State Consumer Disputes Redressal Commission
Gyan Dev Shukla vs Sargikal Clinic And Oth. on 4 December, 2023
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UP C-1 Vikrant Khand 1 (Near Shaheed Path), Gomti Nagar Lucknow-226010 Complaint Case No. CC/116/2016 ( Date of Filing : 03 May 2016 ) 1. Gyan Dev Shukla Fatehpur ...........Complainant(s) Versus 1. Sargikal Clinic and Oth. Lucknow ............Opp.Party(s) BEFORE: HON'BLE MR. Rajendra Singh PRESIDING MEMBER HON'BLE MR. SUSHIL KUMAR JUDICIAL MEMBER PRESENT: Dated : 04 Dec 2023 Final Order / Judgement Reserved State Consumer Disputes Redressal Commission U.P. Lucknow. Complaint Case No.116 of 2016 Gyandeo Shukla s/o Sri Ram Jiyawan Shukla, R/o Hanumant Nagar Colony, near J.K. Public School, Collector Ganj, Thana Kotwali Nagar, District, Fatehpur. ...Complainant. Versus 1- Surgical Clinic, Surendra Nagar, Faizabad Road, Lucknow through Proprietor/partner/Authorized Officer. 2- Dr. Sumit Seth, Proprietor, Surgical Clinic, Surendra Nagar, Faizabad Road, Lucknow. 3- Dr. Arun Kumar Srivastava s/o Sri Banwari Lal Srivastava, R/o House no.1/32, Vivek Khand, Gomti Nagar, Lucknow. 4- Dr. Smt. Varija Seth, through Surgical Clinic, Surendra Nagar, Faizabad Road, Lucknow. 5- Dr. Virendra Kumar Singh, through Surgical Clinic, Surendra Nagar, Faizabad Road, Lucknow. 6- Dr. Sanjeev Bhatia, through Surgical Clinic, Surendra Nagar, Faizabad Road, Lucknow. ....Opposite parties. Present:- 1- Hon'ble Sri Rajendra Singh, Member. 2- Hon'ble Sri Sushil Kumar, Member. Sri Prateek Saxena, Advocate for the complainant. Sri Vijay Pratap Singh, Advocate for OPs no.1, 2 & 4. Sri Neeraj Paliwal, Advocate for OP no.3. Sri Abhinav Singh, Advocate for OP no.5. Sri Gyan Shankar Shukla, Advocate for OP no.6. Date : 14.12.2023 JUDGMENT
Per Sri Rajendra Singh, Member- This complaint has been filed by the complainant Gyandeo Shukla against the opposite parties under section 17 of the Consumer Protection Act, 1986.
The brief facts of the complaint case are that, that the complainant is a simple living, salaried person of middle-class family and the father of the deceased Shivam Shukla . The son of the complainant was living with his brother Satyam Shukla and was preparing for civil services. For this purpose he was living in Lucknow. He suffered abdominal pain many times and when he informed the complainant, the complainant took him to a doctor at Fatehpur and on whose advice his ultrasound examination was done at "Fatehpur Scans Pvt. Ltd." on 27.06.2014. As per report of the ultrasound he had a stone of 9.9 MM in his gallbladder. This report was shown to the Dr who consoled him and gave some medicine and assured that he will be alright otherwise operation will be performed. When the complainant again complained of pain, the complainant took his son to Kanpur and again his ultrasound examination was done on 26.10.2014 at "Adarsh Diagnostic Centre". As per report there is a stone of 7.5 MM and 6.1 MM in the gallbladder. Thereafter on the advice of some relatives he was shown to a homeopathic doctor but did not get any relief which will adversely affecting his preparation for the civil services so that the local doctor advise his treatment to be done at Lucknow.
The complainant took his son to Ram Manohar Lohia Hospital at Lucknow on 13.07.2015 where opposite party-3 Dr Arun Kumar Srivastava examined his son and advised for many tests. These tests were performed at "Vasudha Diagnostic Centre" where the ultrasound examination was also done. After 2-3 days the complainant on 17.07.2015 took his son to OP-3 who stated that the tests are normal and there is need of operation of the gallbladder for removal of the stones and it is on your wish as to when do you want operation. Regarding procedure of operation, the opposite party - 3 told that there are two techniques, first one is by Laser and other by way of open surgery. The laser process is costlier but safe. The other operation by open surgery will be performed in this hospital and it will cost about ₹ 10,000/- but in laser technique the cost will be ₹ 20,000/-. He advised for laser operation for which the complainant agreed but it is told that this operation will not be done at this hospital. He advised complainant to get his son operated in some other hospital or nursing home which will cost about ₹ 40 to 45,000/-.
The complainant asked that you are a government doctor and private practice is barred by the government, he replied that everything happens. Thereafter the complainant became ready to get his son operated in a private nursing home under the observation of OP-3. OP -3 told the complainant to come at 8 AM on the date of operation after deciding the date of operation and then the name of the nursing home shall be disclosed. The complainant decided the date for operation as 20.07.2015 so that his son may be cured at the earliest. On 20.07.2015, the complainant telephoned OP -3 and told him about the operation. The OP-3 told the complainant to reach Surgical Clinic of Dr Sumit Seth , Surendra Nagar, Faizabad Road, Lucknow OP-1. There was no proper arrangement for the operation but the complainant trusting the ability and capability of OP-3 got his son admitted there and completed all the formalities. At about 12.30 the doctor present administered glucose to the son of the complainant which ran till 2 PM. At about 2 PM, the OP-3 came to the nursing home and asked the complainant to pay ₹ 40,000 which was paid in cash but no receipt was given to the complainant. Thereafter the OP-3 with other Dr including a female doctor went to the operation room and started the operation. After one or one and half hour OP-3 demanded two units of blood and asked him to go to Dr Tripathi of blood bank situated at Ram Manohar Lohia Hospital. The complainant after receiving the requisition of two units of blood reached Ram Manohar Lohia Hospital and met Dr Tripathi who managed two units of blood for ₹ 800/- and handed over to the complainant's son who immediately brought it to OP-3 and gave it to him. After 10-15 minutes the OP-3 again demanded two units of blood. The complainant again made arrangements and brought two units of blood and gave to the OP -3. When enquired about his son's condition, the OP-3 did not give any answer but said that some more blood may be needed.
When no information has been given till 5:30 PM, the complainant's son Satyam forcefully entered into the operation theatre and saw his brother on the operation table and there was about 15 inches incision in his stomach and the floor was flooded with blood as if any animal has been cut. There was oxygen pipe in his mouth. The cloth was also full of blood. The OP-3 became nervous to see the complainant's son and asked him to go out of operation theatre. The complainants son requested OP-3 to treat his brother and if it is not possible here then send him to some hospital or medical college. The OP-3 said that there is no need to go anywhere and turned his son out of the operation theatre but he was feeling that his brother is no more. After some time the OP-3 told the complainant that the condition of his son is deteriorating and it needs ventilator which is not available in this nursing home therefore he will have to send his son to Lohia Hospital. The complainant agreed but the doctor could not arrange any medical ambulance therefore the complainant arranged a private ambulance and took his son to the Lohia Hospital where he was directly admitted to the ventilator unit and the OP - 3 went away from the spot and after some time the complainant was told about the death of his son.
Thereafter the doctor wanted to handover the dead body of his son but the complainant insisted for post-mortem of his son and on the request of the complainant the post-mortem of his son was performed on 21.07.2015. Thereafter FIR has been lodged against the opposite parties on 20.07.2015 at police station Gomti Nagar under section 304 (crime number 207/2015). The complainant complained against OP -3 in Ram Manohar Lohia Hospital and also requested the investigating officer to refer it to the CMO for medical enquiry against the OP-3. An enquiry committee has been instituted under the chairmanship of Ritu Maheshwari (Administration) in which other doctors were Dr. M.K. Gupta, Anesthetist, Dr. S.P.M. Medical Officer, Lucknow, Surgeon Dr. Sadanand as members. The enquiry committee has submitted its report stating that OP-3 knowingly and for his benefit, asked the complainant to get his sonoperated outside a private nursing home by laparoscopic method. It is also stated in the report that without any legal training certificate, OP-3 was performing the sensational operation jeopardizing the life of the patient is not correct.
The enquiry committee has also made clear that there is deficiency of service on the part of OP-1, 2, 4, and 5. According to the conclusion of the enquiry committee there was no proper equipment/proper medical protocol was available with the opposite parties which shows acute deficiency and negligence on the part of the opposite parties. The complainant was forced to get his son admitted in such a nursing home lacking proper paraphernalia of operation. There was no ventilator in the said taxi home and also there was no ambulance. The complainant trusted on the OP -3 for undergoing laparoscopic operation but it is clear that he was not competent for laparoscopic operation as per the enquiry commission report. In the police investigation the OP-2 has admitted himself as the owner of Surgical Clinic, OP-1. Without any qualification the complainant's son was operated by the opposite parties resulting in the death of his son. The anaesthesia was given by Dr. Virendra Singh, OP-5. In the operation theatre there was Dr. Varija Seth, OP-4 and Dr. Sanjeev Bhatia, OP-6. All these doctors concerned knowing the condition of the complainant son did not refer his son to any higher medical Centre or medical college. They did not provide ambulance for taking his son to the RML Hospital where he was put on ventilator. All responsible for the carelessness and negligence.
From the enquiry report it has become clear that due to this operation there happened injury in the inferior Vena Cava of the complainant's son which is the main artery in the body and due to excessive blood loss complainant's son died. This injury has been caused in the very beginning and for this reason that complainant was asked for arrangement of blood again and again. All these things show negligence on the part of the opposite parties. The complainants son died on the operation theatre but the opposite parties to conceal their shortcomings, referred his son to RML. The opposite parties illegally did not admit the complainant son at RML and pressurised him to go to a private nursing home for his son's operation where proper infrastructure was totally lacking. The complainant's son was murdered by the opposite parties. The complainant filed this complaint case for the following reliefs before this Hon'ble Commission :
The opposite parties be directed to pay to the complainant ₹ 75 lakhs for showing medical negligence and the loss occurred to his family.
The opposite parties be directed to pay to the component ₹ 15 lakhs towards mental torture, depression and economic loss with interest at a rate of 18% per annum.
The opposite parties be directed to refund the operation fee of ₹ 40,000 to the complainant with interest at a rate of 18% per annum.
The opposite parties be directed to pay ₹ 1 lakh for cost of the case and travelling expenses.
The opposite parties be directed to pay any other relief which the Hon'ble commission may deem fit and proper in this case.
The opposite parties-1 & 2 have filed their written statement in which they have stated that the nursing home of the answering opposite parties is duly approved and is registered for general surgery and Gynae under in the office of the Chief Medical Officer, Lucknow with registration number HOS/13/326 in the year, 2013 and it has been duly renewed every year and had valid registration even on the date of surgery. As per requirement and guidelines for setup of new surgical clinic and every requirements/equipment are present in the surgical clinic. The patient was admitted and the drip was started according to the instructions of the surgeon (OP-3). The statement that the nursing home did not have adequate facilities is not acceptable as the nursing home is duly registered with the CMO, Lucknow which is the regulatory body for private nursing homes. The blood requisition forms were made and given by opposite party-2 when asked by opposite party-3. After investigation by the police, the police has not filed chargesheet against the answering opposite parties-1 & 2. The investigating officer found that there was no material against the answering opposite parties therefore in the chargesheet the answering opposite parties have not been mentioned as an accused. The Hon'ble High Court, Lucknow recorded finding in favour of the answering opposite parties that there is no evidence, during course of investigation against the answering opposite parties in the judgement and order dated 17.11.2015.
It is forcefully submitted that the nursing home had all the facilities to conduct the operation of cholecystectomy. The answering opposite parties have not been called for an enquiry so the burden of proof lies upon the complainant to prove his case. It is stated that if the opposite party -2 had been provided an opportunity he could have easily proved that OT of the nursing home had all the facilities for ventilation and the nursing home had proper arrangements for ambulances. The statement that the nursing home did not have adequate facilities is not acceptable as the nursing home is duly registered with the CMO. The Centre has proper arrangement for ambulance and the ambulance was arranged by the nursing home and the charges were to be borne by the complainant which he did not , hence the nursing home had to pay the ambulance charges, hence no negligence. In order to show the breach of duty, the burden lies on the complainant, first to show what is considered as reasonable care under the given circumstances and then that the conduct of the answering opposite parties was below such degree of care. The claimant has neither produced prima facie evidence in the form of a credible opinion given by another competent Dr to support the charge of rashness or negligence on the part of the answering opposite parties and now the complainant makes out the case that the answering opposite parties are rash and negligent.
The alleged enquiry report which is being heavily relied upon by complainant is merely a fact-finding enquiry report of the committee constituted for conducting fact-finding enquiry against opposite party-3 in a service -related violations. The aforesaid fact-finding enquiry was not against answering opposite parties and has been conducted behind the back of the answering opposite parties without even recording the version of the answering opposite parties. Opposite party-2 is a respectable general and Laparoscopic Surgeon in Lucknow, he did his MBBS and MS from reputed Government Colleges. He could establish a 10 Bedded Nursing Home after nearly 10 years of hard work. After duly getting his nursing home registered with the authorities he was catering to the low and middle-income population of the society. The complainant has already received an amount of ₹ 20 lakhs as compensation on 10 November 2015 from the State Government in cash as published in the news paper on 11 November 2015, along with the assurance for the job for the brother and sister of the deceased. Regarding the facilities in the hospital, the complainant and their family were well informed about the facilities available in the hospital as is evident from the handwritten consent and also substantiated by the complainant themselves. The complainant has repeatedly, wrongly, baselessly and mysteriously alleged that the hospital had no facility for ventilation and ambulance. It is verified that the OT of the nursing home had all the necessary equipments and almonds for ventilation and in the absence of which no anaesthesia/surgery could be performed. For the facts and circumstances stated above, it is most respectfully prayed that the Hon'ble Commission may graciously be pleased to dismiss the above noted complaint case being not be tenable under the provisions of the Consumer Protection Act 1986 as against the answering opposite parties.
The opposite party-3, Dr. Arun Kumar has submitted his written statement denying all the allegations of the complainant and stated that the burden of proof lies on the complainant. He is a senior and reputed surgeon who has treated so many persons and saved their lives. He has been roped in this case maliciously and to lower his reputation in the society. He is a doctor in Ram Manohar Lohia Hospital where the outdoor slip cost ₹ 1 only and the hospital is of the State government and this commission has no jurisdiction to hear this case. The UP State accepting the medical negligence, awarded ₹ 20 lakhs to the aggrieved family out of the Chief Minister's Relief Fund on 09.11.2015.
The opposite party-4, Dr. Warija Seth has submitted his written statement stating that she was merely present in the hospital premises but has nothing to do with the operation. She was not made an accused in the First Information Report and after investigation the investigating officer did not find any material/evidence therefore no chargesheet had filed against her. The committee was formed to look into the role of Dr. Arun Kumar Srivastava, OP-3 and the answering opposite party had no interaction with the committee. The committee has not held the answering opposite party responsible for any type of negligence. In fact, in the entire report there is not a single word against the answering opposite party. The complainant is not a consumer of the answering opposite party and no deficiency of service or medical negligence has been committed by the answering opposite party. She was merely present to meet her husband and her mere presence in the premises is not enough to make her party to this dispute. So in the facts and circumstances stated above, it is most effectively prayed that this Hon'ble Commission may graciously be pleased to dismiss the above noted complaint case being not maintainable.
The opposite party-5, Dr. Virendra Kumar Singh, filed his statement in which he has denied the allegations of the complainant and stated that the hospital and doctors assured the answering opposite party that they have all the necessary clearances and licenses from competent authorities and further the hospital appeared to have all the necessary amenities generally required for administration of General Anaesthesia during such a treatment i.e, Laparoscopic Cholecystectomy. It is submitted that despite all possible efforts when the condition of the patient was not improved then the operating surgeon, the opposite party-3 decided to refer the patient to the higher centre i.e. Dr. Ram Manohar Lohia Hospital. As such the patient was shifted to Dr Ram Manohar Lohia Hospital with assisted ventilation with oxygen and monitor after stitching the abdomen and proper dressing of wound at 5:35 PM. The patient was admitted to Dr Ram Manohar Lohia Hospital, Gomti Nagar at 06:05 p.m. and subsequently declared dead after some time at 6:50 PM. It is submitted that the alleged enquiry report which is being heavily relied upon by the complainant is a merely fact-finding enquiry report of the committee constituted for conducting fact-finding enquiry against opposite party -3. The aforesaid enquiry was not against answering opposite party and has been conducted behind the back of the answering opposite party hence the aforesaid enquiry report has got no evidentiary value and the same cannot be used as evidence.
The complaint is absolutely misconceived, misleading and wrong and denied. From perusal of the aforesaid enquiry report it is evident that there is absolutely no mention about any inspection of the operation theatre by the enquiry committee hence on the basis of the aforesaid enquiry report (which is not admissible in evidence) no inference can be drawn against answering opposite party. It is submitted that no medical negligence or deficiency in service has been committed by the answering opposite party. The post-mortem report given by a team of medical experts comprising of four independent doctors shows that the cause of death of the son of complainant is shock and haemorrhage due to anti-mortem injuries (injury in the inferior Vena Cava ) sustained by the deceased which in itself is sufficient to cause death of the deceased. In the aforesaid post-mortem report it is mentioned that about 1 litre of blood was found present in abdominal cavity with a larger retroperitoneal haematoma. The aforesaid cause of death is not even remotely connected with the duties/role of anesthetist in surgery. The aforesaid post-mortem report proves beyond reasonable doubt that the answering opposite party has not been negligent during the operation.
The answering opposite party, in the capacity of anesthetist was called by the hospital to examine and administer anaesthesia for a Laparoscopic Cholecystectomy. Answering opposite party was performing his duty to the best of his abilities and he cannot be held responsible for any miss happenings taking place during the surgery particularly when the role of the answering opposite party was confined to the administration of anaesthesia which is not the cause of death. The answering opposite party reached nursing home at 2:40 and administered general anaesthesia to the patient as per standard practice during Laparoscopic and after few minutes when the operating surgeon put the laparoscope inside the abdomen profuse bleeding was found. The bleeding inside the abdomen was such which was impossible to stop by Laparoscope, hence operating surgeon decided to opt for open surgery to find out and repair the ruptured vessel, as such the role of the answering opposite party was limited to administering anaesthesia to the patient and to maintain the vitals of the patient during the entire operation. The complainant has not made any specific allegation against the answering opposite party. In order to show the breach of duty, the burden lies on the complainant , first to show what is considered as reasonable care under the given circumstances and then to show the conduct of the answering opposite party was below such a degree of care. The answering opposite party has completed his degree of MBBS from Moti Lal Nehru Medical College , Allahabad in the year 1981 and subsequently got himself registered with 'The Medical Council of the Uttar Pradesh ' . After rendering almost 30 years is spotless service the answering opposite party retired from Provincial Medical Services As Senior Consultant Anaesthesiology upon attaining the age of superannuation.
