(Passed on 30/08/2022)

Passed by Shri Atul D. Alsi, Hon’ble President 

1.         The complainant filed complaint case for medical negligence in conducting the  operation  of Hernia  by taking improper  decision  of open  surgery  instead of Laparoscopy  surgery by  negligent  and careless  manner  resulting  in death  of mother  of complainant  and thereby  claiming  compensation of Rs. 18,00,000/- along with  cost.

2.         The story in short is as under,

i.          The complainants are the son of deceased Mrs.  Sheela Dhyanchand Dhote, retired School Teacher of 65 years old and residing at Chandrapur. The deceased who was feeling some pain in her abdomen in the month of October-2013. Therefore on the recommendation of Mr. Thamke the patient approached to O.P. on 17/10/2013 and after conducting preliminary test and  sugar test. The O.P. told the patient that operation of Hernia to be conducted by Laparoscopy operation.  The O.P. told the patient  that  operation  would be conducted by Laparoscopy method as there is  no risk in operation  and operation would be successful and would  takes  about  1 and 1/2 hours and  she  can  start her  daily  routine  after  two to four  days.

ii.          On 21/10/2013 the deceased was admitted in Operation Theater and operation started at 11.00 a.m. live on the Monitor Screen but after some time it was stopped. At about  4.30 p.m. the doctor  told  the  applicant No. 1  in  operation  theater a minor complication  regarding  intestine  has arisen  and those  intestine  needs to be cut. The applicant No. 1 told  the doctors/O.P. in this situation  it is better  to stop and take  consent  of patient  after getting conscious.  In spite of that  the non applicant  continue  the operation  and came out  from operation theater at 4.30 p.m. and told that  the  Laparoscopy operation   for  Hernia could not be  conducted  properly  therefore they have  opted  to  conduct  the  operation  by  open  surgery method and  some parts of  intestine and fats  have been removed and  have  patched it with  two  Net mesh. That earlier it was told by the O.P. while conducting operation the expert surgeon from Nagpur will be called but no such doctor was called and operation was performed with the help of junior doctors. Thereafter, the patient was shifted in to ICU from Operation Theater.  The O.Ps. have  first two hours  try to  conduct Hernia  operation  by way of Laparoscopy method and without  consent  of  patient  or  complainants  the operation  was  conducted by open surgery  method.

iii.         On 22/11/2013 the  patient’s  condition  was serious and  therefore she was again  shifted  to ICU and  thereafter  kept  on ventilator. The patient had breathing problem and O.P. suggested chest X-ray and the report   was negative   as per opinion given by Dr. Mr. Bendle. The patient was admitted the O.P. demanding to pay the medical bills by shouting in ICCU unit also.  The complainant paid Rs. 1,13,000/- for the  medical  bills  from 21/10/2013 to 28/10/2013.  The Air conditioners in  ICU were not working properly therefore,  i.e . the reason  of  deteriorate  condition  of deceased. The O.Ps. could not take precaution  and utmost  care  from beginning  and after post  operation period  and failed  to diagnose  the  patient  properly and because of that  unnecessarily tests were  done without  opinion  of expert.  Consequently, the patient died on 30/10/2013 in the hospital of O.Ps. due to careless, wrong diagnosis and negligence in treating the patient.  The O.Ps. failed to provide necessary medical papers, test reports, etc.  Therefore, legal notice through Adv. Mr. Kullarwar has been issued.  After receipt of notice O.P. has supplied the case papers which are prepared after words. Therefore,  this  the clear case  of medical negligence while conducting   operation  of  alleged  Hernia   by  open surgery  instead  of Laparoscopy method without  taking  in to any consideration of any further  probable complication and O.Ps. has not  done  pre operation   medical  test  although the patient  was  high risk patient.

