Hyderabad: Holding an Orthopedic Surgeon and an Anesthetist attached to a Hyderabad-based hospital liable for the medical negligence in performing Inter Locking Nail (ILN) surgery of left leg (femur), the National Consumer Disputes Redressal Commission (NCDRC) has directed the surgeon and the hospital(for the negligence of their Anesthetist) to pay a compensation of Rs 20 lakh to the father of a patient who died.

The 27-year old patient sustained fracture of left leg (femur) due to fall in 2006. He took initial treatment in the local hospital at Vishakhapatnam and thereafter, was admitted to the hospital in Hyderabad where an Orthopedic Surgeon examined him. The investigation Arterial Blood Gas (ABG) revealed hypoxia. After examination, it was diagnosed as fracture left femur shaft fracture, acute lung injury with ARDS ((fat, marrow embolism). The doctors stated about need for O2 therapy. The treatment plan was surgery for fracture by Inter locking nail (ILN) fixation.

It was alleged that the patient was operated hurriedly on the next day without informed consent. Postoperatively the patient was kept on ventilator support. It was further alleged that the doctors and nurses did not attend him regularly despite pain and suffering. The treating doctors after 3 days informed the patient’s father about good recovery of his son. However, a few days later, suddenly the doctors informed him about death of his son. The father of the deceased alleged that despite requests the hospital did not issue entire medical record.

Aggrieved, the father filed a Consumer Complaint before the State Consumer Disputes Redressal Commission, Andhra Pradesh, alleging negligent treatment and the deficient services of the surgeon and the hospital causing death of his son. He prayed compensation of Rs. 25 lakh plus Rs. 25,000/- as costs.

Denying negligence during the treatment of the patient, the Hospital submitted that the patient was operated by the Orthopedic Surgeon with due diligence and utmost care.

Meanwhile, the surgeon, in his reply submitted that, “he patient was admitted under critical care. He performed Inter locking Nail (ILN) operation as per the established norms. The other doctors involved during the surgery were not made a party to the Complaint. He further submitted that since he was the head of the Orthopedics, concerned with surgical aspects and he had no control over the treatment of critical conditions. He personally discussed with Dr. Venkateswara Swamy, who was close associate of the patient and the attendants about the treatment and prognosis of the case. The surgery was performed after taking ‘special informed risk consent’ from the Complainant and Dr. Venkateswara Swamy. There was no deficiency or negligence from him.”

“Throughout hospitalization the patient was under the care of critical care team, who was maintaining ventilatory care in the ICU. Therefore, neither the Surgeon had any control nor his any team member had knowledge/expertise to interfere with the critical care treatment. He submitted that ILN of femur was performed by the Orthopedic team after the clearance from Dr. Satyanarayana, the head of critical care team. The patient died due to lung injury, which further led to ARDS and sepsis. He further clarified that, in 2008, he had already left the Hospital, but the complaint was filed with intention to just victimize him and damage his reputation,” he further submitted.

The State Commission, upon hearing the parties, held the surgeon and the hospital liable for deficiency in service for not obtaining consent of the complainant before the patient was kept on ventilator and not explained about complications. The Complaint was partly allowed and the doctor and the hospital were directed to pay jointly Rs. 2,50,000/- towards compensation and Rs. 2,000/- towards Costs.

However, dissatisfied with the amount of compensation, the complainant moved the apex consumer court. The counsel for the complainant reiterated the facts and argued that to know about the real cause of death, the hospital and the doctor failed to supply the medical record. He further argued that the State Commission, awarded meager compensation to the extent of Rs. 2.5 lacs only, but the complainant deserves enhanced compensation as the deceased patient left behind his parents and other family members.

In response, the counsel for the hospital and the surgeon submitted that “The State Commission failed to consider that after the surgery, the patient was under care of Anesthetist and under constant monitoring. The State Commission wrongly observed that the Anesthetist ought to have been summoned when the patient was suffering from hypoxia. He submitted that the Cardiologist was always present in the hospital for monitoring the patient. The State Commission wrongly held that there was no proper consent before application of ventilator, however, the consent was obtained from the Complainant’s brother. The Complainant failed to produce documentary evidence in this regard. Even, the State Commission did not seek any expert opinion.”