During operation conducted by the operating surgeon, the blood pressure of the patient became low and pulse became feeble hence the answering opposite party made possible efforts to maintain the vitals of the patient to the best of his abilities and with utmost care and caution. The alleged enquiry report which is being heavily relied upon complainant is merely a fact finding enquiry report of the committee constituted for conducting fact-finding enquiry against OP-3 in his service-related violations and the aforesaid fact-finding enquiry was not against answering opposite party. In the facts and circumstances stated above, it is most respectfully prayed that the Hon'ble commission may graciously be pleased to dismiss the above complaint case.
The opposite party-6 Dr. Sanjiv Bhatia has submitted his written statement in which he has denied the allegations of the complainant and stated that he was called by the hospital at 03:09 p.m. on 20.07.2015 to attend the emergency of vascular nature in operation theatre as he is a specialist and qualified vascular and plastic surgeon and an expert of the field having vast experience. The answering opposite party reached operation theatre in about 20 minutes and after preparing for OT saw the patient under anesthesia and Abdomen was open with bleeding profusely from post-wall of Abdomen. On exploration a rent of about 2 cm IVC seen on under difficult situation the opposite party-6 was able to repair the rent and after maintaining haemostatis he handed over the patient to the operative surgeon to perform his procedure and left the operation theatre which is evident from the operation note filed the by the complainant. It is pertinent to mention here that the complainant has not made any specific allegation against the answering opposite party - 6 and no medical negligence or deficiency in service has been committed by the answering opposite party towards the treatment of the deceased son of the complainant. Therefore it is most humbly prayed that this Hon'ble commission may graciously be pleased to dismiss the complainant.
We have heard the learned counsel for the complainant Sri Prateek Saxena, ld. counsel for opposite parties no.1, 2 & 4 Sri Vijay Pratap Singh, ld. counsel for opposite party no.3 Sri Neeraj Paliwal, ld. counsel for opposite party no.5 Sri Abhinav Singh and ld. counsel for opposite party no.6 Sri Gyan Shankar Shukla.
We have perused pleadings, evidence and documents available on records.
In this case, first we have to see the position of liver and gallbladder and inferior Vena Cava in a human body and also the position of inferior VENA CANA with the help of the following figures.
LIVER & GALL BLADDER- ANTERIOR VIEW INFERIOR VIEW ABDOMINAL VIEW So it is clear that this Vena cana is situated near gallbladder and let us see what the effect of its cutting during operation or which purpose itself in the body of a human being.
Vena cava veins take blood back to the heart.
The superior vena cava and inferior Vena Cava are very large veins that bring deoxygenated blood to your heart to get oxygen. Your inferior Vena Cava, your body's largest vein, carries oxygen - depleted blood back to your heart from the lower part of your body (below your diaphragm). Your superior Vena Cava, your second biggest vein, brings oxygen - poor blood from your upper body to your heart. Think of it like a bus line. The downtown line is like the smaller veins from your lower body (such as veins from your kidneys, liver and lower back area) that bring the deoxygenated blood into your inferior vena cava.
Blood from those other veins gets on the inferior vena cava bus to go to your heart.
Your uptown line (upper body) veins, such as the veins in your upper back and chest, take deoxygenated blood onto your superior vena cava bus for return to your heart. Your heart is the hub of destination where all the deoxygenated blood from the uptown and downtown bus lines (veins close bracket goes.) FUNCTIONS Your superior vena cava, and inferior vena cava, have the important function of carrying oxygen - poor blood to your hearts right atrium, where it moves into your right ventricle and then to your lungs (through your pulmonary artery) to trade carbon dioxide for oxygen. Oxygenated blood comes back through your pulmonary veins to your heart's left atrium. From there, blood that now carries fresh oxygen goes to your left ventricle and to your aorta for distribution to your body.
Your inferior vena cava and superior vena cava are both on your heart's right side. Your right and left innominate (or brachiocephalic veins merge to form your superior vena cava. Your superior vena cava is natural to the right side of your sternum and goes into your right atrium, where all the oxygen - poor blood goes. Your inferior vena cava is a little longer. It starts where the right and left common iliac veins come together in your belly area and goes up to the right atrium of your heart.
Your superior vena cava is a large vein that does not have a valve.
Your inferior vena cava is a large and long vein that has one valve where it meets your right atrium.
Vena cava are the body's largest veins. Your superior vena cava is 7 cm long (almost 3 inches) and 2 cm (less than 1 inch) wide.
Your inferior vena cava is about 100 mm (4 inches) long and 22 mm (less than 1 inch) in diameter.
Inferior vena cava The inferior vena cava (IVC) is the largest vein of the human body. It is located at the posterior abdominal wall on the right side of the aorta. The IVC's function is to carry the venous blood from the lower limbs and abdominopelvic region to the heart.
The inferior vena cava anatomy is essential due to the vein's great drainage area, which also makes it a hot topic for anatomy exams. For that reason, this page will cover the IVC anatomy in a way that's easy to read and understand.
Key facts Table quiz Definition and function The vein that collects deoxygenated blood from the abdomen, pelvis and lower limbs and carries it to the right atrium of the heart Source Common iliac veins (L5) Tributaries Inferior Phrenic, right Suprarenal, Renal, right Testicular (gonadal), Lumbar, common Iliac and Hepatic Veins Mnemonic: Portal System Returns To Liver In Humans Clinical relations Inferior vena cava thrombosis Anatomy Inferior vena cava Vena cava inferior 1/4 Synonyms: IVC The inferior vena cava arises from the confluence of the common iliac veins at the level of L5 vertebra, just inferior to the bifurcation of the abdominal aorta. It then ascends the posterior abdominal wall, to the right side of the aorta and the bodies of the L3-L5 vertebrae. After passing through its fossa on the Posterior Liver surface, the IVC enters the thorax by traversing the inferior vena caval foramen of the diaphragm.
The tributaries of the IVC correspond to the branches of the abdominal aorta. Note that some professors will want you to know at which vertebral level the IVC gets its direct tributaries, so they are as follows:
The direct tributaries are the inferior phrenic veins (T8), right suprarenal (L1), renal (L1), right testicular (gonadal) (L2), lumbar (L1-L5), common iliac (L5) and hepatic (T8). If you want an easy way to remember them just memorise the mnemonic 'Portal System Returns To Liver In Humans'.
Left gonadal and left suprarenal renal veins drain first into the left renal vein The veins of the stomach, spleen, pancreas, small and large intestines first empty into the hepatic portal vein. The hepatic portal vein carries this blood to the liver to be processed and detoxified. Then, the blood reaches the IVC through the hepatic veins.
The inferior vena cava communicates with the superior vena cava through the collateral vessels, which include the azygos vein, lumbar veins, and vertebral venous plexuses.
Inferior vena cava in a cadaver. Notice how the largest tributaries are the left and right renal veins.
Control of inferior vena cava injury during laparoscopic surgery using a double balloon-equipped central venous catheter: proof of concept in a live porcine model Abstract Background: Iatrogenic inferior vena cava (IVC) injury is a rare but potentially life-threatening complication during laparoscopic surgery. This experimental study aimed to assess the hemostatic ability of a new device, double balloon-equipped central venous (DB-CV) catheter, for IVC injury.
Methods: The DB-CV catheter comprises a triple-lumen sphincterotome combined with two dilating balloons having a diameter of 25 mm. The experimental procedures were performed in five pigs. The DB-CV catheter was inserted via the right femoral vein. For the IVC occlusion test, correct placement of the balloons was confirmed by indocyanine green fluorescence imaging, and hemodynamic data were recorded. For the IVC injury test, a 3- to 4-mm circumferential incision was created in IVC, and hemostasis was initiated using balloon inflation 5 s after the injury.
Results: Hemodynamic changes were minimal, with a 20 mmHg reduction in the mean arterial pressure because of IVC occlusion. All bleeding from IVC injuries was successfully temporarily stopped by direct balloon compression, with a mean time to hemostasis of 69 s and mean blood loss of 32 ml. Subsequently, the positioning of IVC injuries between two balloons made it possible to suture the injured IVC.
Conclusions: Balloon occlusion using the DB-CV catheter provides a rapid temporal hemostatic effect and can overcome the serious condition of massive hemorrhage from IVC injuries.
CASE HISTORY Miss K, who at the time of injury was aged 31, had a relatively complicated medical history and had suffered endometriosis for a number of years. She developed left iliac fossa (abdominal) pain which her surgeon, Mr Yanamandra, thought was due to pelvic adhesions (fibrous bands that form between tissues and organs). He thought a laparoscopy surgery to place a camera inside the abdomen might be necessary.
Miss K attended St Peter's Hospital in Middlesex via Accident and Emergency with flank (back) pain. It appears that there was some disagreement as to what was causing the discomfort. An exploratory laparoscopy was planned.
Three years later Miss K underwent the procedure under the care of Mr Yanamandra. During the procedure, a Veress needle punctured the inferior vena cava vein. This is one of the major veins which carries deoxygenated blood from the lower and middle body into the right atrium of the heart. Miss K required three units of blood, and a vascular surgeon was called to try and control her blood loss.
Miss K was transferred to the Intensive Care Unit (ICU) at St Peter's Hospital after the surgery. After a further week on the normal ward she was discharged.
She returned to hospital five days later, but she was sent home again despite having ongoing abdominal pain, not having opened her bowels or passed flatus (gas).
She returned to hospital the following day with ongoing abdominal pain, nausea and vomiting. A CT scan showed her small bowel was dilated and her colonic walls were thickened. A nasogastric tube was inserted to drain her stomach and Miss K was discharged eight days later without surgical intervention.
However, she was admitted two weeks later with further abdominal pain and nausea. Her small bowel had become increasingly distended and a laparotomy was performed. The small bowel adhesions and adhesive bands were divided, no abnormality was found.
The claimant has suffered ongoing bowel complications and remains on an altered diet since that time.
Oliver Chapman, specialist clinical negligence lawyer, was instructed by Miss K. He obtained medical evidence from a gynaecologist on breach of duty and causation and from a colorectal surgeon regarding the bowel complications subsequently experienced as a consequence of the adhesions.
We also obtained a report from a consultant psychiatrist as Miss K had also suffered a psychiatric injury as a result of the complications she had suffered. A plastic surgeon also give an opinion regarding the significant scarring she had.
The defendant admitted breach of duty, and made some admissions regarding the causative impact of the negligence, but also made some denials. However, the parties negotiated an out-of-court settlement of £80,000.
In the present case, it is also clear that during laparoscopic operation/laparoscopic a Veress needle may have punctured the inferior vena Vena Cava resulting in profuse bleeding which was found in the abdomen (about 1 L) and the brother of the complainant has seen the blood on the floor of the operation theatre and also on his clothes . It shows the negligence on the part of the operating surgeon. Why laparoscope cholecystectomy is so popular among the doctors?
Veress needle Whereas it is true that no operation has been more profoundly affected by the advent of laparoscopy than cholecystectomy has, it is equally true that no procedure has been more instrumental in ushering in the laparoscopic age than laparoscopic cholecystectomy has. Laparoscopic cholecystectomy has rapidly become the procedure of choice for routine gallbladder removal and is currently the most commonly performed major abdominal procedure in Western countries. [1] A National Institutes of Health (NIH) consensus statement in 1992 stated that laparoscopic cholecystectomy provides a safe and effective treatment for most patients with symptomatic gallstones and has become the treatment of choice for many patients. [2] This procedure has more or less ended attempts at noninvasive management of gallstones.
The initial driving force behind the rapid development of laparoscopic cholecystectomy was patient demand. Prospective randomized trials were late and largely irrelevant because advantages were clear. Hence, laparoscopic cholecystectomy was introduced and gained acceptance not through organized and carefully conceived clinical trials but through acclamation.
Laparoscopic cholecystectomy decreases postoperative pain, decreases the need for postoperative analgesia, shortens the hospital stay from 1 week to less than 24 hours, and returns the patient to full activity within 1 week (compared with 1 month after open cholecystectomy). [3, 4] Laparoscopic cholecystectomy also provides improved cosmesis and improved patient satisfaction as compared with open cholecystectomy.
Although direct operating room and recovery room costs are higher for laparoscopic cholecystectomy, the shortened length of hospital stay leads to a net savings. More rapid return to normal activity may lead to indirect cost savings. [5] Not all such studies have demonstrated a cost savings, however. In fact, with the higher rate of cholecystectomy in the laparoscopic era, the costs in the United States of treating gallstone disease may actually have increased.
Trials have shown that laparoscopic cholecystectomy patients in outpatient settings and those in inpatient settings recover equally well, indicating that a greater proportion of patients should be offered the outpatient modality. [6] Laparoscopic cholecystectomy has received nearly universal acceptance and is currently considered the criterion standard for the treatment of symptomatic cholelithiasis. [7, 6] Many centers have special "short-stay" units or "23-hour admissions" for postoperative observation following this procedure. [6] Data from all over the world have, however, shown that the risk of a bile duct injury (BDI) during laparoscopic cholecystectomy is about 0.5%--that is, about two the three times the risk previously reported for open cholecystectomy. [8] surgery through small incisions.
Asymptomatic (silent) gallstones The widespread use of diagnostic abdominal ultrasonography (US) has led to increasing detection of clinically unsuspected asymptomatic gallstones. This development, in turn, has given rise to a great deal of controversy regarding the optimal management of asymptomatic gallstones. [9] Cholecystectomy is not indicated in most patients with asymptomatic (silent) gallstones, because only 2-3% of these patients go on to become symptomatic each year. For an accurate determination of the indications for elective cholecystectomy, the risk posed by the operation (with individual patient age and comorbid factors taken into account) must be weighed against the risk of complications and death if the operation is not done. [10] Patients who are immunocompromised, are awaiting organ allotransplantation, or have sickle cell disease are at higher risk for the development of complications and should be treated irrespective of the presence or absence of symptoms.
Additional reasons to consider prophylactic laparoscopic cholecystectomy include the following:
Calculi greater than 3 cm in diameter, particularly in individuals in geographic regions with a high prevalence of gallbladder cancer Chronically obliterated cystic duct Nonfunctioning gallbladder Calcified (porcelain) gallbladder [9] Gallbladder polyp larger than 10 mm or showing a rapid increase in size [11] Gallbladder trauma [10] Anomalous junction of the pancreatic and biliary ducts without cystic dilatation of the common bile duct (CBD), because of a very high risk of gallbladder cancer Morbid obesity is associated with a high prevalence of cholecystopathy, and the risk of developing cholelithiasis is increased during rapid weight loss. Routine prophylactic laparoscopic cholecystectomy before Roux-en-Y gastric bypass (RYGB) is controversial, but laparoscopic cholecystectomy should clearly precede or be performed concurrently with RYGB in patients with a history of gallbladder pathology. [12] A normal gallbladder is often removed as a part of another surgical procedure (eg, liver resection, excision of a choledochal cyst, or pancreatoduodenectomy.
Symptomatic gallstone disease Biliary colic with sonographically identifiable stones is the most common indication for elective laparoscopic cholecystectomy. [10, 13] Acute cholecystitis, if diagnosed within 72 hours after symptom onset, can and usually should be treated laparoscopically. Beyond this 72-hour period, inflammatory changes in surrounding tissues are widely believed to render dissection planes more difficult. This may, in turn, increase the likelihood of conversion to an open procedure to 25%. Randomized control trials have not borne out this 72-hour cutoff and have shown no difference in morbidity when the procedure is performed by expert and experienced surgeons. Other options include interval laparoscopic cholecystectomy after 4-6 weeks and percutaneous cholecystostomy. [14, 15, 16] Biliary dyskinesia should be considered in patients who present with biliary colic in the absence of gallstones, and a cholecystokinin-diisopropyl iminodiacetic acid (CCK-DISIDA) scan should be obtained. The finding of a gallbladder ejection fraction lower than 35% at 20 minutes is considered abnormal and constitutes another indication for laparoscopic cholecystectomy. [17] Complex gallbladder disease Gallstone pancreatitis Once the clinical signs of mild-to-moderate biliary pancreatitis have resolved, laparoscopic cholecystectomy can be safely performed during the same hospitalization. Patients diagnosed with gallstone pancreatitis should first undergo imaging to rule out the presence of choledocholithiasis. This can be achieved by means of preoperative US, magnetic resonance cholangiopancreatography (MRCP), endoscopic retrograde cholangiopancreatography (ERCP), endoscopic US (EUS), or intraoperative cholangiography (IOC). [18] In cases of acute moderate-to-severe biliary pancreatitis (according to the Ranson criteria), laparoscopic cholecystectomy should be delayed. [19] Choledocholithiasis The following treatment options are available for patients found to have choledocholithiasis:
Preoperative endoscopic sphincterotomy and stone extraction Laparoscopic CBD exploration with or without T-tube placement Open CBD exploration with or without T-tube placement Postoperative endoscopic sphincterotomy In a patient with documented choledocholithiasis, a single laparoscopic procedure that treats both cholelithiasis and choledocholithiasis in a single setting is preferable. This approach appears to be cost-effective and to be associated with a shorter hospital stay than a two-stage procedure (eg, preoperative endoscopic stone extraction followed by laparoscopic cholecystectomy) would be. In experienced hands, laparoscopic CBD exploration appears to have high success rates (75-91%). The exact algorithm followed depends on local expertise.
