical Council (DMC) were impleaded as respondents in the case.

MCI filed its affidavit through its Deputy Secretary with respect to the MCI Regulations, Ethics and Maintenance of medical record. While, DMC held that there was no medical negligence on the part of the surgeon.

The DMC filed its reply through Registrar, Dr. R. N. Baishya and stated that the instant complaint against the DMC is not maintainable under the purview of the Act, 1986, hence, it is liable to be dismissed against DMC. The Complainants are not consumers qua DMC. The disciplinary committee of DMC made inquiry with the surgeon.

The Counsel for the Opposite Parties (Director, Indraprastha Apollo Hospital, New Delhi; Senior surgeon, MCI and DMC) vehemently argued that there was no negligence during treatment of the patient. The HCC is highly malignant tumour and having less survival rate. The Counsel reiterated their evidence on record and filed literature on the subject.

The Commission perused the entire medical record, the relevant medical literatures filed by both the parties and observed;

"The gall bladder lies just anterior to the lesion and is not separable from it. As per the OT notes and nursing record the Surgeon had not resected the SOL, but performed cholecystectomy only."

"Admittedly, the surgeon submitted before MCI that the liver resection was deferred in view of the poor Portal vein flow. Due to liver failure, there was coagulopathy induced by tumour thrombosis. Therefore, 40 units of blood and blood products [Packed RBC (5), FFP (4), Platelet concentrates (4), single donor platelets (2), and Cryo precipitate (4)] were transfused during 24 hours to correct low platelet counts. In our view, the decision at the relevant time the blood / its products transfusion was justified," the Commission added.

However, the apex consumer body said;

"In our considered view, Complainants are not Consumer qua DMC or MCI within realm of the Act 1986.The Complainants’ alleged that the DMC and MCI have passed an order without any reasons on the complaint, without examining the relevant medical records before them and without hearing to the complainant. MCI has acted arbitrarily with bias to favor their fellow doctors. Therefore, it was unfair and amounts to an act of omission."

NCDRC noted;

"As there was non-availability of compatible live donor for liver; the patient opted to undergo resection of SOL and then chemotherapy instead of waiting for cadaveric liver transplantation. In our view the Surgeon suggested appropriate line of treatment with due caution and care. It was not either negligence or deficiency on the part of the Surgeon."

It was further concluded from the chronology of events that the patient underwent pre-anesthetic check-up and after written consent, the patient was taken for the surgery. The Commission observed;

"Before surgery, it was advised to arrange 8 units of platelet concentrate and cryoprecipitate also. As per OT notes the procedure was exploratory laparotomy under G.A. On opening of the peritoneum, large SOL involving right lobe of liver mainly seg 5, 7 and 8 was noted, it was adhered to the right dome of diaphragm, thereby multiple adhesions all around the liver. Mobilisation of right lobe of liver and Chlecystectomy was performed. The intra-operative doppler USG liver showed no flow in right portal vein with minimal flow in the left portal vein, however, pre-operative CT abdomen did not show involvement of right portal vein. Therefore, in view of no right portal blood flow in the right portal vein, resection of SOL of right lobe was deferred. The hemostasis was achieved and liver tissue biopsy was not attempted. The abdominal drain No. 24 was put in the right paracolic area and the surgical wound was closed. Pre-operatively, platelet concentrates, PRC FFP were used. Also, on 18.12.2004, during recovery period, the surgeon advised continuously blood and its products."

Moreover, the Commission, for fair adjudication sought an opinion from the Board of medical experts at AIIMS, New Delhi. The opinion did not point out any negligence of the treating doctor.

Turning to catena of judgments by Hon’ble Supreme Court that held that in every case where the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed that the medical professional was negligent.

The Commission referred to the Bombay Hospital & Medical Research Centre vs. Asha Jaiswal & Ors. case, wherein, it was held that the allegations need to be proved with cogent evidence. Similarly, in the recent judgment, in the case of Dr. (Mrs.) Chanda Rani Akhouri & Ors. Vs Dr. MA Methusethupathi & Ors., it was laid down in no uncertain terms that merely because doctors could not save the patient, he/she cannot be held liable for medical negligence.

Based on the foregoing discussion and following the precedents, the Commission was of the view that the Complainant failed to prove medical negligence of the opposite parties and dismissed the complaint. It held;

"Thus, from the preceding paragraphs, the DMC, MCI and the opinion of Committee of experts constituted at AIIMS, held that the medical negligence cannot be attributed conclusively upon the OPs. In the instant case, admittedly, it was SOL with metastasis and it was unresectable tumour as due to chemo embolization the tumour size was reduced from 10 cm to 8 cm. Therefore, in the interest of patient, the decision to operate the patient as taken with due informed consent. We have perused the consent form and do not find any lacunas in it as per the operating findings, the gall bladder was adherent to the liver and therefore, it was resected and subsequently, it was confirmed as Chronic Cholecystitis. In our view, it might have caused bleeding to the patient, which required massive transfusion of blood and blood product. The OPs promptly transfused the blood and blood products including FFP, PRP and Chryopecipitate. It is known from the medical literature that HCC are highly vascular and highly metastasis. The survival in the cases of metastasis is very short. The senior liver specialist performed his duty in the interest of the patient and we do not find any ill intention or unfairness."

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