After hearing both the parties and perusing the medical record and literature on the subject, NCDRC noted that after admission, the Arterial Blood Gas (ABG) values revealed PO2 49.3 and O2 saturation only 83.4%. Therefore, for urgent immobilization, ventilatory support was advised. Thereafter, repeat ABG, it showed PCO2 33.9 and PO2 83.5. Clinically, ? fat embolism was suspected.

The Commission observed;

“In our considered view, initially it was necessary for the treating doctors to stabilize the patient by conservative treatment before the ILN of fracture femur. Moreover, it was the primary duty of the anesthetist to treat the emergency and serious effects fat embolism. There was need for complete oxygenation of the patient, but without proper assessment, in haste the ILN surgery was performed. It was not a reasonable standard of practice of the Orthopedic Surgeon and the anesthetist. It was utter failure of duty of care from the Hospital and the surgeon, thus medical negligence.”

It added,

“From the record, it is amply clear that the patient was already in the compromised hypoxic state due to fat embolism and lung injury. It is surprising, before the surgery the treating doctor failed to seek physician’s opinion and do proper evaluation. The Anesthetist also acted carelessly, failed to do pre-anesthetic check-up before giving the fitness for proposed ILN surgery Therefore, medical negligence is attributable to the Anesthetist for an ‘act of omission’ and over enthusiasm, the ‘act of commission’ of the Orthopaedician (Opposite Party No. 2), who performed ILN immediately. As per medical literature, the fractures of long bones are known to produce fat embolism, which is very fatal condition. In the instant case, the ILN surgery further precipitated the fat embolism or thromboembolism. Therefore, we have no hesitation to hold liable both the doctors i.e. the Anesthetist and the Orthopaedician for the medical negligence. Any Surgeon with ordinary prudence from the clinical symptoms and signs shall suspect fat embolism. At the admission itself the patient presented with classic signs of fat embolism, but it was left untreated or uncared. The treating surgeon (Opposite Party No. 2) should have also been vigilant and should have been expressed his apprehension/risk to perform ILN. We further note that the role of Anesthetist was crucial in this case, but the Complainant has not impleaded him as one of the Opposite Parties. In our view, at this stage, impleading the Anesthetist will certainly delay the consumer justice, which will ultimately defeat the object and statement of the Act, 1986. The incident occurred in 2006 and now we are in 2022. The anesthetist was from the Opposite Party No. 1 hospital; therefore, the hospital shall be vicariously liable for the negligence of their Anesthetist.”

The Commission held the hospital and the surgeon liable for failure in duty of care, fortifying from the decision of Hon’ble Supreme Court in the case of Dr. Laxman Balkrishan Joshi Vs Dr. Trimbak Bapu Godbole and Anr, wherein, it was observed;

“The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding whether treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged. In the light of the particular circumstances of each case is what the law requires.”

The apex consumer commission held;

“In the instant case the act of the hospital and the surgeon was not a bonafide mistake, but it was negligence is attributed to the treating doctor. We cannot ignore that, the deceased left behind the parents and other family members. The compensation Rs. 2.5 lac awarded by the State Commission seems to be unjustified and inadequate. Therefore, considering the facts and peculiar circumstances of this case, in the ends of justice we enhance the compensation to Rs. 20 lakh as just and adequate.”

It added;

“The Hospital and the surgeon are directed to pay the total compensation of Rs. 20 lakh, out of which, the Hospital (Opposite Party No. 1) shall pay Rs. 15 lakh and the Orthopedic Surgeon (Opposite Party No. 2) shall pay Rs. 5 lakh to the Complainant within six weeks from today, failing which the amount shall carry interest @ 10% per annum till its realization. However, there shall be no order as to costs.”

To view the original order, click on the link below:

http://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidin=0%2F0%2FFA%2F215%2F2011&dtofhearing=2022-08-26

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