Mirizzi syndrome In 1948, Mirizzi described an unusual presentation of gallstones that, when lodged in either the cystic duct or the Hartmann pouch of the gallbladder, externally compressed the common hepatic duct (CHD), causing symptoms of obstructive jaundice. [20] Although an initial trial of dissection may be performed by an experienced laparoscopic biliary surgeon, one must be prepared for subtotal (partial) cholecystectomy or for conversion to open operation and for biliary reconstruction. Endoscopic stone fragmentation at ERCP, with papillotomy and stenting, is a viable alternative to operative surgery for treatment of Mirizzi syndrome in the acute setting. [21] Subsequent cholecystectomy may be performed. [22] Cholecystoduodenal fistula Patients with cholecystoduodenal fistula leading to gallstone ileus should undergo exploratory laparotomy and removal of the stone, followed by exploration of the remainder of the gastrointestinal (GI) tract for additional stones. The fistula may be addressed at the time of the initial procedure but is probably better addressed at a second operation 3-4 weeks later, after inflammation has subsided. [22] Cholecystoduodenal fistula does not represent an absolute contraindication for laparoscopic surgery, though it does necessitate careful visualization of the anatomy and good laparoscopic suturing and stapling skills. [23] Acalculous cholecystitis A substantial proportion of patients with acalculous cholecystitis are too ill to undergo surgery. In these situations, percutaneous cholecystostomy guided by US or computed tomography (CT) is advised. As many as 90% of these patients demonstrate clinical improvement. Once the patient has recovered, the cholecystostomy tube can be removed without sequelae; this usually takes place at about 6 weeks. Interval cholecystectomy is not necessary. [24] Contraindications Absolute contraindications for laparoscopic cholecystectomy include an inability to tolerate general anesthesia and uncontrolled coagulopathy. Patients with severe obstructive pulmonary disease or congestive heart failure (eg, cardiac ejection fraction 20%) may not tolerate carbon dioxide pneumoperitoneum and may be better served with open cholecystectomy if cholecystectomy is absolutely necessary.
Many conditions once felt to be contraindications for laparoscopic cholecystectomy (eg, gangrenous gallbladder, empyema of the gallbladder, cholecystoenteric fistulae, obesity, pregnancy, ventriculoperitoneal shunt, previous upper abdominal procedures, cirrhosis, and coagulopathy) are no longer considered contraindications but are acknowledged to require special care and preparation of the patient by the surgeon and careful weighing of risk against benefit.
As surgeons have accumulated extensive experience with the laparoscopic technique, these contraindications have been discounted, and reports of successfully performed cases have become abundant. [37, 38] During a laparoscopic cholecystectomy, the surgeon makes small incisions in your abdomen. A tube with a tiny video camera is placed in your abdomen through one of the incisions. Your surgeon watches a video monitor in the operating room while using tools inserted through the other incisions to remove your gallbladder.
Now in this case it is clear that due to carelessness and negligence of the doctor, this inferior Vena Cava has been damaged/punctured and thereafter they failed to manage this damage ultimately the patient succumbed to death.
We have perused the post-mortem report which is scanned hereinbelow.
From the perusal of this post-mortem report there is ante mortem injuries which is stitched wound 22 cm long along with 22 stitched present in front of abdomen at midline 3 cm below nipples and sternum (surgical Laparotomy). The other is the was having a stiched wound ½ centimetres long along with 18 stitches present on outer lateral aspect of right side abdomen, 9 cm above and lateral to umbilicus.
When we see that on opening it has been written in post-mortem report, " Ecchymosis present underneath both injuries. Injury (2) is much relieved not going to abdominal cavity. Peritoneum and rectus repaired by Proline stitches present about one it of blood present in abdominal cavity. On evacuation GB intact, with large retroperitoneal haematoma. On eructation of the haematoma silk suture identified. Starting from below duodeno -jejuno flexor running on IVC (In Vena Cava )....interrupted fashion ; about 2-3 cm above bifurcation . Abdominal aorta intact jel from pack in abdominal cavity present ".
PROLENE™ Sutures (clear or pigmented) are non-absorbable, sterile surgical sutures composed of an isotactic crystalline steroisomer of polypropylene, a synthetic linear polyolefin. The suture is dyed blue to enhance visibility and does not adhere to tissue, making it efficacious to pull out when ready. So it is clear from the post-mortem report that due to rupture of Inferior Vena Cava the patient died and this proline stitches show that the plastic surgeon did this when he was called on.
Now we see the oath taken by a doctor and the important case laws regarding medical negligence vis a vis the maxim of res ipsa loquitur.
Now let us see the oath taken be a doctor before entering the nobel profession of the Medical World. As per guidelines of MCI, Every member should get it framed in his or her office it should never be violated in its letter and spirit.
"I solemnly pledge myself to consecrate my life to service of humanity.
Even under threat, I will not use my medical knowledge contrary to the laws of Humanity.
I will maintain the utmost respect for human life from the time of conception.
I will not permit considerations of religion, nationality, race, party politics or social standing to intervene between my duty and my patient.
I will practice my profession with conscience and dignity.
The health of my patient will be my first consideration.
I will respect the secrets which are confined in me.
I will give to my teachers the respect and gratitude which is their due.
I will maintain by all means in my power, the honour and noble traditions of medical profession.
I will treat my colleagues with all respect and dignity.
I shall abide by the code of medical ethics as enunciated in the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002.
I make these promises solemnly, freely and upon my honour."
The complexity of the human body and the uncertainty involved in the medical procedure are of such great magnitude that it is impossible for a Doctor to guarantee a successful result; and the only assurance that he can give, or can be understood to have given by implication is that he is possessed of requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him, he would be exercising his skills with reasonable competence. An ordinary physician or surgeon is not expected to be either a clodhopper or feckless practitioner of profession, as much as, he is not expected to be a paragon, combining qualities of polymath or prophet as in the realm of diagnosis and treatment, there is ample scope for genuine difference of opinion; and a Doctor cannot be treated as negligent merely because his conclusion differs from that of other persons in the profession, or because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care. Furthermore, a golden principle of law has been laid down by the Hon'ble Apex Court in Jacob Mathew Vs. State of Punjab, (AIR 2005 SC 3180) that no sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitor is not an universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors, else it would be counter productive. Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per-se by applying the doctrine of res ipsa loquitor. Yet, another golden principle of law has been laid down by the Hon'ble Apex Court in Indian Medical Association Vs. V.P. Santha's III (1995) CPJ 1 (SC) at para 37 that "it is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all complaints about deficiency rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out patient card containing the warning or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. Furthermore, it has been observed in Malay Kumar Ganguli's case (AIR 2010 SC 1162) that" charge of professional negligence on a medical person is a serious one as it affects his professional statusand reputation and as such, the burden of proof would be more onerous. A doctor cannot be held negligent only because something has gone wrong. He also cannot be held liable for mischance or misadventure or for an error in judgment in making a choice when two options are available. The mistake in diagnosis is not necessarily a negligent diagnosis." In the instant matter, thus a simple test, in the light of aforesaid observations, needs to be conducted in order to ascertain whether the Doctor is guilty of any tortious act of negligence/battery amounting to deficiency in conducting a surgery in the delivery of child and not properly attending the patient, the complainant and consequently, liable to pay damages for leaving cotton mass in the abdomen / stomach due to failure in surgery and deteriorating condition of the patient.
Now, it is required to be seen whether an expert report is necessary in each and every case relating to medical negligence or not ? It has been observed by the Hon'ble Apex Court in Indian Medical Association Vs. V.P. Santha III (1995) CPJ 1 (SC) at para 37 that "it is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all complaints about deficiency rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out patient card containing the warning or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. Furthermore, in B. Krishna Rao Vs. Nikhil Super Speciality Hospital 2010 (V) SCC513 at para 40 the Hon'ble Apex Court was pleased to hold that it is not necessary to have opinion of the expert in each and every case of medical negligence. The Hon'ble Apex Court was pleased to further hold in Nizam Institute of Medical Sciences Vs. Prashant S. Dhananka and others 2009 (VI) SCC 1 that "in a case of medical negligence, once initial burden has been discharged by the complainant by making of a case of negligence on the part of the hospital or the doctor concerned, the owner then shifts on the hospital or to the attending doctors and it is for the hospital to satisfy the court that there was no lack of care or diligence".
A doctrine or rule of evidence in tort law that permits an inference or presumption that a defendant was negligent in an accident injuring the plaintiff on the basis of circumstantial evidence if the accident was of a kind that does not ordinarily occur in the absence of negligencea plaintiff who establishes the elements of res ipsa loquitur can withstand a motion for summary judgment and reach the jury without direct proof of negligence-- Cox v. May Dept. Store Co., 903 P.2d 1119 (1995).
In Byrne vs Boadle, this maxim was used for the first time where the complainant was injured by a barrel that dropped from the window of the defendant. In the abovementioned case, Pollock, C. B., said "here are many incidents from which no presumption of negligence can arise, but this is not true in every case. It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out and I think that such a case will, beyond all doubt, afford prima facie proof of negligence."
This doctrine intends to help direct the court proceedings to a conclusion, especially if it is established through the implication of this doctrine's rule that the injury caused to the claimant would not have occurred or taken place if the defendant wasn't negligent. This also gives enough cause and evidence to hold the defendant liable for his negligent actions.
DOCTRINE OF RES IPSA LOQUITAR The thing speaks for itselfis the gist of the maxim Res Ipsa Loquitur Maxim. What are the essentials of this maxim.
The injury caused to the plaintiff shall be a result of an act of negligence.
There is a lack of evidence, or the evidence presented before the court is insufficient to establish the possibilities of the fault of the plaintiff or third party.
The defendant owes a duty of care towards the plaintiff, which he has breached.
There is a significant degree of injury caused to the plaintiff.
Applicability of Doctrine of Res Ipsa Loquitur.
The maxim of res ipsa loquitur came into force to benefit the plaintiff as he can use circumstantial evidence to establish negligence.
Consequently, it shifts the burden of proof on the defendant, logic being, where there is an event of unexplained cause, usually, the one that does not occur without the defendant's negligence in controlling the action which has caused the injury to the claimant or destroyed his goods.
In this scenario, the court shall presume negligence on the part of the defendant in such a case unless it includes an appropriate explanation compatible with his taking reasonable care.
In Achutrao Haribhau Khodwa and Others vs. State of Maharashtra and Others, it was considered that the maxim should not be applied in the case of general incidences of neglect and shall only be reflected when there is a significant degree of injury caused.
Section 106 of the Indian Evidence Act Section 106 of the Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Res ipsa loquitur is a Latin phrase that means "the thing speaks for itself." In personal injury law, the concept of res ipsa loquitur (or just "res ipsa" for short) operates as an evidentiary rule that allows plaintiffs to establish a rebuttable presumption of negligence on the part of the defendant through the use of circumstantial evidence.
This means that while plaintiffs typically have to prove that the defendant acted with a negligent state of mind, through res ipsa loquitur, if the plaintiff puts forth certain circumstantial facts, it becomes the defendant's burden to prove he or she was not negligent.
Res Ipsa Loquitur and Evidence Law Accidents happen all the time, and the mere fact that an accident has occurred doesn't necessarily mean that someone's negligence caused it. In order to prove negligence in a personal injury lawsuit, a plaintiff must present evidence to demonstrate that the defendant's negligence resulted in the plaintiff's injury. Sometimes, direct evidence of the defendant's negligence doesn't exist, but plaintiffs can still use circumstantial evidence in order to establish negligence.
Circumstantial evidence consists of facts that point to negligence as a logical conclusion rather than demonstrating it outright. This allows judges and juries to infer negligence based on the totality of the circumstances and the shared knowledge that arises out of human experience. Res ipsa is one type of circumstantial evidence that allows a reasonable fact finder to determine that the defendant's negligence caused an unusual event that subsequently caused injury to the plaintiff.
This doctrine arose out of a case where the plaintiff suffered injuries from a falling barrel of flour while walking by a warehouse. At the trial, the plaintiff's attorney argued that the facts spoke for themselves and demonstrated the warehouse's negligence since no other explanation could account for the cause of the plaintiff's injuries.
As it has developed since then, res ipsa allows judges and juries to apply common sense to a situation in order to determine whether or not the defendant acted negligently.
Since the laws of personal injury and evidence are determined at the state level, the law regarding res ipsa loquitur varies slightly between states. That said, a general consensus has emerged, and most states follow one basic formulation of res ipsa.
Under this model for res ipsa, there are three requirements that the plaintiff must meet before a jury can infer that the defendant's negligence caused the harm in question:
The event doesn't normally occur unless someone has acted negligently;
The evidence rules out the possibility that the actions of the plaintiff or a third party caused the injury; and The type of negligence in question falls with the scope of the defendant's duty to the plaintiff.
As mentioned above, not all accidents occur because of someone else's negligence. Some accidents, on the other hand, almost never occur unless someone has acted negligently.
Going back to the old case of the falling flour-barrel, it's a piece of shared human knowledge that things don't generally fall out of warehouse windows unless someone hasn't taken care to block the window or hasn't ensured that items on the warehouse floor are properly stored. When something does fall out of a warehouse window, the law will assume that it happened because someone was negligent.The second component of a res ipsa case hinges on whether the defendant carries sole responsibility for the injury. If the plaintiff can't prove by a preponderance of the evidence that the defendant's negligence cause the injury, then they will not be able to recover under res ipsa.
States sometimes examine whether the defendant had exclusive control over the specific instrumentality that caused the accident in order to determine if the defendant's negligence caused the injury. For example, if a surgeon leaves a sponge inside the body of a patient, a jury can infer that the surgeon's negligence caused the injury since he had exclusive control over the sponges during the operation.
In addition to the first two elements, the defendant must also owe a duty of care to protect the plaintiff from the type of injury at issue in the suit. If the defendant does not have such a duty, or if the type of injury doesn't fall within the scope of that duty, then there is no liability.
For example, in many states, landowners don't owe trespassers any duty to protect them against certain types of dangers on their property. Thus, even if a trespasser suffers an injury that was caused by the defendant's action or inaction and that wouldn't normally occur in the absence of negligence, res ipsa loquitur won't establish negligence since the landowner never had any responsibility to prevent injury to the trespasser in the first place.
Res ipsa only allows plaintiffs to establish the inference of the defendant's negligence, not to prove the negligence completely. Defendants can still rebut the presumption of negligence that res ipsa creates by refuting one of the elements listed above.
For example, the defendant could prove by a preponderance of the evidence that the injury could occur even if reasonable care took place to prevent it. An earthquake could shake an item loose and it could fall out of the warehouse window, for instance.
A defendant could also demonstrate that the plaintiff's own negligence contributed to the injury. To go back to the flour-barrel example, if the defendant shows that the plaintiff was standing in an area marked as dangerous it could rebut the presumption of negligence created by res ipsa.
Finally, the defendant could establish that he did not owe the plaintiff a duty of care under the law, or that the injury did not fall within the scope of the duty owed. For example, if the law only imposes a limited duty on the defendant not to behave recklessly, then res ipsa will not help the plaintiff by creating an inference of negligence since a negligent action would not violate the duty owed to the plaintiff.
According to the Blacks Law Dictionary the maxim is defined as the doctrine providing that, in some circumstances, the mere fact of accidents occurrence raises an inference of negligence so as to establish a prima facie (at first sight) case. It is a symbol for that rule that the fact of the occurrence of an injury taken with the surrounding circumstances may permit an inference or recipes omission of negligence, or make out a plaintiff's prima facie case and present a question of fact for defendant to meet with and explanation. It is merely a short way of saying that the circumstances attendant on the accident are of such a nature to justify a jury in light of common sense and past experience in inferring that the accident was probably the result of the defendant's negligence, in the absence of explanation or other evidence which the jury believes.
Its use in clinical negligence gained some traction before Bolam and Bolitho. Mahon v Osborne [1939] 1 All ER 535, is an early example of the application of res ipsa loquitur in a case where a surgical swab had been left inside a patient's body.
In Clarke v Worboys (1952) Times, 18 March, CA, a patient noticed burns on her buttock shortly after surgical excision of a breast tumour. The surgery involved cauterisation. The Court of Appeal held that this was a case where res ipsa loquitur applied. The outcome was not one that would ordinarily occur in the absence of negligence, and the surgical team were unable to explain how the injury was caused.
In Cassidy v Ministry of Health [1951] 2 KB 343, Denning LJ succinctly summarised the maxim's application to clinical negligence cases: "I went into hospital to be cured of two stiff fingers. I have come out with four stiff fingers and my hand is useless. That should not happen if due care had been used. Explain it if you can."
Ng Chun Pui Vs Lee Chuen Tat, the first defendant was driving a coach owned by the second defendant westwards in the outer lane of dual carriageway in Hong Kong. Suddenly the course across the central reservation and collided with a public bus travelling in the inner lane of the other carriageway, killing one passenger in the bus and injuring the driver and three others on the bus. The plaintiff could not prove that the defendants were negligent and had caused the accident. They however proceeded on the basis of Res Ipsa Loquitur and shifted the onus on the defendants to prove that they were not negligent. However, they failed to do so. And the judicial committee of the Privy Council held the defendants liable for the plaintiffs injuries. { MarkLuney and Ken Opliphant, Tort Law Text And Materials (Oxford University Press, New York, 2000) pp 173-175 } In A.S. Mittal & Anr Vs State Of UP &Ors , AIR 1979 SC 1570 , the defendants had organised an eye camp at Khurja along with the Lions Club. 88 low risk cataract operations were undertaken during the period of the camp. It was however, disastrous as many of those who had been operated upon lost their eyesight due to post medical treatment. Proceedings against the government initiated for negligence of the doctors. Damages worth Rs.12,500/- were paid as interim belief to each of the aggrieved. The decision was on the basis of Res Ipsa Loquitur as the injury would not ave occurred had the doctors not been negligent in not having followed up with post-operation treatment. Res Ipsa Loquitur can be applied in matters where are the procedures have not been followed and is not just limited to the commission of an act.
We can define 'Medical negligence' as the improper or unskilled treatment of a patient by a medical practitioner. This includes negligence in taking care from a nurse, physician, surgeon, pharmacist, or any other medical practitioner. Medical negligenceleads to 'Medical malpractices' where the victims suffer some sort of injury from the treatment given by a doctor or any other medical practitioner or health care professional.
Medical negligence can occur in different ways. Generally, it occurs when a medical professional deviates from the standard of care that is required.
So, we can say that any kind of deviation from the accepted standards of medication and care is considered to be medical negligence and if it causes injury to a patient then the doctor who operated on him, other staff and/or hospital may be held liable for this.
Some of the common categories of medical negligence are as follows:
Wrong diagnosis - When someone goes to a hospital, clinic or medical room, etc. the first step after admittance is the diagnosis. Diagnosing symptoms correctly is critical and important to provide medical care to any patient. However, if a patient is not treated properly due to any mistake in diagnosis, the doctor can be made liable for any further injury or damages caused as a result of the wrong diagnosis.
