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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Dr. S.M. Kantikar, Presiding Member
Rohandeep Singh Jaswal – Complainant
versus
Kokilaben Dhirubhai Ambani
Hospital and Medical Research
Institute and Ors. – Opp. Parties
Consumer Case No.1173 of 2016
Decided on 19.12.2022
Counsel for the Parties:
For the Complainant:Mr. Sanjoy Kumar Ghosh, Advocate, Ms. Rupali S. Ghosh, Advocate
For the Opp. Party: Dr. M. S. Kamath, AR, Dr. Mihir Bapat, Doctor
IMPORTANT POINTS
(1) Informed consent - There are 4 components of informed consent including decision capacity, documentation of consent, disclosure, and competency.
(2) Consent - The underlying principle of consent isn’t particularly complicated. Patients have a right to make an informed, voluntary decision about their care.
(3) Negligent - Though the mode of treatment/ skill differ from doctor to doctor and if he performs his duty with reasonableness and with due care, he cannot be held negligent.
(4) Surgery - Prior to surgery it was the duty of OP-2 to conduct nerve conduction studies and neurological assessment. It was also necessary to seek opinion or assistance of competent Neurosurgeon before surgery and also during surgery.
Headnote:
(A) Consumer Protection Act, 1986 – S. 21(a)(i) – [Consumer Protection Act, 2019 – S.58(1)(a)(i)] – Services – Medical Negligence - “Informed Consent” – unsigned prescriptions - It is pertinent to note that the Consent for anaesthesia and for operation is on record. The Consent for operation lacks the ingredients of Informed Consent. The risks of paraplegia/paralysis during the Kyphoscoliosis surgery was not mentioned or explained to the Complainants or the patient. A specific query was put to the AR about the informed consent in the instant case - The documents on record are unsigned prescriptions which in the opinion of the Commission, it does not construed as “informed consent”. Thus it is evident that the OP-2 failed to obtain informed consent for surgery in the instant case. [Para 11].
(B) Consumer Protection Act, 1986 – S. 21(a)(i) – [Consumer Protection Act, 2019 – S.58(1)(a)(i)] – Services – Medical Negligence - “Informed Consent” - medical consent - 4 components - Reiterated, The responsibility of the doctor (neuro/ ortho surgeon) is to provide the patient with all information pertinent to the medical decision in an optimally comprehensible manner. The lack of informed consent is the basis for a large portion of negligence litigations in neurosurgery. The informed consent is a process by which the doctor communicates with the patient about details, risks, benefits expectations, and alternatives of a given treatment which includes declining treatment.. Documentation serves as an adjunct. The legal standard is to provide all information so that an average, reasonable individual has the information required to make a decision – Further held, the underlying principle of consent isn’t particularly complicated. Patients have a right to make an informed, voluntary decision about their care. There are 4 components of informed consent including decision capacity, documentation of consent, disclosure, and competency. The two well-recognized exceptions for informed consent to medical treatment that one is a medical emergency and another is rare, when by certain court-ordered treatments or tests mandated by law. In the instant case it was a planned surgery, which needs proper informed consent. [Para 12].
(C) Consumer Protection Act, 1986 – S. 21(a)(i) – [Consumer Protection Act, 2019 – S.58(1)(a)(i)] – Services – Medical Negligence – Deviation from SOP – negligence attributed – Vicarious Liability of hospital and treating doctor - act of ‘Commission’ and ‘Omission’ - prior to surgery it was the duty of OP-2 to conduct nerve conduction studies and neurological assessment. It was also necessary to seek opinion or assistance of competent Neurosurgeon before surgery and also during surgery. It was the failure of duty of care from OP-2 - The hospital (OP-1) failed to provide the purchase invoice, installation report, training record of the operating person of Neuro-Monitoring Machine used during the instant surgery. The OP-1 deliberately concealed Annual Maintenance Contract(AMC), service report of the machine which used , but filed AMC service report of the machine which was not used during the surgery - Though the mode of treatment/ skill differ from doctor to doctor and if he performs his duty with reasonableness and with due care, he cannot be held negligent. However in the instant case it was deficiency in service and failure of duty of care from the OP-2 who performed the spinal surgery without an informed consent and without the assistance of Neurosurgeon. The operative notes are devoid of many details viz the time of commencement of the surgery, closure of wounds, the time of wake up test was done and the patient’s loss of legs movements and when the corrective surgery commenced and ended. The Neuro-monitoring details are not available. The corrective surgery was performed after delay of 4 hours which was sufficient to cause permanent damage to the cord – Therefore, OP-2 is held liable for the act of ‘Commission’ and ‘Omission’ during the treatment of the patient. Also, the hospital is vicariously liable for the deficiency in services. It was the duty of hospital to ensure standard of patient care. The doctors or the concerned staff were accountable, who failed to adhere to the Standard operating procedures (SOP) – therefore, in the ends of justice, in the view of the Commission, Rs. 40 lakh shall be the just and adequate compensation be paid to the Complainants by the OP-1 hospital and the treating doctor OP-2 in equal proportion - The Complaint is partly allowed. [Paras 14 to 20].