iv.        As per Doctor’s statement  she had for the first time had  fixed 2 meshes for hernia operation  in her life which  means  she did not  have  experience  nor  a proper diagnose  as the operation  was not planed  and she could not  estimate  the  exact size  of  hernia and has not  selected  the exact size of  mesh as per  exact size of  Hernia. It is mandatory for conducting Pulmonary Function Test (PFT) before the operation of Hernia. The Pulmonary Function Test (PFT) was necessary to know the lungs capacity and its function. The O.P. did not use imported costly mesh which were promised before the operation.  The damaging of intestine during  Laparoscopy  created  an unwanted  and critical situation of  patient  due  failure  technique of  Laparoscopy  while  handing  the patient.  The nurse on duty used to feed directly to the patient without knowing the quantity and timing of feeding without expert. The over dose  of  Anesthesia during  Laparoscopy  Surgery and in  open Surgery for  a  prolonged  period  of  6 hours  affected the function  of   organs   especially the function of lungs.  As per the non  applicant’s  statement  in  medical  file, the  patient  was  having Sickle-cell trait then  necessary precaution  were  not  taken during  operation  by the  O.P.  The patient came to the hospital on her foot and went to the operation theater by walking. The O.P. after operation did not suggest Physiotherapy which is often prescribes.  Therefore,  the patient  history was  neglected  and  improper  and hasty decisions  made failure of Laparoscopy with  open surgery  in  conducting  operation for  Hernia and  failure  to  take  preventive  measures  and due precaution  after  operation  which caused  bad effect on the  other  organs which amounts  to  medical  negligence. Consequently, grave mistake on the part of the O.P. which resulted in death of the patient. 

v.         Therefore, the complainants have constrained to file the complaint case against the O.Ps. to claim  compensation  for  medical  negligence.

3.         O.P. Nos. 1&2 filed reply and denied all the allegations against them and submitted that the patient  Mrs. Sheela Dhote came to O.P. Hospital  on 09/10/2013 as O.P.D. Patient.  The Non applicant No. 1 examined the patient. The patient history of Hysterectomy done 16 years before. After this operation  patient  was intermittently having  swelling and  pain of the abdomen, the patient  was  suggested  blood  investigations, ECG and USG of  abdomen and  necessary  sugar test.  The Non applicant No. 1 advised  surgery  after investigations  but did not  force  the patient  for surgery and  advised  her to take  own  time to  get  admitted for surgery of  Hernia. Hernia repair could be done either through Laparoscopic method or open. Before taking  the patient  in operation  theater the non applicant  No. 1 and  Dr. Jamaiwar expert  of  Laparoscopic  surgeon  of Nagpur explained  the  applicants that  if  during  operation  some adhesions in the abdomen is found then  they would convert the procedure  into to open surgery when it was not  possible  to  reduce the hernia and if there were some  problems  then  surgeon  has took decision  to convert open  surgery. No surgery whether it is minor or major without risk and non applicant No. 1 explained the advantages and disadvantages of Laparoscopy surgery and open surgery. The mother of the complainants’ is high risk patient having obesity, diabetes, hypertension and sickle cell. It was explained the risk and  good quality  of mesh that was being put in the abdominal wall for repair of abdominal hernia.  The complainants were   signed   the consent form in consultation chamber of non applicant No. 1 before  operation  with  both  method  of  surgery. 

4.         On 21/10/2013 Dr. Jamaiwar started operation at about 10.30 a.m.  Non applicant No. 1 was assisting him. Operation was started by Laparoscopic method by administering   spinal anesthesia which is the safest form of anesthesia but because of dense adhesions, Dr. Jamaiwar was unable to separate the bowel from hernia sac, so operation had to be converted into open surgery. Before conversion, the patient’s son was called in operation theatre and explained about the conversion. Therefore, the non applicant proceeded to open surgery.  For laparoscopic surgery live telecast facility was available but open surgery no such facility was available.  When the decision was taken to do open surgery, general anesthesia   was given since surgery was to take longer time.  In the  interest of  patient, surgeon can  always taken  decision  to  convert the  Laparoscopy  surgery into  open  surgery.