Delay in diagnosis - A delayed diagnosis is treated as medical negligence if another doctor would have reasonably diagnosed the same condition in a timely fashion. A delay in diagnosis can cause undue injury to the patient if the illness or injury is left to worsen with time rather than being treated. Obviously, any delay in the identification and treatment of an injury can reduce the chance of recovery for the patient.
Error in surgery - Surgical operations require an enormous level of skill and it should be done with due care and caution because even the slightest mistakes can have profound effects on the patient. The wrong-site surgery, lacerations of any internal organ, severe blood loss, or a foreign object being left in the body of the patients, all this comes under Surgical error.
Unnecessary surgery - Unnecessary surgery is usually associated with the misdiagnosis of patient symptoms or a medical decision without proper consideration of other options or risks. Alternatively, sometimes surgery is chosen over conventional treatments for their expediency and ease compared to other alternatives.
Errors in the administration of anesthesia - Anesthesia is a risky part of any major medical operation and requires a specialist (anesthesiologist) to administer and monitor its effect on the patient. Prior to any medical procedure requiring anesthesia, the anesthesiologist has to review the patient's condition, history, medications, etc. to determine the most suitable of all the medicine to use. Anesthesia malpractice can happen even during the pre-operation medical review or during the procedure itself.
Childbirth and labor malpractice - Childbirth is a difficult event for a woman and it becomes worse if not handled properly by the doctors and nurses. There are many instances of medical negligence during childbirth including the mishandling of a difficult birth, complications with induced labor, misdiagnosis of a newborn medical condition, etc. Long-Term negligent treatment - Medical negligence can also occur in subtle ways over the course of a long treatment period. Usually, the negligence can take the shape of a failure to follow up with treatment, or a doctor's failure to monitor the effects of the treatment properly.
A standard of care specifies the appropriate treatment and medication procedure as per the requirements that should be taken into account by a doctor while providing the treatment to his patients. The care should not be of the highest degree nor the lowest.Here, the degree means the level of care an ordinary health care professional, with the same training and experience, would render in similar circumstances in the same community. This is the critical question in medical malpractice cases and if the answer is "no," and you suffered injury as a result of the poor treatment, you may file a suit for medical malpractice.
In the case of Dr. Laxman Balkrishna Joshi Vs. Dr. TrimbakBapu Godbole and Anr.[ 1969 AIR 128], the Supreme Court held that a doctor has certain aforesaid duties and a breach of any of those duties can make him liable for medical negligence. A doctor is required to exercise a reasonable degree of care that is set for this profession.
Dr. Kunal Saha vs Dr. Sukumar Mukherjee on 21 October, 2011 ( NC) original petition number 240 OF 1999 is one of the most important case regarding medical negligence. The brief facts of the case are-
Toxic Epidermal Necrolysis ( TEN ) is a rare and deadly disease. It is an extoliative dermatological disorder of unknown cause. A patient with TEN loses epidermis in sheet-like fashion leaving extensive areas or denuded dermis that must be treated like a larze, superficial, partial-thickness burn wound. The incidence of TEN has been reported at 1 to 1.3 per million per year. The female-male ratio is 3:2. TEN accounts for nearly 1% of drug reactions that require hospitalization. TEN has a mortality rate of 25 to 70%.
Smt. Anuradha Saha (in short Anuradha), aged about 36 years wife of Dr. Kunal Saha (complainant) became the unfortunate victim of TEN when she alongwith the complainant was in India for a holiday during April-May 1998. She and the complainant although of Indian original were settled in the United States of America. The complainant is a doctor by profession and was engaged in research on HIV / AIDS for the past fifteen years. Anuradha after acquiring her Graduation and Masters Degree was pursuing a Ph.D. programme in a university of U.S.A. She was a Child Psychologist by profession. Anuradha showed certain symptoms of rashes over her body and received treatment at the hands of Opposite Parties and some other doctors as outdoor patient uptil 10.05.1998 and she was admitted in Advanced Medicare and Research Institute Limited, Calcutta (for short, AMRI), on 11.05.1998, where she was treated by the above-named Opposite Parties and other doctors uptil 16.05.1998. As there was no improvement in her condition, she was shifted to Breach Candy Hospital, Mumbai, on 17.05.1998 by an air ambulance. She was treated in Breach Candy Hospital from 17.05.1998 evening till she breathed her last on 28.05.1998.
Our Complainant as husband of Anuradha felt that the doctors who treated Anuradha and the hospitals where she was treated were grossly negligent in her treatment and her death was occasioned due to gross negligence of the treating doctors and hospitals. Complainant, accordingly, got issued a legal notice to as many as 26 persons i.e. various doctors who treated Anuradha between end of April to the date of her death alleging negligence and deficiency in service on their part and claiming a total compensation exceeding Rs.55 crores from them. Complainant, thereafter filed the present complaint on 09.03.1999 before this Commission claiming a total compensation of Rs. Rs.77,07,45,000/- ( Seventy Seven Crores Seven Lakhs Fourty Five Thousand only). Later he also filed another complaint no. 179 of 2000 in this Commission against Breach Candy Hospital, its doctors and functionaries claiming a further compensation of Rs.25.30 crore ( though the said complaint was later on withdrawn), thereby making claim of compensation exceeding Rs.102 crores, perhaps the highest ever claimed by any complainant for medical negligence before any consumer fora established under the provisions of Consumer Protection Act, 1986 ( in short, the Act). These are some of the facts which make the present case extra ordinary.
The present complaint was filed by the complainant against the above-named opposite parties, namely, Dr. Sukumar Mukherjee, Dr. B. Haldar (Baidyanath Halder), Advanced Medicare and Research Institute Limited ( in short the AMRI Hospital ) and Dr. Balram Prasad and Dr.Abani Roy Chowdhury (physician) and Dr.KaushikNandy (plastic surgeon), the Directors of the AMRI Hospital and others claiming a total compensation of Rs. Rs.77,07,45,000/- under different heads alleging various acts of commission and omission on the part of the doctors and hospital amounting to negligence and deficiency in service. Complainant through his brother-in-law Malay Kumar Ganguly also filed criminal complaint against some of the doctors and the hospital under section 304A IPC.
The complaint was resisted by the doctors and the hospital on a variety of grounds thereby denying any medical negligence or deficiency in service on their part. Parties led voluminous documentary and oral evidence and testimonies of some of the witness were even recorded through video conferencing through a Local Commissioner. After a protracted trial and hearing and on consideration of the evidence and material so produced on record and taking note of the legal position governing the question of medical negligence, this Commission ( by a three Member Bench presided over by the then President) dismissed the complaint by an order dated 01.06.2006 holding as under:
In the result, we reiterate that Doctors or Surgeons do not undertake that they will positively cure a patient. There may be occasions beyond the control of the medical practitioner to cure the patients. From the record, it would be difficult to arrive at the conclusion that the injection Depo-Medrol prescribed by Dr. Mukherjee was of such excessive dose that it would amount to deficiency in service by him which was his clinical assessment.
Thereafter, with regard to the alleged deficiency in the treatment given to Mrs. Anuradha by Opposite Party Doctors 2, 3, 5 and 6, there is no substance. The contention against the hospital that it was not having Burns-Ward, and therefore, the deceased suffered is also without substance. Hence, this complaint is dismissed. There shall be no order as to costs.
Aggrieved by the dismissal of his complaint, the complainant filed Civil Appeal (No.1727 of 2007) in the Honble Supreme Court. It would appear that even before the said appeal was filed before the Hon'ble Supreme Court, the Supreme Court was seized of the matter in Criminal Appeal Nos.1191-94 of 2005 filed by Malay Kumar Ganguly, the complainant in the criminal complaint, against the Orders passed by the Calcutta High Court. Since the Criminal Appeals and the Civil Appeal filed by the complainant in the present complaint raised the same questions of fact and law, the Hon'ble Supreme Court heard all the appeals together and decided the same by means of a detailed judgment dated 07.8.2009. By the said order, the Apex Court dismissed the Criminal Appeals filed by Shri Malay Kumar Ganguly but allowed the Civil Appeal No. 1727 of 2007 filed by the complainant and set aside the order dated 01.6.2006 passed by this Commission dismissing the complaint and remanded the matter to this Commission for the limited purpose of determining the adequate compensation, which the complainant is entitled to receive from the subsisting opposite parties by observing as under:
So far as the judgment of the Commission is concerned, it was clearly wrong in opining that there was no negligence on the part of the Hospital or the doctors. We, are, however, of the opinion, keeping in view the fact that Dr.KaushikNandy has done whatever was possible to be done and his line of treatment meets with the treatment protocol of one of the experts viz.. Prof. Jean Claude Roujeau although there may be otherwise difference of opinion, that he cannot be held to be guilty of negligence.
We remit the case back to the Commission only for the purpose of determination of the quantum of compensation. We, keeping in view the stand taken and conduct of AMRI and Dr. Mukherjee, direct that costs of Rs.5,00,000 and Rs.1,00,000 would be payable by AMRI and Dr. Mukherjee respectively.
We further direct that if any foreign experts are to be examined it shall be done only through video conferencing and at the cost of the respondents.
Summary In view of the foregoing discussion, we conclude as under:
The facts of this case viz., residence of the complainant and Anuradha (deceased) in USA and they working for gain in that country; Anuradha having been a victim of a rare and deadly disease Toxic Epidermal Necrolysis (TEN) when she was in India during April-May 1998 and could not be cured of the said disease despite her treatment at two superspeciality medical centres of Kolkata and Mumbai and the huge claim of compensation exceeding Rs.77 crores made by the complainant for the medical negligence in the treatment of Anuradha makes the present case somewhat extraordinary.
The findings given and observations made by the Supreme Court in its judgment dated 07.08.2009 are absolutely binding on this Commission not only as ratio decidendi but also as obiter dicta also, the judgment having been rendered by the Supreme Court in appeal against the earlier order passed by a three Member Bench of this Commission and, therefore, no attempt can be allowed to read down / dilute the findings and observations made by the Supreme Court because the Supreme Court has remitted the complaint to this Commission only for the purpose of determination of the quantum of compensation after recording the finding of medical negligence against the opposite parties and others.
The task entrusted to the Commission may appear to be simple but the facts of the present case and the voluminous evidence led on behalf of the complainant has made it somewhat arduous. Still difficult was the task of apprortionment of the liability to pay the awarded amount by the different opposite parties and perhaps it was for this reason that the Supreme Court has remitted the matter to this Commission.
Multiplier method provided under the Motor Vehicles Act for calculating the compensation is the only proper and scientific method for determination of compensation even in the cases where death of the patient has been occasioned due to medical negligence / deficiency in service in the treatment of the patient, as there is no difference in legal theory between a patient dying through medical negligence and the victim dying in industrial or motor accident. The award of lumpsum compensation in cases of medical negligence has a great element of arbitrariness and subjectivity.
The foreign residence of the complainant or the patient and the income of the deceased patient in a foreign country are relevant factors but the compensation awarded by Indian Fora cannot be at par which are ordinarily granted by foreign courts in such cases. Socio economic conditions prevalent in this country and that of the opposite parties / defendants are relevant and must be taken into consideration so as to modulate the relief. A complainant cannot be allowed to get undue enrichment by making a fortune out of a misfortune. The theoretical opinion / assessment made by a Foreign Expert as to the future income of a person and situation prevalent in that country cannot form a sound basis for determination of future income of such person and the Commission has to work out the income of the deceased having regard to her last income and future prospects in terms of the criteria laid down by the Supreme Court.
There exists no straight jacket formula for apportionment of the awarded compensation amongst various doctors and hospitals when there are so many actors who are responsible for negligence and the apportionment has to be made by evolving a criteria / formula which is just going by the nature and extent of medical negligence and deficiency in service established on the part of different doctors and hospitals.
On a consideration of the entirety of the facts and circumstances, evidence and material brought on record, we hold that overall compensation on account of pecuniary and non pecuniary damages works out to Rs.1,72,87,500/- in the present case, out of which we must deduct 10% amount on account of the contributory negligence / interference of the complainant in the treatment of Anuradha. That will make the net payable amount of compensation to Rs.1,55,58,750/- (rounded of to Rs.1,55,60,000/-). From this amount, we must further deduct a sum of Rs.25,93,000/- which was payable by Dr. Abani Roy Chowdhury (deceased) or his Legal Representative as the complainant has forgone the claim against them.
In view of the peculiar facts and circumstances of the case and as a special case, we have awarded a sum of Rs. 5,00,000/- as cost of litigation in the present proceedings.
The above amount shall be paid by opposite parties no.1 to 4 to the complainant in the following manner:
(i) Dr. Sukumar Mukherjee-opposite party no.1 shall pay a sum of Rs.40,40,000/- (Rupees Forty Lakh Forty Thousand only) i.e. [Rs.38,90,000/- towards compensation and Rs.1,50,000/- as cost of litigation].
(ii) Dr. B. Haldar (Baidyanth Halder)-opposite party no.2 shall pay a sum of Rs.26,93,000/- (Rupees Twenty Six Lakh Ninety Three Thousand only) i.e. [Rs.25,93,000/- towards compensation and Rs.1,00,000/- as cost of litigation]
(iii) AMRI hospital-opposite party no.3 shall pay a sum of Rs.40,40,000/- (Rupees Forty Lakh Forty Thousand only ) i.e. [Rs.38,90,000/- towards compensation and Rs.1,50,000/- as cost of litigation .
(iv) Dr. Balram Prasad-opposite party no.4 shall pay a sum of Rs.26,93,000/- (Rupees Twenty Six Lakh Ninety Three Thousand only) i.e. [Rs.25,93,000/- towards compensation and Rs.1,00,000/- as cost of litigation] The opposite parties are directed to pay the aforesaid amounts to the complainant within a period of eight weeks from the date of this order, failing which the amount shall carry interest @ 12% p.a. w.e.f. the date of default."
No doubt in this case the opposite parties advised the patient to get admitted in a nursing home where he operated the patient and thereafter could not manage the bleeding caused by the damage of inferior Vena Cava vein .
Now we come to discuss a little about genuine consent taken by a surgeon during operation .
Consent is a legal requirement of medical practice and not a procedural formality. Getting a mere signature on a form is no consent. If a patient is rushed into signing consent, without giving sufficient information, the consent may be invalid, despite the signature. Often medical professionals either ignore or are ignorant of the requirements of a valid consent and its legal implications. Instances where either consent was not taken or when an invalid consent was obtained have been a subject matter of judicial scrutiny in several medical malpractice cases. This article highlights the essential principles of consent and the Indian law related to it along with some citations, so that medical practitioners are not only able to safeguard themselves against litigations and unnecessary harassment but can act rightfully.
Legally, two or more persons are said to consent when they agree upon the same thing in the same sense.[1] Consent must be obtained prior to conducting any medical procedure on a patient. It may be expressed or implied by patient's demeanour. A patient who comes to a doctor for treatment implies that he is agreeable to general physical (not intimate) examination.[2] Express consent (verbal/written) is specifically stated by the patient. Express verbal consent may be obtained for relatively minor examinations or procedures, in the presence of a witness.[3] Express written consent must be obtained for all major diagnostic, anaesthesia and surgical procedures as it is the most undisputable form of consent.
ESSENTIAL PRINCIPLES OF A VALID CONSENT AND THE INDIAN LAW A doctor must take the consent of the patient before commencing a treatment/procedure Except in emergencies, informed consent should be obtained sometime prior to the procedure so that the patient does not feel pressurised or rushed to sign. On the day of surgery, the patient may be under extreme mental stress or under influence of pre-medicant drugs which may hamper his decision-making ability. Consent remains valid for an indefinite period, provided there is no change in patient condition or proposed intervention.[4] It should be confirmed at the time of surgery.[4] Consent must be taken from the patient himself The doctor before performing any procedure must obtain patient's consent.[5] No one can consent on behalf of a competent adult. In Dr. Ramcharan Thiagarajan Facs versus Medical Council of India case,[6] disciplinary action was awarded to the surgeon for not taking a proper informed consent for the entire procedure of kidney and pancreas transplant surgery from the patient. In some situations, beside patient consent, it is desirable to take additional consent of spouse. In sterilisation procedures, according to the Ministry of Health and Family Welfare, Government of India guidelines, consent of spouse is not required.[7] The Medical Council of India (clause 7.16) however states that in case an operation carries the risk of sterility, the consent of both husband and wife is needed.[8] It is advisable to take consent of spouse when the treatment or procedure may adversely affect or limit sex functions, or result in death of an unborn child.[9] In case of minor, consent of person with parental responsibility should be taken.[10] In an emergency, the person in charge of the child at that time can consent in absence of parents or guardians (loco parentis).[11] In a medical emergency, life-saving treatment can be given even in absence of consent.
Refusing treatment in life-threatening situations due to non-availability of consent may hold the doctor guilty, unless there is a documented refusal to treatment by the patient. In Dr. TT Thomas versus Smt. Elisa and Ors case,[12] the doctor was held guilty of negligence for not operating on a patient with life-threatening emergency condition, as there was no documented refusal to treatment.
The patient should have the capacity and competence to consent A person is competent to contract[13] if (i) he has attained the age of majority,[14] (ii) is of sound mind[15] and (iii) is not disqualified from contracting by any law to which he is subject. The legal age for giving a valid consent in India is 18 years.[14] A child 12 years can give a valid consent for physical/medical examination (Indian Penal Code, section 89).[3] Prior to performing any procedure on a child 18 years, it is advisable to take consent of a person with parental responsibility so that its validity is not questioned. If patient is incompetent, then consent can be taken from a surrogate/proxy decision maker who is the next of kin (spouse/adult child/parent/sibling/lawful guardian).[11] Consent should be free and voluntary Consent is said to be free[16] when it is not caused by coercion,[17] undue influence,[18] fraud,[19] misrepresentation,[20] or mistake.[21,22,23] Consent should be informed Consent should be on the basis of adequate information concerning the nature of the treatment procedure.[5] Consent should be informed and based on intelligent understanding. The doctor must disclose information regarding patient condition, prognosis, treatment benefits, adverse effects, available alternatives, risk of refusing treatment and the approximate treatment cost. He should encourage questions and answer all queries.[2] If the possibility of a risk, including the risk of death, due to performance of a procedure or its refusal is remote or only theoretical, it need not be explained.[5] Exceptions to physician's duty to disclose include[24] : (i) Patient refusal to be informed; this should be documented. (ii) If the doctor feels that providing information to a patient who is anxious or disturbed would not be processed rationally by him and is likely to psychologically harm him, the information may be withheld from him (therapeutic privilege); he should then communicate with patient's close relative, family doctor or both.