Result: Complaint allowed.
ORDER
Neurosurgery and Orthopaedic surgery are two high-risk specialties associated with some of the highest number of medical negligence litigations. Amongst those the spinal surgery, most commonly at the lumbar level, has the highest rates of litigations. Informed consent is a significant allegation in most of the cases after spinal surgery.
This Complaint was filed by Sh. Sanjeev Jaswal, father of Complainant No. 1 Rohandeep Singh Constituted Attorney against Kokilaben Dhirubhai Ambani Hospital and Medical Research Centre, Mumbai & its 12 Doctors (hereinafter referred to as ‘Opposite Parties’) for the alleged medical negligence and deficiency in service on the part of Opposite Parties.
Facts:
2. In the year 2004, the Complainant No. 1, Mr. Rohandeep Singh (hereinafter referred to as ‘the patient’) at the age of 12 years for his kypho-scoliosis’ spinal deformity consulted at Sir Ganga Ram Hospital,Delhi. It was diagnosed as D3-D7 intra-medullary tumour and operated on 11.10.2004 at Sir Ganga Ram Hospital. The tumour was reported as’Ganglioglioma’ a non-cancerous tumour. The doctors advised the patient’s parents to keep watch for growth of tumour. Accordingly, every year MRI was conducted. In year 2012, MRI revealed shrunken size of tumour. The parents agin sought opinion from Sir Ganga Ram Hospital for correction of scoliosis, but the doctors opined possibility of correction of deformity up to maximum 50 to 60% only. In the mean time, the Complainant was transferred to Ahmadabad and they took further consultation at ‘Shalvy Hospital’ in Ahmedabad. The doctors therein expressed 65% correction of scoliosis was possible. They advised to undergo surgery where the Neuro-monitoring machine and facility available, it was to avoid any neurological complications during surgery.
3. Accordingly, on 17.02.2014 the patient consulted Dr. Mihir Bapat (OP No.2) at Kokilaben Dhirubhai Ambani Hospital (herein referred to as ‘the Hospital’ - OP-1). On 04.03.2014 CT scan and few investigations were performed. It was alleged that OP-2 told the patient and his family members that as spine was very flexible and correction up to 80% to 90% was possible. The surgery was fixed on 16.04.2014, but surgery was deferred to 23.04.2014 as the ‘Neuro-Monitoring’ machine was under maintenance.
4. On 23.04.2004, the patient was operated by OP-2. It was alleged that no informed consent was taken. The surgery took long time from 7 a.m. to 4 p.m. After the surgery the patient was shifted to room. The OP-2 came to room and informed the patent’s parents that the patient regained consciousness, but not moving his legs, therefore re-surgery was necessary for releasing the implants and to reduce the correction as carried out in the spine. The parents were shocked to learn about no leg movements and patient lost senses below his chest (rib and cage) after the surgery. It was further alleged that, the patient heard the doctors’ conversation that they should not have accepted and operated the case. The OP-2 did not inform the condition as it was ‘Paraplagia’. Thereafter, condition of the patient continued to deteriorate. On 02.05.2014, he got 103°F fever and again shifted to ICU on 03.05.2014. It was diagnosed as ‘Pyogenic Meningitis’ and the CSF culture detected bacterial infection “Acinetobacter Baumennii Meningitis”. On 27.07.2014 the patient was discharged from OP-1 Hospital in Paraplegic condition( loss of senses below rib cage), no bowel and urine control, Therefore, for daily routine activities of the patient an attendant was needed. Thereafter, the patient was admitted to Dhirubhai Ambani Occupational Health from 27.07.2014 to 07.02.2015. The family consulted number of doctors, but patient’s condition did not improve. As advised by Dr. Bhoj Raj on 04.10.2014 contrast CT Myelography test was performed. It revealed D-8 vertebra slightly wedged before surgery, it got totally crushed during the surgery indicating severe stretching or blockage at the point of vertebr