5.         On 22/10/2013 it was found that  blood urea percentage was  high so  injection Cidal was  discontinued and injection Fortum 1gm was  started   as per  opinion of Physician of patient  Dr. Bendale who has  to take post operative care of  patient  and surgeon has no role to play unless same  surgical  complications are found. The patient has not died because of carelessness or wrong diagnosis of non applicant.  The non applicant  take all   intra operative   as well as  post  operative care  which was  necessary with the help of ICU, Physician, Surgeon and nursing staff. The surgery was not in unplanned surgery. After examination  and investigation  and advised  from physician  and  the fact of high  risk, the consent from   complainant  in respect of high risk  surgery then the  O.P. operated the patient.  After surgery the patient was fully conscious in Operation Theater before shifting   the patient. Vital parameters were stable. So there was no question of overdose of anesthesia. Before shifting the patient to surgical ICU, the patient was talking to the relatives, then shifted to ICU. It is the hospital policy to shift all the surgical patients to surgical ICU for close observation and post operative monitoring.  Post operative the chest was clear. X-ray chest was done, it was normal. Daily physician was examining the patient. There were no pulmonary complications. The non applicants have been adhering to the best of the medical practices and ethics and using the best professional skill and competence. Therefore, there is no negligence on the part of the non applicants.  Hence, the case may be dismissed with cost.

6.         The counsel for the complainant  argued that  the non applicant  did not conduct  the test of  C.T. Scan or M.R.I. and  necessary laboratory test  but  took  decision  to conduct  the  Hernia  operation  by  Laparoscopy  method.   On 21/10/2013 for  conducting  operation  in  Laparoscopy  method  at 11.a.m. but after some time  it was  stopped  and complainants were called  and told that    minor complication  regarding  Intestine  has arisen  and  those intestine needs to be cut. Therefore, we told  the  doctors  to  stop  the operation  and  take  consent of the patient  after  she regain  consciousness, in spite of  this the non applicants continued the operation  and came out from  the  operation  theater  at 3.00 p.m. and told that  the Laparoscopy  operation  for  Hernia could not be  conducted  properly,  therefore,  they have opted  to  conduct  the operation  by  Open Surgery and   further  told that  some part of  intestine and  fats  and have  patched it with two Net Mesh.  No expert Surgeon from Nagpur was called and operation was conducting with the help of junior in experienced doctor. Thereafter on 22/10/2013 the patient   condition was started deteriorated as such she shifted again ICU and was kept on ventilator. The patient bed was kept near the bed of other patient therefore patient was could not sleep constant coughing and shouting for other patients.   Non submission of treatment paper and post operative care by the O.Ps. does amount to negligence of the service on the part of the O.P. Therefore,  O.Ps. are liable  for compensation.

7.         The counsel for the  O.P. argued that  the  consent of  change of  method of operation  has been taken  on behalf of the patient  to convert Laparoscopy Surgery  into Open  Surgery  and  cutting of  part of  the Intestine  and  fats. After  investigation  and necessary tests  and as per  advised  of Physician and with consent  from  patient  as well  as  necessary consent at the time of  operation  from  relatives  the surgery  was conducted.  As per medical norms of post surgery all care were taken with best available facility in the hospital. In the interest of  patient  the surgeon can take decision  to  convert Laparoscopy Surgery into  Open Surgery for  the  best  possible result for  the benefit of  patient  so shifting  type of surgery for the best result of  patient  is not negligence  on the part of the O.P. After trying of two hours by Laparoscopy the main Surgeon Dr. Jamaiwar and non applicant No. 1 took decision of conversion. In every r Hernia case not even U.S.G is advisable if hernia is irreducible then need to perform surgery.  The Non applicant No. 1  explained  the  advantages  and  disadvantages  of    Laparoscopy versus Open Surgery  and  that risk factor  exists in either  of them and  that  no surgery is without  risk. The Non applicant No. 1 also explained   all possible complications of surgery and high risk for the patient.  The Non applicants have not committed any deficiency on service due to untimely death of the mother of the complainants.  The Non applicants have taken all preventive majors and all care before and after operation. Therefore, there is no negligence on the part of the O.P. Therefore, the case is deserved to be dismissed with cost.