The "adequate information" must be furnished by the doctor (or a member of his team) who treats the patient.[5] Information imparted should enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment or not.[5] Consent should be procedure specific Consent given only for a diagnostic procedure, cannot be considered as consent for the therapeutic treatment.[5] Consent given for a specific treatment procedure will not be valid for conducting some other procedure.[5] In Samira Kohli versus Dr. Prabha Manchanda and Anr case,[5] the doctor was held negligent for performing an additional procedure on the patient without taking her prior consent. An additional procedure may be performed without consent only if it is necessary to save the life or preserve the health of the patient and it would be unreasonable to delay, until patient regains consciousness and takes a decision.[5] A common consent for diagnostic and operative procedures may be taken where they are contemplated.[5] Consent obtained during the course of surgery is not acceptable In Dr. Janaki S Kumar and Anr versus Mrs. Sarafunnisa case,[25] in an allegation of performing sterilisation without consent, it was contended that consent was obtained during the course of surgery. The commission held that the patient under anaesthesia could neither understand the risk involved nor could she give a valid consent.
Consent for blood transfusion When blood transfusion is anticipated, a specific written consent should be taken,[24] exception being an emergency situation where blood transfusion is needed to save life and consent cannot be attempted.[26] In M. Chinnaiyan versus Sri. Gokulam Hospital and Anr case,[27] court awarded compensation as patient was transfused blood in the absence of specific consent for blood transfusion.
Consent for examining or observing a patient for educational purpose Prior to examining or observing patients for educational purpose, their consent must be taken.[28] Blanket consent is not valid Consent should be procedure specific. An all-encompassing consent to the effect 'I authorize so and so to carry out any test/procedure/surgery in the course of my treatment' is not valid.[29] Fresh consent should be taken for a repeat procedure A fresh written informed consent must be obtained prior to every surgical procedure that includes re-exploration procedure. In Dr. Shailesh Shah versus Aphraim Jayanand Rathod case,[30] the surgeon was found deficient in service and was liable for compensation as he had performed a re-exploration surgery without a written consent from the patient.
Surgical consent is not sufficient to cover anaesthesia care The surgeons are incapable to discuss the risks associated with anaesthesia. Informed consent for anaesthesia must be taken by the anaesthesia provider as only he can impart anaesthesia related necessary information and explain the risks involved. It may be documented by the anaesthesiologist on the surgical consent form by a handwritten note, or on a separate anaesthesia consent form.[31] Patient has the right to refuse treatment Competent patients have the legal and moral right to refuse treatment, even in life-threatening emergency situations.[31] In such cases informed refusal must be obtained and documented, over the patient's witnessed signature.[32] It may be advisable that two doctors document the reason for non-performance of life-saving surgery or treatment as express refusal by the patient or the authorised representative and inform the hospital administrator about the same.
To detain an adult patient against his will in a hospital is unlawful.[9] If a patient demands discharge from hospital against medical advice, this should be recorded, and his signature obtained.[9] Unilaterally executed consents are void Consent signed only by the patient and not by the doctor is not valid.[33] Witnessed consents are legally more dependable The role of a witness is even more important in instances when the patient is illiterate, and one needs to take his/her thumb impression.[34] Consent should be properly documented Video-recording of the informed consent process may also be done but with a prior consent for the same. This should be documented. It is commonly done for organ transplant procedures. If consent form is not signed by the patient or is amended without his signed authorisation, it can be claimed that the procedure was not consented to.[10] Patient is free to withdraw his consent anytime When consent is withdrawn during the performance of a procedure, the procedure should be stopped. The doctor may address to patient's concerns and may continue the treatment only if the patient agrees. If stopping a procedure at that point puts patient's life in danger, the doctor may continue with the procedure till such a risk no longer exists.[10] Consent for illegal procedures is invalid There can be no valid consent for operations or procedures which are illegal.[24] Consent for an illegal act such as criminal abortion is invalid.[9] Consent is no defence in cases of professional negligence.[9] HOW TO OBTAIN A VALID CONSENT AND CONSENT FORMAT Always maintain good communication with your patient and provide adequate information to enable him make a rational decision.[35] It is preferable to take consent in patient's vernacular language. It may be better to make him write down his consent in the presence of a witness.[34] It is desirable to use short and simple sentences and non-medical terminology that is written/typed legibly.[36] Patient information sheets (PIS) depicting procedure related information, including pre-operative and post-operative pre-cautions in patient's understandable local language with pictorial representation may facilitate the informed consent process. These may help in providing consistently accurate information to the patients.[35] PIS should be handed over to the patients after explaining the contents. Even videos may be used as an aid in increasing patient understanding.[37] Though there is no standard consent format, it may include the following [e.g., Figure 1]:[38] Figure 1 Anaesthesia informed consent form Date and time Patient related: Name, age and signature of the patient/proxy decision maker Doctor related: Name, registration number and signature of the doctor Witness: Name and signature of witness Disease-related: Diagnosis along with co-morbidities if any Surgical procedure related: Type of surgery (elective/emergency), nature of surgery with antecedent risks and benefits, alternative treatment available, adverse consequences of refusing treatment Anaesthesia related: Type of anaesthesia (general and/or regional, local anaesthesia, sedation) including risks Blood transfusion: Requirement and related risks Special risks: Need for post-operative ventilation, intensive care, etc Document the fact that patient and relatives were allowed to ask questions, and their queries were answered to their satisfaction.
CONSENT IN RELATION TO PUBLICATION A registered medical practitioner is not permitted to publish photographs or case reports of his/her patients without their consent, in any medical or another journal in a manner by which their identity could be revealed. However, in case the identity is not disclosed, consent is not needed (clause 7.17).[8] CONSENT IN RELATION TO MEDICAL RESEARCH Consent taken from the patient for the drug trial or research should be as per the Indian Council of Medical Research guidelines[39]; otherwise it shall be construed as misconduct (clause 7.22).[8] COMMON FALLACIES IN THE CONSENT PROCESS The anaesthesiologist must ensure that consent is given maximum importance, and all the legal formalities are followed before agreeing to provide the services. Following are some frequent mistakes and omissions that can cost him/her dearly in the event of a mishap:
Procedure is considered trivial, and consent is not taken Consent of relative is taken instead of the patient, even when patient is a competent adult.
Consenting person is minor, intoxicated or of unsound mind Blanket consent is taken.
It is not procedure specific Consent for blood transfusion is not obtained.
Fresh consent is not taken for a repeat procedure Procedure related necessary information is not given Even if the information given, it is not documented Consent lacks the signature of the treating doctor Consent is not witnessed Alterations or additions are made in the consent form without patient's signed authorisation.
SUMMARY It is not only ethical to impart correct and necessary information to a patient prior to conducting any medical procedure, but it is also important legally. This communication should be documented. Even professional indemnity insurance may not cover for lapses in obtaining a valid consent, considering it to be an intentional assault.
ACKNOWLEDGMENTS We gratefully acknowledge the invaluable contribution and irreplaceable advice extended to us during the preparation of this article by Mr. M Wadhwani, Advocate.
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37. Tompsett E, Afifi R, Tawfeek S. Can video aids increase the validity of patient consent? J Obstet Gynaecol. 2012;32:680-2. [PubMed]
38. Singh D. Singh D. Informed vs. Valid consent: Legislation and responsibilities. [Accessed on 2014 Aug 21];Indian J Neurotrauma. 2008 5:105-8. Available from: http://www.medind.nic.in/icf/t08/i2/icft08i2p105.pdf .
39. Ethical Guidelines for Biomedical Research on Human Participants. New Delhi: Published by: Director General Indian Council of Medical Research; 2006. [Accessed on 2014 Mar 3]. eral Ethical Issues; pp. 21-33. ] Now we see the consent taken by the opposite party in this case. The first consent letter has been scanned hereinbelow in which there is no signature of any doctor. There is no declaration by any doctor regarding the operation of the patient or regarding the risk during this operation. Some columns are left blank. Is it a valid consent? As we have seen that separate consent should be for anaesthesia and for operation and for reoperation. In this consent form it has been written that no operation is performed without any complication but what are the expected complications, has not been mentioned. This is a printed general form of consent given by the hospital. To whom this consent letter is addressed is not clear. This is not in accordance with the consent pro forma of Indian Medical Association. So it cannot be said a valid consent in the eye of law or according to the medical protocol.
Another consent letter has been scanned hereinbelow.
This is a handwritten consent letter taken by the opposite party from the patient. If there is already a consent letter what was the need of this consent letter? In the following consent letter there are actually two consent, first for laparoscopic cholecystectomy, and second for open surgery but as medical protocol two consent cannot be taken into same form. This is not in accordance the prescribed pro forma or guidelines given by the IMA. So this consent form is also not valid according to medical protocol and according to the guidelines of IMA.
What facilities should be given in a operation theatre?
An operating theater (also known as an operating room (OR), operating suite, or operation suite) is a facility within a hospital where surgical operations are carried out in an aseptic environment.
Historically, the term "operating theater" referred to a non-sterile, tiered theater or amphitheater in which students and other spectators could watch surgeons perform surgery. Contemporary operating rooms are usually devoid of a theater setting, making the term "operating theater" a misnomer in those cases.
Operating rooms Operating rooms are spacious, in a cleanroom, and well-lit, typically with overhead surgical lights, and may have viewing screens and monitors. Operating rooms are generally windowless, though windows are becoming more prevalent in newly built theaters to provide clinical teams with natural light, and feature controlled temperature and humidity. Special air handlers filter the air and maintain a slightly elevated pressure. Electricity support has backup systems in case of a black-out. Rooms are supplied with wall suction, oxygen, and possibly other anesthetic gases. Key equipment consists of the operating table and the anesthesia cart. In addition, there are tables to set up instruments. There is storage space for common surgical supplies. There are containers for disposables. Outside the operating room, or sometimes integrated within, is a dedicated scrubbing area that is used by surgeons, anesthetists, ODPs (operating department practitioners), and nurses prior to surgery. An operating room will have a map to enable the terminal cleaner to realign the operating table and equipment to the desired layout during cleaning. Operating rooms are typically supported by an anaesthetic room, prep room, scrub and a dirty utility room.[1] Several operating rooms are part of the operating suite that forms a distinct section within a health-care facility. Besides the operating rooms and their wash rooms, it contains rooms for personnel to change, wash, and rest, preparation and recovery rooms, storage and cleaning facilities, offices, dedicated corridors, and possibly other supportive units. In larger facilities, the operating suite is climate- and air-controlled, and separated from other departments so that only authorized personnel have access.
Temperature and surgical site infections (SSI). The current operating room design temperature is between 65 and 75 °F (18 and 24 °C).[2][3] Operating rooms are typically kept below 73.4 °F (23 °C) & room temperature is the most critical factor in influencing heat loss.[4] Surgeons wear multiple layers (surgical gowns, lead aprons) and may perspire into an incision if not kept cool; excessive heat may also decrease concentration and increase the frequency of errors.[4] Higher temperatures increased subjective physical demand and frustration of the surgical staff.[2] One option is to heat the patient to prevent surgical site infections (SSI) and keep the surgical team cool. There is a 3 fold increase in infection for every 1.9 degree Celsius body temperature decrease because of weakened immune response at lower body temperatures.[5] Radiation is the major cause of heat loss in patients, and convection (through air) is the second cause of heat loss.[6] In the first hour, it is common for a healthy patient's temperature to decrease 0.5-1.5 °C as anesthesia causes rapid decrease in core temperature.[6] One study found that the most efficient method of maintaining normothermia included using warm wraps and a heating blanket (commercially known as a Bair Hugger).[citation needed] Additionally, pre-warming for thirty minutes may prevent hypothermia.[4] Operating room equipment[edit] Operating room lights are meant so suppress any shadow so that the surgeos has a deep light to use while doing procedures. The surgical light in the picture is the most revolutionary on the market. Thanks to double reflection technology, an improved version of indirect light, the lamp is able to give a light without any glare: the main cause of failure or error during procedures. Glare is the feeling of being blinded given by looking at the light source (the head lamp) Hybrid operating room for cardiovascular surgery at Gemelli Hospital in Rome The operating table in the center of the room can be raised, lowered, and tilted in any direction.[7] The operating room lights are over the table to provide bright light, without shadows, during surgery.[7] The anesthesia machine is at the head of the operating table. This machine has tubes that connect to the patient to assist them in breathing during surgery, and built-in monitors that help control the mixture of gases in the breathing circuit.[7] The anesthesia cart is next to the anesthesia machine. It contains the medications, equipment, and other supplies that the anesthesiologist may need.[7] Sterile instruments to be used during surgery are arranged on a stainless steel table.[7] An electronic monitor (which records the heart rate and respiratory rate by adhesive patches that are placed on the patient's chest).[7] The pulse oximeter machine attaches to the patient's finger with an elastic band aid. It measures the amount of oxygen contained in the blood.[7] Automated blood pressure measuring machine that automatically inflates the blood pressure cuff on a patient's arm.[7] An electrocautery machine uses high frequency electrical signals to cauterize or seal off blood vessels and may also be used to cut through tissue with a minimal amount of bleeding.[7] If surgery requires, a heart-lung machine or other specialized equipment may be brought into the room.[7] Supplementary portable air decontaminating equipment is sometimes placed in the OR.[8] [9] Advances in technology now support hybrid operating rooms, which integrate diagnostic imaging systems such as MRI and cardiac catheterization into the operating room to assist surgeons in specialized neurological and cardiac procedures.[7] Surgeon and assistants' equipment People in the operating room wear PPE (personal protective equipment) to help prevent bacteria from infecting the surgical incision. This PPE includes the following:
A protective cap covering their hair Masks over their lower face, covering their mouths and noses with minimal gaps to prevent inhalation of plume or airborne microbes Shades or glasses over their eyes, including specialized colored glasses for use with different lasers. a fiber-optic headlight may be attached for greater visibility Sterile gloves; usually latex-free due to latex sensitivity which affects some health care workers and patients Long gowns, with the bottom of the gown no closer than six inches to the ground.
Protective covers on their shoes[10] If x-rays are expected to be used, lead aprons/neck covers are used to prevent overexposure to radiation The surgeon may also wear special glasses that help him/her to see more clearly. The circulating nurse and anesthesiologist will not wear a gown in the OR because they are not a part of the sterile team. They must keep a distance of 12-16 inches from any sterile object, person, or field.
History The Agnew Clinic , 1889 by Thomas Eakins , showing the tiered arrangement observers watching the operation.
An operating room in the United States, c. 1960. Heart-Lung Machine with rotating disc oxygenator Early operating theaters in an educational setting had raised tables or chairs at the center for performing operations surrounded by steep tiers of standing stalls for students and other spectators to observe the case in progress. The surgeons wore street clothes with an apron to protect them from blood stains, and they operated bare-handed with unsterilized instruments and supplies.
The University of Padua houses the oldest surviving permanent anatomical theatre in Europe, dating from 1595, it was used as an anatomical lecture hall where professors operated only on corpses.
The University of Padua began teaching medicine in 1222. It played a leading role in the identification and treatment of diseases and ailments, specializing in autopsies and the inner workings of the body.[11] In 1884 German surgeon Gustav Neuber implemented a comprehensive set of restrictions to ensure sterilization and aseptic operating conditions through the use of gowns, caps, and shoe covers, all of which were cleansed in his newly invented autoclave.[12][13] In 1885 he designed and built a private hospital in the woods where the walls, floors and hands, arms and faces of staff were washed with mercuric chloride, instruments were made with flat surfaces and the shelving was easy-to-clean glass. Neuber also introduced separate operating theaters for infected and uninfected patients and the use of heated and filtered air in the theater to eliminate germs.[14] In 1890 surgical gloves were introduced to the practice of medicine by William Halsted.[15] Aseptic surgery was pioneered in the United States by Charles McBurney.[16] Surviving operating theaters Old Operating Theatre in London The oldest surviving operating theater is thought to be the 1804 operating theater of the Pennsylvania Hospital in Philadelphia.[17] The 1821 Ether Dome of the Massachusetts General Hospital is still in use as a lecture hall. Another surviving operating theater is the Old Operating Theatre in London.[18] Built in 1822, it is now a museum of surgical history. The Anatomical Theater at the University of Padua, in Italy, inside Palazzo Bo was constructed and used as a lecture hall for medical students who observed the dissection of corpses, not surgical operations. It was commissioned by the anatomist Girolamo Fabrizio d'Acquapendente in 1595.[19] References^ "Operating Theatres | ModuleCo | Manufactured for Life". ModuleCo. Retrieved 2021-06-10.
^ Jump up to:a b Hakim, Mumin; Walia, Hina; Dellinger, Heather L.; Balaban, Onur; Saadat, Haleh; Kirschner, Richard E.; Tobias, Joseph D.; Raman, Vidya T. (2018-04-06). "The Effect of Operating Room Temperature on the Performance of Clinical and Cognitive Tasks". Pediatric Quality & Safety. 3 (2): e069. doi:10.1097/pq9.0000000000000069. ISSN 2472-0054. PMC 6132757. PMID 30280125.
^ ANSI/ASHRAE/ASHE Addendum h to Standard 170-2008. (2011). Ventilation of Health Care Facilities. Retrieved from https://www.fgiguidelines.org/wp-content/uploads/2015/07/ASHRAE170ad_h.pdf ^ Jump up to:a b c Hart, Stuart R.; Bordes, Brianne; Hart, Jennifer; Corsino, Daniel; Harmon, Donald (2011). "Unintended Perioperative Hypothermia". The Ochsner Journal. 11 (3): 259-270. ISSN 1524-5012. PMC 3179201. PMID 21960760.
^ Reynolds, Luke; Beckmann, James; Kurz, Andrea (December 2008). "Perioperative complications of hypothermia". Best Practice & Research. Clinical Anaesthesiology. 22 (4): 645-657. doi:10.1016/j.bpa.2008.07.005. ISSN 1521-6896. PMID 19137808.
^ Jump up to:a b Rosenberger, Laura H.; Politano, Amani D.; Sawyer, Robert G. (June 2011). "The Surgical Care Improvement Project and Prevention of Post-Operative Infection, Including Surgical Site Infection". Surgical Infections. 12 (3): 163-168. doi:10.1089/sur.2010.083. ISSN 1096-2964. PMC 4702424. PMID 21767148.
