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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Dr. S.M. Kantikar, Presiding Member and Binoy Kumar, Member
Sir Ganga Ram Hospital and Ors. – Appellants
versus
Dr. Sita Omar and Ors. – Respondents
First Appeal No.272 of 2019
First Appeal No.421 of 2020
Decided on 7.7.2022
Consumer Protection Act, 1986 – S.19 [Consumer Protection Act, 2019 – S.51] – Services – Medical Negligence – ”Spinal fixation implant screw” –“Death of the Patient” – “Sepsis with Septic Shock, Lower Respiratory Tract Infection”- negligence attributed on Doctor – Failure of duty and care - Appeal against order of State Commission - On careful perusal of medical record of AIIMS, it is evident that the Spinal fixation implant screw was entered in right lower lobe lung and it ruptured the pleura, which was the cause of lung infection i.e. consolidation and some infiltration in right lower lobe. On 29.11.2007, the doctors at AIIMS performed right lower lung and removal of proximal screw removal and the patient was kept in ICU for four months under supervision – Time and again, the patient was taken to AIIMS for his disability. During the course of treatment, the patient, eventually, breathed last on 27.12.2012 - The death certificate revealed that the death was due to Sepsis with Septic Shock, Lower Respiratory Tract Infection, and Traumatic Paraplegia with acute pneumonia and Congenital scoliosis post-op status – Therefore, the wife of the deceased can file the Complaint. It applied the principles of res ipsa loquitor as no proper care was exercised during and after surgery and thus negligence on the part of OPs is writ large. All the doctors/OPs have been negligent in treating the patient and have failed to diagnose the post-operative complication despite patient’s several follow-up visits – Thus, Commission holds the treating doctors negligent for failure of duty of care- In the instant case, it was not a bonafide mistake of the Ops – On facts, award of State Commission is affirmed, Appeal is dismissed. [Paras 9 to 12].
Result: Appeal dismissed.
ORDER
Dr. S.M. Kantikar, Presiding Member—These two cross Appeals have been filed by the Appellant as well as the Respondents under Section 19 R/w. Sec. 21(a)(i) of the Consumer Protection Act, 1986 against the order dated 23.10.2018 passed by the State Consumer Disputes Redressal Commission, New Delhi in Complaint Case No. 147 of 2009, whereby the Complaint was allowed.
2. Brief facts:
The Complainant, Dr. Sita Omar’s husband suffered road accident on 11.03.2007 at 11:40 p.m.He was immediately taken to Safdarjung Hospital and then admitted to Sir Gangaram Hospital (SHRG) under care of Dr. A.K. Kocher, an Orthopedic Surgeon (hereinafter referred to as the ‘OP-2’).He examined the patient, who suffered multiple fractures of ribs, right femur, left fibula and pubic rami and ankle. Both the lungs were punctured and patient developed hemothorax. Due to severe blood loss, the patient developed hypotension and shifted to ICU. After a week, on 19.03.2007, Dr. S. K. Chaddha (hereinafter referred to as the ‘OP-4’) performed thoracotomy and simultaneously operated for fixation for femur and ankle repair.After two months, on 28.05.2007, spinal vertebral fixation with implant was done.However, the patient did not improve and his pain persisted.The patient developed breathlessness and he was again admitted on 10.07.2007 under care of Dr. S.K. Chaddha. Bronchoscopy was performed but no relief. The patient was discharged on 27.07.2007. Thereafter, for pain management, the patient was taken to AIIMS on 01.11.2007 under care of Dr. R. Malhotra, Orthopedician and Dr. Rita Sood, the Chest Physician.The CT scan was performed, which revealed pleural rupture due to the spinal fixation screws entered lower lobe of right lung. It led to recurring infection. Therefore, right lung lobectomy was performed and proximal screws were removed. The patient was shifted to ICU and remained for four months in AIIMS under treatment of pneumonia.The MRI was scheduled to assess the damage of spine but it was not possible because of one Harrington’s rod implant.Finally, the patient was discharged on 28.06.2008.The patient was kept on visiting the hospital regularly but day by day his condition deteriorated.It was alleged that the OP charged Rs. 1.28 lakh for inferior qualities of implant screw and further developed paraplegia, psychological depression which subsequently developed disability.Being aggrieved, Consumer complaint was filed before the State Commission, New Delhi.
3. The Opposite Parties, in their written version, denied the allegations. The question of maintainability was raised that the complaint was filed by the patient’s wife, which is not maintainable.
4. On hearing the parties, the State Commission partly allowed the complaint and awarded Rs.10 lakh as compensation on the hospital as a vicarious liability.
5. Being aggrieved, Sir Ganga Ram Hospital with Dr. S. Shankaracharya & Dr. S.K. Chadha has filed FA/272/2019 and the Complainant filed FA/421/2020 for enhancement of compensation.
6. We have heard the learned counsel for the parties, perused the entire medical record. The learned Counsel for the OPs submitted that the patient concealed his scoliosis because of childhood polio, which also affected the lungs and weakness in right limb. The Counsel denied any fault in implant screw fixation at D 11-12 vertebra and patient showed significant improvement, hence discharged. He further argued that on 10.07.2007 the patient was admitted for breathlessness, the X-Ray and CT Chest showed broncho pneumonia with collapse and fibrosis of right lower lobe of lung and there was small quantity of plural infusion on both sides. On 18.07.2007 and 24.07.2007, bronchoscopy was performed to clear the secretion. The patient was discharged with follow-up advice. According to him because of scoliosis, there was poor right lung capacity and poor respiratory effort due to polio. Thus, he was getting repeated attacks of right lung infection and atelectasis. It was nothing t
SupremeToday
Res Ipsa Loquitor – It applied the principles of res ipsa loquitor as no proper care was exercised during and after surgery and thus negligence on the part of OPs is writ large.
(1) DEXA scan — From the medical literature DEXA scan is not mandatory in each case.(2) Accepted method —OP-1 used the accepted method of treatment and thus it was a reasonable standard of practice, ....
Medical negligence ruled out where in a case established treatment protocol followed with reasonable duty of care.
Medical negligence not established as the surgical procedures adhered to accepted standards of care and informed consent was secured.
Medical negligence requires clear evidence of fault; mere complications from surgery after a lengthy delay do not establish negligence.
(1) Failure of duty of care - It was the duty of treating doctors to rule out the cause of Subarachnoid hemorrhage due to aneurysm. But in the instant case, the patient was discharged within short pe....
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