REASONING

8.         Patient – Mrs. Sheela Dhyanchand Dhote came to  Manwatkar Multispecialty Hospital  on 09/10/2013 as a O.P.D. patient. After investigation and examination with the consent of Physician Dr.  Bendale advised the operation of Hernia either by   Laparoscopy   or Open Surgery. As per prescription  letter  filed on record by the complainant  along  with  list of documents  dated  29/10/2015  and referred  the patient  to the  physician  for  opinion  accordingly.  The patient has history of hysterectomy done 16 years before and after that operation patient was intermittently having swelling and pain of abdomen. After opinion of the Physician and necessary investigations the patient was posted for surgery.  The Hernia repaired could be done through Laparoscopy   method or open. The O.P.No. 1 has filed  the history  and discharge card on record which  clearly  shows that  before  operation  and  during  operation  for  change of method  the O.P.No. 1 has obtained the necessary consent.  On 21/10/2013 at 10.30 a.m. the operation  was started  by  Laparoscopy   Method  by  administering Spinal Anesthesia but  because of  complications  when  the  bowel from hernia  sac was unable to separate  so the operation   had to be converted  in to open surgery. During operation   this fact was  changed of method  was communicated  to relatives  of the patient. When the decision was  taken  to do the  open surgery the general  anesthesia  was given since  the surgery  was given  to longer time.  There are two  method of surgery  available  for the  Hernia  operation  and the  professional surgeon  who accordingly  to  health  condition  of the patient and for the benefit  of the  patient  choice  the best method for successful operation and after complications the doctor converted  Laparoscopy   surgery into open surgery according to the  size of hernia for the  benefit of patient  does not amount to medical  negligence. After  operation  the patient  was shifted  to ICU and the Physician  who  used to  visit  the patient  for treatment.  After operation as per condition of health of the patient the necessary treatment and tests were carried  in the hospital of the O.P. No. 1.

9.         The complainant  has not filed any evidence of expert doctor or any report  from Civil Surgeon  in respect of the  O.P. failed  to  take  reasonable  care in  performing  the operation. It is the duty of the  complainant  to prove the medical negligence  by  appropriate  evidence of  doctor on  affidavit to prove    contentions  of  medical  negligence on the part of the O.P. A Doctor  is  expected  to  provide a reasonable  care  which is  not  proved to be lacking  in any  manner in the  present  case.  In Martin F. D.Souza Vs. Mohd. Ishfaq, 2009 3 SCC 1 the Court observed that the doctor cannot be held liable for medical negligence, when  reasonable  care has been  taken by Doctors in  performing  surgery or treatment. 

10.       In  Bolam Case , 1957 1 WLR 582 S.C. held that  it  is enough for  the defendant to show that  the standard of care and the skill attained was that of ordinary competent  medical  practitioner exercising an ordinary degree of professional skill. The fact that the respondent charged with negligence acted in accordance with the general and approved practice is enough to clear him of the charge. If unfortunately  the accident  or death  is occurred  it is necessary  that  the sufficient  material  or medical  evidence  should be available  before  adjudicating authority   to arrive at  conclusion  that  the death  is due to medical  negligence.  Every death of the patient  cannot on the   face  of it be  considered to be  medical negligence when simply   because  the patient  has not  favourable  responded   to   a treatment  given by  doctor or   a surgery   has failed, the doctor  cannot be held  straight  away  liable for medical  negligence  by applying  the  doctrin  of Res Ipsa Loquitor. Sometimes  despite  best efforts the treatment of a doctor  fails and same does not mean that the doctor or the surgeon must  be  held  for guilty of medical negligence unless there is some strong evidence to suggest that the  doctor  is  negligent. To indicate negligence there should be material available on record or else appropriate medical evidence should be tendered.  Here no other medical evidence tendered by the complainant to prove negligence on the part of the doctor. The complainant  has  not  laid  the  evidence of  expert doctor for the  alleged  medical  negligence except  their  own  affidavit.  On perusal  of medical  record produced   does not show any omission  in the  manner  of  precaution  to be taken  at the time of  surgery  and post surgery. When the patient  was in critical  condition  and if  she could not survive after  surgery  the  blame cannot be passed  on the  hospital and doctor  who provided  all possible  treatment  within  their  means  and  capacity.  The specialist  doctor  was available  and  also have attended  the patient  after  requisite care at all given  times and no doctor  can assure the life to  his patient  but  only  attained  to  treat his  patient  to the  best of his ability  which  was being  done in the present  case. Therefore, in the given facts and circumstances the Commission hold that the Hospital and Doctors are not guilty of medical negligence. Therefore, the complaint is dismissed as per following order.

ORDER

i.          Complaint Case No. CC/15/200 is dismissed. .

ii.          No order as to costs.

iii.         Copy of order be furnished to both the parties, free of cost.