^ Jump up to:a b c d e f g h i j k "Operating Room Equipment: The Complete Guide | Knowledge Center". www.steris.com. Retrieved 2022-01-19.
^ Carroll, Gregory T.; Kirschman, David L. (2022). "A Peripherally Located Air Recirculation Device Containing an Activated Carbon Filter Reduces VOC Levels in a Simulated Operating Room". ACS Omega. 7 (50): 46640-46645. doi:10.1021/acsomega.2c05570. PMC 9774396. PMID 36570243.
^ Carroll, Gregory T.; Kirschman, David L. (2023). "Catalytic Surgical Smoke Filtration Unit Reduces Formaldehyde Levels in a Simulated Operating Room Environment". ACS Chemical Health & Safety. 30: 21-28. doi:10.1021/acs.chas.2c00071. S2CID 255047115.
^ "Benefits of Using Disposable Shoe Covers". Amazon. Retrieved 2022-04-22.
^ Jerome J. Bylebyl, "The School of Padua: humanistic medicine in the 16th century," in Charles Webster, ed., Health, Medicine and Mortality in the Sixteenth Century (1979) ch10 ^ Deysine, M (2003). Hernia infections: pathophysiology, diagnosis, treatment, prevention. Informa Health Care. pp. 13. ISBN 0-8247-4612-0.
^ "Surgeons and surgical spaces". Science Museum. Retrieved 2022-01-19.
^ Bishop, WJ (1995). The Early history of surgery. Barnes & Noble. pp. 169. ISBN 1-56619-798-8.
^ Porter, R (2001). The Cambridge illustrated history of medicine. Cambridge University Press. pp. 376. ISBN 0-521-00252-4.
^ Gross, E (1990). This day in American history. Verlag für die Deutsche Wirtschaft. pp. 61. ISBN 1-55570-046-2.
^ "Pennsylvania Hospital History: Virtual Tour - Surgical Amphitheatre". www.uphs.upenn.edu.
^ "The Old Operating Theatre". The Old Operating Theatre Museum & Herb Garret. Retrieved 2022-01-19.
^ "Palazzo Bo and Anatomical Theatre | Università di Padova". www.unipd.it. Retrieved 2022-01-19.
Now it is better to see the government rules/act regarding private practice by a Government Dr first it is better to reproduce the said act here for ready reference.
The U.P. Government Doctors (Allopathic) Restriction on Private Practice Rules, 1983 Published vide Notification No. 5774-Section 14/5 - 323-83, dated August 30, 1983, published in U.P. Gazette, (Extraordinary), dated 30th August, 1983 In exercise of the powers conferred by the provision to Article 309 of the Constitution of India, and in supersession of the Uttar Pradesh Government Doctors (Allopathic) Private Practice Rules, 1982 notified, vide Notification No. 7271-Section 14/V-411-82, dated October 31, 1982 and all existing orders on the subject, the Governor is pleased to make the following rules restricting private practice of teachers of State Medical Colleges and Government Doctors (Allopathic) in Uttar Pradesh:
1. Short title and commencement. - (1) These rules may be called the Uttar Pradesh Government Doctors (Allopathic) Restriction on Private Practice Rules, 1983.
(2) They shall come into force on September 1, 1983.
2. Definitions. - In these rules, unless the context otherwise require:
(a) "Constitution" means the Constitution of India;
(b) "Government" means the Government of Uttar Pradesh;
(c) "Government doctors" means the doctors working on any post in the Pradeshik Medical Services, Pradeshik Health Services, Pradeshik Medical and Health Services, Uttar Pradesh Dental Surgeon Service or on the post of a teacher or on any ex-cadre post, created by the Government from time to time;
(d) "Governor" means the Governor of Uttar Pradesh;
(e) "Private Practice" means medical aid, including giving consultation, for pecuniary consideration in cash or kind;
(f) "State Medical Colleges" means the following Medical Colleges:
(i) King George Medical College.
(ii) Sarojini Naidu Medical College, Agra.
(iii) Ganesh Shanker Vidyarthi Smarak Medical College, Kanpur.
(iv) Moti Lal Nehru Medical College, Allahabad.
(v) Lala Lajpat Rai Memorial Medical College, Meerut.
(vi) Maharani Laxmi Bai Medical College, Jhansi.
(vii) Baba Raghav Das Medical College, Gorakhpur.
(viii) Any other Medical College under the control of the State Government.
(g) "teacher" means a doctor working in any State Medical College and attached hospitals and includes a House Officer, Resident Officer, Junior Resident, Senior Resident, Chief Resident Demonstrator, Registrar and a Tutor working therein.
3. Restriction on private practice. - Notwithstanding anything to the contrary contained in any rules or orders, contract or any other instrument and subject to the provisions of Rule 4, a Government doctor shall not be entitled to private practice.
4. Payment in lieu of private practice. - (1) In lieu of private practice a Government doctor shall be paid such amount, by way of non-practising pay or allowance or both, as the Government may specify from time to time:
Provided that non-practising pay or allowance, referred to in this sub-rule shall not be payable to:
(a) a Government doctor who-
(i) does not possess M.B.B.S., degree or B.D.S. or L.S.M.F. (LMP) diploma, or
(ii) is not entitled to be registered by the Indian Medical Council/Indian Dental Council, or
(iii) is debarred by the Indian Medical Council/Indian Dental Council from doing private practice;
(b) (i) Director and Additional Director, Medical, Health and Family Welfare;
(ii) Director and Additional Director, Medical Education and Training; and
(iii) Principals of the State Medical Colleges;
(c) an incumbent of a post for which M.B.B.S., degree or B.D.S. or L.S.M.F. (LMP) diploma qualifications are not essential.
5. Relaxation from conditions of these rules. - Where the State Government is satisfied that the operation of the rule restricting private practice causes undue hardship in any particular case or cases, it may, notwithstanding anything contained in the rules, by general or special order, dispense with or relax the requirement of that rule to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner or in public interest.
6. Power to remove difficulties etc. - The Government may, by order published in the Gazette, make provision for any matter not covered by these rules to regulate the restriction on private practice of Government doctors and to ensure the effective implementation of, or for removing any difficulty in giving effect to these rules.
7. Misconduct. - A Government doctor committing breach of these rules shall be guilty of misconduct under Rule 3 of the Government Servant's Conduct Rules, 1956.
So in this case the operating surgeon was doing his job in RML Hospital. The opposite parties are well-known that the opposite party doctor Dr Arun Kumar Srivastava is a government Dr and that there is a bar on the practice of a government Dr from doing private practice. In spite of all these they hired the services of Dr Arun Kumar Srivastava which was against the medical ethics and against the provisions of the above-mentioned Act. Dr Arun Kumar Srivastava was also well aware of the said Act and in spite of it he reached the private nursing home for doing a operation. This shows that all the opposite parties knew this fact and in spite of it they contributed to the said operation. Dr Arun Kumar Srivastava has voluntarily given his services to the nursing home so primarily he is liable to do so under the government rules. All other doctors have contributed in the said operation knowing this fact therefore all were liable or guilty of conspiracy. So it is clear that Dr Arun Kumar Srivastava operated the patient in the violation of the said Act and also against the principles of IMA.
An operation theatre should be bacteria and virus free and during operation. In addition to it , there must be an anaesthetist, Asst anaesthetist, physician, cardiologist, and other medical and paramedical staff having well-trained nurses. In this case we do not find such preparation or arrangements. During argument it is told that there was a ventilator and there was ambulance in the hospital. If there was ventilator why did the patient not put on ventilator immediately? Why did the patient refer to higher centre? During argument the counsel of Dr Arun Kumar Srivastava first denied the presence of the Dr Arun Kumar Srivastava in the nursing home but when he was shown the statement of other doctors who admitted the presence of Dr Arun Kumar Srivastava, he accepted that Dr Arun Kumar Srivastava performed the operation. We have also seen the contribution of other doctors. Anaesthetist which was called to give anaesthesia to the patient, has given anaesthesia to the patient but he could not manage to keep vital parts in normal condition . He had knowledge that this hospital is not equipped with all the basic equipments of operation and there was lack of operating team in spite of that he gave anaesthesia to the patient only for getting some thousand of rupees. When you know that the operating surgeon is a government Dr, why did you administer anaesthesia to the patient? When you know that this hospital has no basic facilities for the operation, has no proper ventilator and ambulances, why did you contribute in the operation by giving anaesthesia to the patient. All this the show the deficiency of service on the part of the opposite party.
Now we come to see the post-operative care which is very important during a surgical operation.
Postoperative patients must be monitored and assessed closely for any deterioration in condition and the relevant postoperative care plan or pathway must be implemented.
The NCEPOD (2011) report found that patients whose condition was deteriorating were not always identified and referred for a higher level of care. Patients should be made ascomfortable as possible before postoperative checks are performed.
Postoperative patients are at risk of clinical deterioration, and it is vital that this is minimised. Knowledge and understanding of the key areas of risk and local policies will help reduce potential problems (National Patient Safety Agency, 2007; National Institute for Health and Clinical Excellence, 2007).
Track and trigger or early warning systems are widely used in the UK to identify deteriorating patients. These have been adapted by trusts for adults and children and are based on the patient's pulse and respiratory rate, systolic blood pressure, temperature and level of consciousness. Additional monitoring may include pain assessment, capillary refill time, percentage of oxygen administered, oxygen saturation, central venous pressure, infusion rates and hourly urine output.
The National Early Warning Score (NEWS) was developed by a working party to provide a national standard for assessing, monitoring and tracking acutely and critically ill patients (not for use with children under 16 years or in pregnancy); the intention was that trusts would use it to replace their locally adapted early warning systems (Royal College of Physicians, 2012). Like other early warning systems, NEWS has six physiological parameters:
Respiratory rate;
Oxygen saturation;
Temperature;
Systolic blood pressure;
Pulse rate;
Level of consciousness (this will be impaired in patients who have had recent sedation or are receiving opioid analgesia, which should be taken into consideration in assessment).
The system also includes a weighting score of two, which is added if the patient is receiving supplemental oxygen via a mask or nasal cannulas.
When assessing the postoperative patient using NEWS, it is vital that the patient is observed for signs of haemorrhage, shock, sepsis and the effects of analgesia and anaesthetic. Patients receiving intravenous opiates are at risk of their vital signs and consciousness levels being compromised if the rate of the infusion is too high. It is therefore imperative that the patient's pain control is managed well, initially by the anaesthetist and then the ward staff and pain team or anaesthetist, to ensure that the patient has adequate analgesia but is alert enough to be able to communicate and cooperate with clinical staff in the postoperative period.
Many trusts have yet to implement NEWS, although it is beginning to be taught in pre-registration nursing programmes. Student nurses frequently perform postoperative observations under the supervision of a nurse; it is reassuring that they receive some insight and education as recommended by NCEPOD (2011).
Vital signs;
Vital signs should be performed in accordance with local policies or guidelines and compared with the baseline observations taken before surgery, during surgery and in the recovery area.
Nurses should also be aware of the parameters for these observations and what is normal for the patient under observation. When assessing patients' recovery from anaesthesia and surgery, these observations should not be considered in isolation; the nurse should look at and feel the patient. This also applies to children and should include observation of other signs and symptoms, for example abdominal tenderness or poor urine output, which could indicate deterioration (Royal College of Nursing, 2011). The RCN (2011) provides guidance on vital signs performed post-operatively on children. Many trusts now insist that vital signs are performed manually to provide more accurate recording and assessment.
All vital signs and assessments should be recorded clearly in accordance with guidelines for record keeping (Nursing and Midwifery Council, 2009). Handheld personal digital assistants (PDAs) are used at some trusts to store track and trigger data and calculate early warning scores, which can be accessed by the clinical and outreach teams.
When a patient's condition is identified as deteriorating, this information can be passed verbally to appropriate health professionals using the Situation, Background, Assessment and Recommendation (SBAR) tool advocated by the NHS Institute for Innovation and Improvement (2008).
Airway and respirations Respiratory rate and function is often the first vital sign to be affected if there is a change in cardiac or neurological state. It is therefore imperative that this observation is performed accurately; however, studies show it is often omitted or poorly assessed (NPSA, 2007; NCEPOD, 2005).
Nurses should observe and record the following:
Airway;
Respiratory rate (regular and effortless), rhythm and depth (chest movements symmetrical);
Respiratory depression: indicated by hypoventilation or bradypnoea, and whether opiate-induced or due to anaesthetic gases.
Oxygen therapy Oxygen is administered to enable the anaesthetic gases to be transported out of the body, and is prescribed when patients have an epidural, patient-controlled analgesia or morphine infusion. Nurses should ensure and record the following:
Oxygen therapy is prescribed;
Oxygen is administered at correct rate;
Continuous oxygen therapy is humidified to prevent mucous membranes from drying out;
The skin above the ears is protected from elastic on the mask.
Pulse oximetry Oxygen saturation should be above 95% on air, unless the patient has lung disease, and maintained above 95% if oxygen therapy is prescribed to prevent hypoxia or hypoxaemia. An abnormal recording may be due to shivering, peripheral vasoconstriction or dried blood on the finger.
Nurses should ensure that:
The finger probe is clean;
The position of the probe is changed regularly to prevent fingers becoming sore.
Heart rate, blood pressure and capillary refill time The following should be checked and recorded:
Rate, rhythm and volume of pulse;
Blood pressure;
Capillary refill time to assess circulatory status, along with the colour and temperature of limbs, also identifying reduced peripheral perfusion.
Particular attention should be paid to the systolic blood pressure as a lowered systolic reading and tachycardia may indicate haemorrhage and/or shock, although initially the blood pressure may not drop and will remain within normal limits as the body compensates. Tachycardia may also indicate that the patient is in pain, has a fluid overload or is anxious. Hypertension can be due to the anaesthetic or inadequate pain control.
Body temperature Children, older adults and patients who have been in theatre for a long period are at risk of hypothermia. Shivering can be due to anaesthesia or a high temperature indicative of an infection, while a drop in temperature might indicate a bacterial infection or sepsis.
Patients' temperature should be monitored closely and action taken to return it to within normal parameters.
Use a Bair Hugger (forced-air blanket) and blankets to warm the patient if their temperature is too low;
Choose an appropriate method to cool the patient if their temperature is too high (antipyretics/fanning/ tepid sponging).
Level of consciousness Postoperative patients should respond to verbal stimulation, be able to answer questions and be aware of their surroundings before being transferred to the ward and throughout the postoperative period.
A change in the level of consciousness can be a sign that the patient is in shock. The AVPU scale (Box 2) is appropriate for assessing consciousness in adults, children and young people unless they have had neurosurgery (RCN, 2011).
Fluid balance The NCEPOD (2011) found, in 30% of patient data reviewed, there was insufficient recording of postoperative fluid balance. Nurses should observe/undertake and record on the fluid balance chart the following:
IV fluids (colloids and crystalloids used to replace fluid loss postoperatively) and infusions;
Oral intake;
Urine output: catheter urine measurements should not be less than 0.5ml/kg/hour. Oliguria can be a sign of hypovolaemia and should be reported to medical staff immediately. Check that the catheter is not kinked or that the patient is not lying on the tubing if urine output is reduced;
Colour of stoma (where appropriate) and whether there is any bleeding;
Nausea and vomiting: if necessary, administration of antiemetics should be checked and vomit bowls and tissues should be within easy reach of the patient;
Oral care;
Nasogastric tube drainage (aspirate if patient feels nauseous unless otherwise indicated);
Colour and amount of wound drainage: large amounts of fresh blood could be an indication of haemorrhage; if there is no wound drainage, it is advisable to check that the drain has not fallen out.
Intravenous infusions The RCN (2010) and Health Protection Scotland (2012) recommend that peripheral venous catheters (PVC) are checked daily as a minimum, and consideration given to removing any PVC that has been in situ longer than 72 hours (Health Protection Scotland, 2012) or 72-96 hours (Department of Health, 2011).
A phlebitis scale can be used to help assess the PVC site; the Visual Infusion Phlebitis Scale (Jackson, 1998) is frequently used and recommended by the RCN (2010). These national guidelines should be used as resources in caring for PVCs. The following should be checked and recorded:
The PVC site when changing IV fluids, before administering IV medication;
Signs of phlebitis (redness, heat and swelling).
Conclusion The postoperative healthcare team is under constant pressure to discharge patients quickly. This can lead to vital signs being missed and result in a delay in recovery.
Patients can be discharged quickly only when they do not experience any post-operative complications, many of which can be avoided or identified with correct and thorough monitoring of signs and symptoms.
All health professionals must continually update their theoretical knowledge and clinical skills; those working in post-operative care can do this by relying less on electronic equipment and developing their ability to combine the use of assessment tools with good observational skills; feeling, listening for abnormal sounds and closely observing their patients.
There are guidelines issued by World Health Organisation for Post Operative Care - these are Postoperative care Post operative note and orders The patient should be discharged to the ward with comprehensive orders for the following:
• Vital signs • Pain control • Rate and type of intravenous fluid • Urine and gastrointestinal fluid output • Other medications • Laboratory investigations The patient's progress should be monitored and should include at least:
• A comment on medical and nursing observations • A specific comment on the wound or operation site • Any complications • Any changes made in treatment Aftercare: Prevention of complications • Encourage early mobilization:
o Deep breathing and coughing o Active daily exercise o Joint range of motion o Muscular strengthening o Make walking aids such as canes, crutches and walkers available and provide instructions for their use • Ensure adequate nutrition • Prevent skin breakdown and pressure sores:
o Turn the patient frequently o Keep urine and faeces off skin • Provide adequate pain control Discharge note On discharging the patient from the ward, record in the notes:
• Diagnosis on admission and discharge • Summary of course in hospital • Instructions about further management, including drugs prescribed.
Ensure that a copy of this information is given to the patient, together with details of any follow-up appointment .
(WHO/EHT/CPR: WHO Surgical Care at the District Hospital 2003 Postoperative Management) If the patient is restless, something is wrong.
Look out for the following in recovery:
• Airway obstruction • Hypoxia • Haemorrhage: internal or external • Hypotension and/or hypertension • Postoperative pain • Shivering, hypothermia • Vomiting, aspiration • Falling on the floor • Residual narcosis The recovering patient is fit for the ward when:
• Awake, opens eyes • Extubated • Blood pressure and pulse are satisfactory • Can lift head on command • Not hypoxic • Breathing quietly and comfortably • Appropriate analgesia has been prescribed and is safely established (WHO/EHT/CPR: WHO Surgical Care at the District Hospital 2003 ) Post operative pain relief • Pain is often the patient's presenting symptom. It can provide useful clinical information and it is your responsibility to use this information to help the patient and alleviate suffering.
• Manage pain wherever you see patients (emergency, operating room and on the ward) and anticipate their needs for pain management after surgery and discharge.
• Do not unnecessarily delay the treatment of pain; for example, do not transport a patient without analgesia simply so that the next practitioner can appreciate how much pain the person is experiencing.
Pain management is our job.
Pain Management and Techniques • Effective analgesia is an essential part of postoperative management.
• Important injectable drugs for pain are the opiate analgesics. Nonsteroidal antiinflammatory drugs (NSAIDs), such as diclofenac (1 mg/kg) and ibuprofen can also be given orally and rectally, as can paracetamol (15 mg/kg).
• There are three situations where an opiate might be given: o Preoperatively o Intraoperatively o Postoperatively • Opiate premedication is rarely indicated, although an injured patient in pain may have been given an opiate before coming to the operating room.
• Opiates given pre- or intraoperatively have important effects in the postoperative period since there may be delayed recovery and respiratory depression, even necessitating mechanical ventilation.
• Short acting opiate fentanyl is used intra-operatively to avoid this prolonged effect.
• Naloxone antagonizes (reverses) all opiates, but its effect quickly wears off.
• Commonly available inexpensive opiates are pethidine and morphine.
• Morphine has about ten times the potency and a longer duration of action than pethidine.
(continued next page) WHO/EHT/CPR: WHO Surgical Care at the District Hospital 2003) Post operative pain relief (continued) • Ideal way to give analgesia postoperatively is to:
o Give a small intravenous bolus of about a quarter or a third of the maximum dose (e.g. 25 mg pethidine or 2.5 mg morphine for an average adult) o Wait for 5-10 minutes to observe the effect: the desired effect is analgesia, but retained consciousness o Estimate the correct total dose (e.g. 75 mg pethidine or 7.5 mg morphine) and give the balance intramuscularly.
o With this method, the patient receives analgesia quickly and the correct dose is given • If opiate analgesia is needed on the ward, it is most usual to give an intramuscular regimen:
¾ Morphine: - Age 1 year to adult: 0.1-0.2 mg/kg - Age 3 months to 1 year: 0.05-0.1 mg/kg ¾ Pethidine: give 7-10 times the above doses if using pethidine • Opiate analgesics should be given cautiously if the age is less than 1 year. They are not recommended for babies aged less than 3 months unless very close monitoring in a neonatal intensive care unit is available.
Anaesthesia& Pain Control in Children • Ketamine anaesthesia is widely used for children in rural centres (see pages 14-14 to 14-21), but is also good for pain control. • Children suffer from pain as much as adults, but may show it in different ways.
• Make surgical procedures as painless as possible:
o Oral paracetamol can be given several hours prior to operation o Local anaesthetics (bupivacaine 0.25%, not to exceed 1 ml/kg) administered in the operating room can decrease incisional pain o Paracetamol (10-15 mg/kg every 4-6 hours) administered by mouth or rectally is a safe and effective method for controlling postoperative pain o For more severe pain, use intravenous narcotics (morphine sulfate 0.05-0.1 mg/kg IV) every 2-4 hours o Ibuprofen 10 mg/kg can be administered by mouth every 6-8 hours o Codeine suspension 0.5-1 mg/kg can be administered by mouth every 6 hours, as needed.
(WHO/EHT/CPR: WHO Surgical Care at the District Hospital 2003) Therefore it is clear that post-operative care is most important in a case of Surgery. If you have no infra or paraphernalia, you are not supposed to proceed further regarding operation. In this case when you go to peruse the total cases history of the patient, it was crystal clear that the opposite parties failed to provide the required post-operative care and has shown carelessness right from the first operation, second operation and asking the patient to go to some other hospital . No doubt that the doctor performs his duty with utmost care and caution but they also showed negligence in some cases. The circumstances shows that after operation, the opposite party left the patient on the operation table ,and directed the staff and junior doctors to do further dressing and stitching. No documents, discharge summary and all the notes regarding both the above mentioned operation which have been performed in the nursing home of the opposite parties has been filed for perusal. No evidence has been shown for taking the patient for two round of operation. In the operation of Gall Bladder what complications developed after the operation which made it compulsory for second operation. In spite of second operation the opposite party failed to manage the post-operative management and miserably failed to provide life-support system to the patient. It shows that the opposite parties have no paraphernalia for the operation. This itself shows the carelessness of the opposite party and also establishes the negligence played in this case with the complainant.
So it is also clear that there was no proper arrangements of post-operative care and due to it the patient lost his life in the immature hands. By getting a higher degree does not make you competent surgeon orphysician. You have violated all the guidelines of IMA and WHO.
ENQUIRY REPORT Now we come to see the enquiry report . It would be better to scan the complete enquiry report hereinbelow for ready reference. Dr Arun Kumar Srivastava was a senior consultant (surgeon) who perform this operation in a private nursing home and at the time he was serving the government as such in the Dr RML Sanyukta Chikitsalaya and in spite of that he operated a patient in a private nursing home thereby causing death of that patient showing an extreme degree of carelessness by puncturing his Vena Cava . The enquiry report is scanned hereinbelow.
This enquiry report shows that in RML there was facility of laparoscopic cholecystectomy but in spite of it Dr Arun Kumar Srivastava sent the patient to a private nursing home and also reached there to operate the patient. From the report of Chief Medical Officer Dr Arun Kumar Srivastava has no certificate regarding operation through laparoscopic method. He was in the team of well-trained surgeon who performed laparoscopic operation but he himself has no such certificate.
It is also clear that the operation continued for four hours but the relatives of the patient has not been told about the seriousness of the operation. As there was no ventilator, inspite of it the patient was operated on. The post-mortem report of the patient shows that the death was caused due to anti-mortem injury, shock and haemorrhage but it has also been mentioned that the death is caused due to injury of Inferior Vena Cava and excessive bleeding. So the post-mortem report also suggests the injury in the Inferior Vena Cava. The enquiry committee found that except Dr Arun Kumar Srivastava, three other doctors were also involved in the said operation. It shows that all were liable for negligence and deficiency of service. As the nursing home is not well equipped for operation, they are also liable to run a nursing home without fully equipped with medical equipments.
We have seen the First Information Report which has been lost on 20.07.2015 against Dr Arun Kumar Srivastava , Sumeet Seth and two unknown person under section 304 IPC (crime number 207/15 . After investigation chargesheet have been filed under section 304 /166/167/168 IPC . Dr Arun Kumar Srivastava challenged this chargesheet before the Hon'ble High Court.
Now it will be better to quote some portion of the order of the Hon'ble High Court where Dr Arun Kumar Srivastava went for quashing FIR filed against him under section 304 . In the case of Dr Arun Kumar Srivastava Vs The State of UP Through Principal Secretary , Home Department & Ors (Misc Bench No 6587 /2015 ) order dated 30.07.2015 , the Hon'ble High Court has said, "Learned counsel for the petitioner could not show any certificate about the training undergone by the petitioner in surgical laparoscopy. It has also come on record that petitioner had knowledge that the private nursing home namely Surgical Clinic Surendra Nagar was not having necessary equipments including ventilator hence only on the ground that petitioner had conducted 200 operation of the gallblader by the laparoscopy will not authorise him to conduct such a operation without the necessary training and necessary equipments. As has been earlier said the death of the deceased occurred due to extra-ordinary bleeding and injury in the inferior venacave.
Learned counsel for the petitioner could not point out as to why the petitioner made incorrect statements, before the attendant of the patient, that Dr. Ram Manohar Lohiya Hospital did not have necessary equipments and facilities.
Learned AGA has also contended that the patient was examined by the petitioner twice before the incident in OPD and there was no emergency for the surgery hence the petitioner would have waited for some time to get the machines of Dr. Ram Mahohar Lohiya Hospital in working condition, if at all they were not in working condition. Though as per report placed by learned AGA laparoscopy surgery machine was functioning. A bare perusal of the inquest report shows that the deceased was wearing a blue and grey colour designed T-shirt, full pant, under wear ' kara' in his hand and 'kalawa' in his other hand. This is prima facie indicative of the fact that the petitioner did not bother even to see that the patient was dressed in the sterilised clothes meant to be worn at the time of surgery.
The petitioner also performed the surgery on the deceased without obtaining prior permission from the superior authority, in a private hospital while working in a Government Hospital. It has also been contended by learned AGA that ultimately when the condition of the patient deteriorated again the petitioner referred the deceased to the same hospital i.e. Dr. Ram Manohar Lohiya Hospital, where the deceased was advised not to get operated."
Learned counsel for the petitioner has placed reliance upon (2011) 13 SCC 158 Kanwarjit Singh Kakkar Vs. State of Punjab and Another, in which the Apex Court has held that a Doctor while doing private practice being a Government Doctor indulged in mal practice or took gratification or did any act like prescribing unnecessary surgery for the purpose of extracting money by way of professional fee and host of other circumstances would be a clear case to be registered under IPC as also under the Prevention of Corruption Act.
Learned counsel for the petitioner has also placed reliance upon (2005) 6 SCC 1 Jacob Mathew Vs. State of Punjab and Another, in which the Apex Court held "A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. A surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient."
In para 36 of Jacob Mathew (Supra), the Apex Court has laid down "The following statement of law on criminal negligence by reference to surgeons, doctors etc. and unskillful treatment contained in Roscoe's Law of Evidence (15th Edn.) is classic:
"Where a person, acting as a medical man, &c., whether licensed or unlicensed, is so negligent in his treatment of a patient that death results, it is manslaughter if the negligence was so great as to amount to a crime, and whether or not there was such a degree of negligence is a question in each case for the jury. "In explaining to juries the test which they should apply to determine whether the negligence in the particular case amounted or did not amount to a crime, judges have used many epithets, such as 'culpable,' 'criminal', 'gross', 'wicked', 'clear', 'complete.' But whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment." (pp. 848-849) "whether he be licensed or unlicensed, if he display gross ignorance, or gross inattention, or gross rashness, in his treatment, he is criminally responsible. Where a person who, though not educated as an accoucheur, had been in the habit of acting as a man-midwife, and had unskilfully treated a woman who died in childbirth, was indicted for the murder, L. Ellenborough said that there was no evidence of murder, but the jury might convict of man-slaughter. "To substantiate that charge the prisoner must have been guilty of criminal misconduct, arising either from the grossest ignorance or the [most?] criminal inattention. One or other of these is necessary to make him guilty of that criminal negligence and misconduct which is essential to make out a case of manslaughter." (p.849) A review of Indian decisions on criminal negligence"
In order to attract 304-A IPC, it is necessary that death should have been the direct result of a rash and negligent act of the accused and that act must be the proximate and efficient cause without the intervention of another negligence, it must be the causans.
In Jacob Mathew (Supra), it has been held that it is the duty of the Investigating Officer to obtain an independent and competent medical opinion preferably from a doctor in Government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion to the facts collected in the investigation.
The cases of Jacob Mathew(supra) and Kanwarjit Singh Kakkar(supra) are not applicable in view of the facts and circumstances of the present case, because it is not a case of only private medical practice by a Government Doctor, which is prohibited and further it is not only a case of gross negligence but further in the present case though the deceased was under treatment of the petitioner, who was examined as outdoor patient in Dr. Ram Manohar Lohia Hospital and he was aware that the facility of laproscopic surgery and other facilities in case of complexity including ICU, etc., were available, but patient was advised to be admitted in private nursing home for surgery. When his condition was deteriorated then he was referred to the same hospital where he was advised that no requisite facilities were available. Besides laproscopic surgery it is admitted case that open surgery was conducted. Further petitioner failed to place any certificate of training and specialisation in 'surgical laproscopy' and as per report produced by learned AGA though he conducted laproscopy operation but in presence of the qualified Doctors. Before operation, the patient/deceased was quite healthy so there was no emergency of immediate operation and his condition was deteriorated after operation was conducted by the petitioner.
Learned AGA submitted that the exercise of jurisdiction under Article 226 of the Constitution for grant of relief prayed for should be exercised very sparingly because the jurisdiction exercised under Section 226 is an extraordinary jurisdiction exercised by the superior courts. In support he has placed reliance upon (2014) 4 SCC 453 Hema Mishra Vs. State of U.P. and Others, in which it has been held that the court should ensure that power under Article 226 is not exercised liberally so as to convert a petition under Article 226 into one under 438 Cr.P.C. proceedings when Section 438 Cr.P.C. is specifically omitted in the State of U.P., it cannot be resorted to via backdoor entry via Article 226.
Article 226 cannot be used for the purpose of giving interim relief as the only and final relief on a petition under Article 226 because an interim relief can be granted only in aid of as an ancillary to the main relief which may be available to the party. The investigation in this case is in progress and it is expected that the investigation will be conducted by the Investigating Officer in a fair and transparent manner. Thus there is no ground to interfere in the investigation and quash the F.I.R. and the petition is liable to be dismissed.
We cannot loose sight of the fact that the petitioner has not hesitated in misleading, misguiding and placing incorrect facts before the Courts on affidavit also in as much as in para 6 of the affidavit it has been mentioned that "That it is pertinent to mention here that in the year 2002, the petitioner had done two months' observership in the Department of Surgical Gastroenterology in S.G.P.G.I. Lucknow from 19.8.2002 to 18.10.2002 with permission from the Director (Training), Medical & Health Services as well as the Chief Medical Officer, Lucknow. The copy of the relevant documents regarding the training of the petitioner in Laparoscopic in S.G.P.G.I., Lucknow is being annexed herewith as ANNEXURE NO.2 to this Writ Petition."
Thus according to aforesaid paragraph the petitioner under went training from 19.8.2002 to 18.10.2002 whereas the fees for the aforesaid training is said to have been deposited on 2.12.2002. The charge is said to have been handed over by the petitioner on 1.12.2002 as evident from annexure-2 and other documents placed on record by the petitioner.
Though the trainee was required to deposit Rs.10,000/- as institutional fees at the time of joining as per condition no.1 mentioned in the letter dated 12.8.2002.
In view of the aforesaid facts and from perusal of the FIR it reveals that the FIR clearly discloses the commission of a cognizable offence. It has specifically been mentioned in the FIR that the petitioner took the life of the deceased due to negligence and greed. Thus the arguments of the counsel for the petitioner that the case does not travel beyond scope of 304-A IPC has no legs to stand.
Thus there is no ground to interfere in the investigation and to quash the F.I.R. as the matter requires investigation.
Accordingly, the present petition is dismissed.
Order Date :- 30.7.2015"
So Hon'ble High Court has also observed that the petitioner misguided the Hon'ble High Court and said, "We cannot loose sight of the fact that the petitioner has not hesitated in misleading, misguiding and placing incorrect facts before the Courts on affidavit." So it is really surprising that the OP - three tried to misguided the Hon'ble High Court. It shows and also reflects the character of these Dr who is treating the patients of the society. Whether this Dr be permitted to treat the patient? In such circumstances are letter dated the Indian medical Association for cancellation of this doctor's all the degrees and debarred him from practice throughout his life in any hospital, nursing home, and even privately. During argument it is told to the court that his seniority no is 7919.
Now we have to see the doctor - patient relationship (DPR). This relationship is very important for all types of treatment of a patient by a doctor.
"Medicine is an art whose magic and creative ability have long been recognized as residing in the interpersonal aspects of patient-physician relationship."
Hall et al.,1981 A doctor-patient relationship (DPR) is considered to be the core element in the ethical principles of medicine. DPR is usually developed when a physician tends to a patient's medical needs via check-up, diagnosis, and treatment in an agreeable manner. Due to the relationship, the doctor owes a responsibility to the patient to proceed toward the ailment or conclude the relationship successfully. In particular, it is essential that primary care physicians develop a satisfactory DPR in order to deliver prime health care to patients.
The physician-patient relationship is a foundation of clinical care. Physician-patient relationships can have profound positive and negative implications on clinical care. Ultimately, the overarching goal of the physician-patient relationship is to improve patient health outcomes and their medical care. Stronger physician-patient relationships are correlated with improved patient outcomes. As the relationship between physicians and patients becomes more important, it is essential to understand the factors that influence this relationship.
Frameworks for Physician-Patient Relationships Throughout history there has been much debate regarding the "ideal" physician-patient relationship. In 1992, Ezekiel and Linda Emanuel proposed four models for the physician-patient relationship: the paternalistic model, the interpretive model, the deliberative model, and the informative model. These models differ based on their understanding of four key principles: the goals of physician-patient interactions, the physician's obligations, the role of patient values, and the concept of patient autonomy.
Factors that Influence the Physician-Patient Relationship Although there are several factors that influence physician-patient relationships, the dynamic shared and sense of trust between physicians and patients are two critical components to their overall relationship.
Dynamic Between Physicians and Patients The dynamic between physicians and patients refers to the communication patterns and the extent to which decision making is shared between both parties. Effective physician-patient communication is an integral part of clinical practice and serves as the keystone of physician-patient relationships. Studies have shown the approach taken by physicians to communicate information is equally important as the actual information that is being communicated. This type of communication incorporates both verbal and nonverbal interactionsbetween physicians and patients.iEffective communication has been shown to influence a wide array of outcomesincluding: emotional health, symptoms resolution, function, pain control, and physiologic measures such as blood pressure levels. When miscommunication occurs, it can have severe negative implications in clinical caresuch as impeding patient understanding, expectations of treatment, treatment planning, decreasing patient satisfaction of medical care, and reducing levels of patient hopefulness.
In addition to having effective communication, it is important that medical decisions stem from a collaborative process between physicians and patients. Decision makingis a process in which patients should be involved from the very beginning, and the result is a decision which reflects the physician's medical knowledge as well as the patient's values and beliefs.ivCollaborative communication and decision making have been correlated with greater patient satisfaction and loyalty. Working from a collaborative framework along with effective physician-patient communication can also strengthen a physician's ability to utilize a personalized health care model through patient empowerment.v Trust Between Physician and Patients "....'patients must be able to trust doctors with their lives and health,' and that maintaining trust is one core guidance for physicians..."
Birkhäuer et al, 2017 Trust is a fundamental characteristic of the physician-patient relationship. Patients must trust that their physicians will work in their best interests to achieve optimal health outcomes. Patients' trust in their physicians has been demonstrated to be more important than treatment satisfactionin predictions of patient adherence to recommendations and their overall satisfaction with care.iStudies have also shown that trust is additionally a strong predictor of a patient continuing with their provider.iiTrust extends to many different aspects of the physician-relationships including, but not limited to: physicians' willingness to listen to patients, patients' believing that physicians value patient autonomy and ability to make informed decisions, and patients feeling comfortable enough to express and engage in dialogue related to their health concerns.
Physician-Patient Relationships Influence on the Future of Healthcare The idea of viewing physician-patient relationships as a core element of quality health care is not something new, however understanding and assessing the factors that influence this relationship is just beginning. Effective physician-patient communication has been shown to positively influence health outcomes by increasing patient satisfaction, leading to greater patient understanding of health problems and treatments available, contributing to better adherence to treatment plans, and providing support and reassurance to patients. Collaborative decision making enables physicians and patients to work as partners in order to achieve a mutual health goal. Trust within all areas of the physician-patient relationship is a critical factor that influences communication between both parties. As health care transforms into a more personalized and patient-centered model, the physician-patient relationship will significantly shape health outcomes. The personalized health care model encourages collaboration among physicians and patients in order to create shared health goals and the cultivation of a health plan to address identified problems. By understanding the factors that influence patient-physician relationships, in the future, health care providers will be able to address some of the barriers that prevent the adoption of more personalized approaches to health care.
OP-5 WS has stated in his written statement , " In the aforesaid post-mortem report it is mentioned that about 1 litre of blood was found present in abdominal cavity with a larger retroperitoneal haematoma."
Retroperitoneal hematomas Retroperitoneal hematomas occur in more than 90% of abdominal vascular injuries. The retroperitoneum is divided into three main zones of injury: zone I is the central/midline retroperitoneum, zone II encompasses the perinephric space, and zone III comprises the pelvic retroperitoneum. Treatment of retroperitoneal hematomas varies depending on the anatomical location and mechanism of injury.
Zone I injuries mandate exploration for both penetrating and blunt injury because of the major vascular structures residing in this region and the unforgiving consequences if injury diagnosis is delayed. The transverse mesocolon subdivides this zone into the central supra- and infra-mesocolic spaces. Hematomas in the central supramesocolic space develop behind the lesser omentum and push the stomach forward. These hematomas result from injury to the suprarenal aorta, celiac axis, proximal superior mesenteric artery (SMA), or proximal renal arteries. Thus, for surgical exploration, proximal control of the aorta should be obtained at the level of the diaphragm, and exposure carried out with a left-sided medial visceral rotation (Mattox maneuver). Central infra-mesocolic hematomas present behind the root of the small-bowel mesentery are a consequence of either infrarenal aorta or IVC injury. Exposure is obtained through a retroperitoneal opening on the midline, and control of the aorta is gained above the celiac axis.
Zone II retroperitoneal hematomas are commonly due to injury to the renal vasculature or parenchyma. All zone II hematomas secondary to penetrating trauma necessitate operative exploration because of the risk for vascular laceration. Stable zone II hematomas following blunt trauma are best managed conservatively because exploration entails opening the Gerota fascia, which under these conditions bears a high likelihood of causing further injury to an already damaged kidney.
Pelvic retroperitoneal hematomas, or zone III hematomas, are typically managed nonoperatively. Iliac vessel injury or suspicion of it represents the only true indication for surgical exploration. This is more common following penetrating injury to the pelvis, as opposed to those of blunt mechanisms. Hematomas arising from blunt means typically result from pelvic fractures, where external fixation and angiographic coil embolization represent the best treatment modalities.
The retroperitoneal space (retroperitoneum) is the anatomical space (sometimes a potential space) behind (retro) the peritoneum. It has no specific delineating anatomical structures. Organs are retroperitoneal if they have peritoneum on their anterior side only. Structures that are not suspended by mesentery in the abdominal cavity and that lie between the parietal peritoneum and abdominal wall are classified as retroperitoneal.[1] This is different from organs that are not retroperitoneal, which have peritoneum on their posterior side and are suspended by mesentery in the abdominal cavity.
The retroperitoneum can be further subdivided into the following:[2] Perirenal (or perinephric) space Anterior pararenal (or paranephric) space Posterior pararenal (or paranephric) space So it is clear that there was blood everywhere in the abdominal cavity meaning thereby that a large quantity of blood has already been lost. Now they say that when the patient was taken to RML Hospital , he died there, cannot be believed. It is only said to save themselves. As per enquiry report the patient was sent to RML Hospital in a critical position with AMBU BAG . His pulse was not there, BP could also be not recorded but it has been written in the enquiry report that heartbeat was present. The patient was pale and when they found heart rate on the monitor they started CPR ( Cardiopulmonary resuscitation (CPR) is a lifesaving technique that's useful in many emergencies in which someone's breathing or heartbeat has stopped. For example, when someone has a heart attack or nearly drowns. The American Heart Association recommends starting CPR with hard and fast chest compressions. This hands-only CPR recommendation applies to both untrained bystanders and first responders.) which continued for 20 - 25 minutes but no hard rate revived thereafter he was given DE FABRILATOR ( Defibrillators are devices that apply an electric charge or current to the heart to restore a normal heartbeat. If the heart rhythm stops due to cardiac arrest, also known as sudden cardiac arrest (SCA), a defibrillator may help it start beating again.) but thereafter they found a straight line on the ECG monitor many thereby that the patient was no more and he was declared dead. All these exercise was only two show that the patient was alive when he reached RML Hospital which cannot be believed. These circumstances show that the patient was dead when brought to RML Hospital.
The enquiry commission has stated that in the nursing home Surgical Centre there was no doctor/paramedical staff but only two ward boys Mr Guddu Kumar and Mr Arvind Kumar were present. According to them there were three doctors (on call doctors ) and except these three there are doctors on call doctors, there was one PRO and one some doctor Apeksha Vishnoi . It shows that there was no regular doctor posted in the nursing home and the work is going on only on the basis of "on call doctors" . When we saw online about this surgical clinic, Dr Sumeet Seth is there as director of this surgical clinic . Dr. Sumeet Seth about which it is written that he is a general surgeon having worked with several hospitals and has 17 years of relevant experience. Being a surgeon, he should have known about the consequences of an illegal operation by a doctor who was a government servant but he permitted him to do operation in his nursing home which shows his involvement in the said gang who do anything for earning money from the patients. So the owner of the nursing home, Dr attached with this nursing home may be on call doctors who reached the venue during the operation of this patient, all are negligent because they knew that this nursing home has not been equipped with all the operation facilities and also being a new hospital it has not been any expert laparoscopic Doctor . All contributed in this operation. The opposite party -4 , Dr Warija Seth has submitted his written statement stating that she was merely present in the hospital premises but has nothing to do with the operation. She was merely present to meet her husband and her mere presence in the premises is not enough to make her party to this dispute. But when she was present there to meet husband so she should have also sold as husband that Dr Arun Kumar Srivastava should not be permitted to operate in this nursing home as he is a government Dr and by the Act mentioned above, private practice of the government Dr has been barred. Show she was a mute spectator of the whole episode.
PW-1 & 2 has stated in his written statement that the complainant has already received an amount of ₹ 20 lakhs as compensation on 10 November 2015 from the State Government in cash as published in the news paper on 11 November 2015, along with the assurance for the job for the brother and sister of the deceased. No proof in this regard has been filed by the opposite parties. There is no proof that the brother and sister of the deceased were given any government job. So in the absence of any cogent evidence we do not take it as granted that it has happened.
So after going through all the evidences and considering the contribution of the doctors in this operation, we are of the view that the law responsible for the death of the patient. PW - 6 Dr Sanjiv Bhatia has admitted in his written statement that he reached operation theatre in about 20 minutes and after preparing for OT saw the patient under anaesthesia and Abdomin was open with bleeding profusely from post-wall of Abdomen. On exploration a rent of about 2 cm IVC seen on under difficult situation the opposite party - 6 was able to repair the rent and after maintaining haemostatis he handed over the patient to the operative surgeon to perform his procedure and left the operation theatre which is evident from the operation note filed the by the complainant. During the argument in the court the counsel of PW-6 stated that Dr Bhatia is a plastic surgeon and when he reached the nursing home, he saw the patient but he did nothing and return from the nursing home because it was not repairable . But in his statement he himself has admitted that he repaired the rent and after maintaining haemostatic he left the operation theatre. It shows that he had full knowledge regarding the said operation and knowing that the inferior Vena Cava has ruptured or damaged and he managed to repair it and as stated by him, he was able to repair the rent and maintaining haemostatis.
Homeostasis Meaning and Etymology The theory of homeostasis was first introduced by Claude Bernard, a French Physiologist in the year 1865, and the term was first used in 1926 by Walter Bradford Cannon. Bradford derived Homeostasis from the ancient Greek words ὅμοιος (pronounced: hómoios) and ἵστημι (pronounced: hístēmi). The combination of these words translates to "similar" and "standing still" respectively.
Homeostasis Definition Read on to explore what is homeostasis and its role in regulating internal body environment.
What is Homeostasis?
Homeostasis is quite crucial for the survival of organisms. It is often seen as a resistance to changes in the external environment. Furthermore, homeostasis is a self-regulating process that regulates internal variables necessary to sustain life.
In other words, homeostasis is a mechanism that maintains a stable internal environment despite the changes present in the external environment.
The body maintains homeostasis by controlling a host of variables ranging from body temperature, blood pH, blood glucose levels to fluid balance, sodium, potassium and calcium ion concentrations.
Regulation of Homeostasis The regulation of homeostasis depends on three mechanisms:
Effector.
Receptor.
Control Center.
The entire process continuously works to maintain homeostasis regulation.
Receptor As the name suggests, the receptor is the sensing component responsible for monitoring and responding to changes in the external or internal environment.
Control Center The control centre is also known as the integration centre. It receives and processes information from the receptor.
Effector The effector responds to the commands of the control centre. It could either oppose or enhance the stimulus.
An Example of Homeostasis in Action Receptor Cutaneous receptors of the skin.
Control centre Brain.
Effector Blood vessels and sweat glands in the skin.
The skin has receptors that detect changes in temperature. If the external temperature rises or drops below the equilibrium, the control centre sends signals to the blood vessels and sweat glands in our skin to react accordingly. If the temperature is too hot, the blood vessels dilate (vasodilation) and cause a drop in the body temperature. Moreover, sweat glands produce sweat to accompany vasodilation. If the external temperature is too cold, the blood vessels constrict (vasoconstriction) and enable the body to retain heat.
Homeostasis Breakdown The failure of homeostasis function in an internal environment will result in illnesses or diseases. In severe cases, it can even lead to death and disability.
Many factors can affect homeostasis. The most common are:
Genetics.
Physical condition.
Diet and nutrition.
Venoms and toxins.
Psychological health.
Side effects of medicines and medical procedures.
Body Systems and Homeostasis The body system participates in maintaining homeostasis regulations. The purpose of the body system is to describe several controlling mechanisms where every system contributes to homeostasis.
Listed below are the tables which describe how different organs perform different functions to maintain the internal body environment.
Formed Elements Name Function Platelets It assists blood clotting.
Red blood cells Helps in transporting hydrogen and oxygen ions.
White blood cells It fights against infections.
Plasma Component Function Nutrients Required for cellular metabolism.
Proteins Create osmotic pressure, aids clotting, and helps buffer blood.
Hormones Known as chemical messengers.
Water Provides fluid environment.
Salts Helps in metabolic activity and aids the buffer in blood.
Wastes Produced by cellular metabolism.
Nervous System Central Nervous System Cerebrum Consciousness, creativity, thoughts, morals, memory, etc. Lower portions Reception of sensory data, coordination of muscular activity, homeostasis.
Spinal cord Automatic reflex actions.
Peripheral Nervous System Autonomic system Cranial and spinal motor nerves that control internal organs.
Cranial nerves, spinal nerves Carry sensory information to motor impulses from the CNS.
Major Endocrine Glands and Their Hormones Hormone Function Adrenal medulla Epinephrine and Norepinephrine Stimulates fight or flight response Adrenal cortex Glucocorticoids (e.g., cortisol) Promotes gluconeogenesis Mineralocorticoids (e.g., aldosterone) Promotes sodium re-absorption by kidneys Anterior pituitary Thyroid-stimulating hormones Stimulates thyroid gland.
Adrenocorticotropic hormones Stimulates adrenal cortex gland.
Gonadotropin hormones Stimulates gonads.
Gonads Androgen (male) Estrogen and progesterone (female) Promotes secondary sexual characteristics.
Hypothalamus Hypothalamic-releasing hormones Regulates anterior pituitary hormones.
Posterior pituitary Anti-diuretic hormone Promotes water reabsorption by kidneys.
Parathyroid Parathyroid hormone Maintains blood calcium and phosphorus levels.
Thyroid Thyroid hormones Increases metabolic rates.
Pancreas Insulin Lowers blood sugar level.
Glucagon Raises blood sugar level.
Other Examples of Homeostasis Blood glucose homeostasis.
Blood oxygen content homeostasis.
Extracellular fluid pH homeostasis.
Plasma ionized calcium homeostasis.
Arterial blood pressure homeostasis.
Core body temperature homeostasis.
The volume of body water homeostasis.
Extracellular sodium concentration homeostasis.
Extracellular potassium concentration homeostasis.
Blood partial pressure of oxygen and carbon dioxide homeostasis.
So in this case the rent has been repaired and haemostatis was maintained by PW-6 , while the patient succumbed to death ? So on one side it is said that the plastic surgeon did not do anything even he did not touch the patient and on the other side he himself has admitted that he touched the patient and repaired the rent and maintain the hemostatis. So it cannot be believed in the given circumstances of this case but it is clear that he participated after the operation and before the death of the patient knowing that the government Dr is doing surgery in the private nursing home which is banned by the government. So he is also negligent and careless to some extent.
It is very well settled that the death of a person by negligent act of any person cannot be compensated in terms of the money but the main compensate the family to some extent. Now from the above circumstances, facts of the case, the negligence of the doctors we are of the opinion that the complainant is liable for the following reliefs:-
The complainant is entitled to get ₹ 50 lakhs out of which he will get ₹ 25 lakhs from the OP-3 Dr. Arun Kumar Srivastava and will get rest Rs.25 lakhs from opposite parties -1, 2 & 4 jointly and severally who are liable to permit the others to do illegal operation in their nursing home, with interest at rate of 12% per annum from 20.07.2015 ( the date of death of the patient) if paid within 30 days from the date of judgement of this complaint case otherwise the rate of interest shall be 15% per annum from 20.07.2015 (the date of death of the patient) till the date of actual payment.
The complainant is entitled to get ₹ 15 lakhs towards mental torture, depression and economic loss from the opposite parties 1, 2 & 4 jointly and severally, with interest at a rate of 12% per annum from 20.07.2015 (the date of death of the patient) if paid within 30 days from the date of judgement of this complaint case otherwise the rate of interest shall be 15% per annum from 20.07.2015 ( the date of death of the patient) till the date of actual payment.
The complainant is entitled to get ₹ 40,000 from opposite parties-1, 2 & 4 towards refund of operation fee with interest at a rate of 12% per annum from 20.07.2015 (the date of death of the patient) if paid within 30 days from the date of judgment of this complaint case otherwise the rate of interest shall be 15% per annum from 20.07.2015 (the date of death of the patient) till the date of actual payment.
The complainant is entitled to get ₹ 1,00,000 from opposite parties-1, 2 & 4 jointly and severally towards cost of the case and travelling expenses with interest at a rate of 12% per annum from 20.07.2015 (the date of death of the patient) if paid within 30 days from the date of judgement of this complaint case otherwise the rate of interest shall be 15% per per annum from 20.07.2015 (the date of death of the patient) till the date of actual payment.
Regarding relief no.5 of the complaint case, the complainant is entitled to get NSC of ₹ 20 lakhs (for five years) from opposite party-3 within 30 days from the date of judgement of this complaint case otherwise the amount shall be double after 30 days.
The complainant is also entitled to get ₹ 50,000.00 each from opposite party no.5 and 6 (as both of these were also involved in the illegal operation showing negligence and carelessness) to be paid within 30 days from the date of judgement of this complaint case otherwise they will pay interest at a rate of 12% per annum from 20.07.2015 till the date of actual payment.
The copy of this judgement be sent to the Chief Secretary, UP and Principal Secretary, Health and family welfare for taking necessary action against the nursing home and against all the doctors. The copy of this judgement be placed in their files.
The copy of this judgement be sent to National Medical Commission for taking action to seize the said nursing home and also to cancel all the medical degrees of OP-3 (now retd.) and the bar him from private practice throughout his life.
Be sent to Chief Medical Officer, Lucknow to seize the said nursing home with immediate effect.
If this order is not complied with, within 30 days from the date of judgment of this complaint case, the complainant shall file execution proceeding against the opposite parties at their cost.
ORDER The complaint is allowed with cost.
1- The opposite parties no.1 to 4 are directed to pay to the complainant ₹ 50 lakhs out of which ₹ 25 lakhs from the OP-3 Dr. Arun Kumar Srivastava and will get rest Rs.25 lakhs from opposite parties-1, 2 & 4 jointly and severally, the hospital and the management staff of the hospital who are liable to permit the others to do illegal operation in their nursing home, with interest at rate of 12% per annum from 20.7.2015 (the date of death of the patient) if paid within 30 days from the date of judgment of this complaint case otherwise the rate of interest shall be 15% per annum from 20.7.2015 (the date of death of the patient) till the date of actual payment.
2- The opposite parties no.1, 2 & 4 are jointly and severally directed to pay to the complainant ₹ 15 lakhs towards mental torture, depression and economic loss with interest at a rate of 12% per annum from 20.7.2015 (the date of death of the patient) if paid within 30 days from the date of judgment of this complaint case otherwise the rate of interest shall be 15% per annum from 20.7.2015 (the date of death of the patient) till the date of actual payment.
3- The opposite parties no.1, 2 & 4 are directed jointly and severally to pay to the complainant ₹ 40,000.00 towards refund of operation fee with interest at a rate of 12% per annum from 20.7.2015 (the date of death of the patient) if paid within 30 days from the date of judgment of this complaint case otherwise the rate of interest shall be 15% per annum from 20.7.2015 (the date of death of the patient) till the date of actual payment.
4- The opposite parties no.1, 2 & 4 are directed jointly and severally to pay to the complainant ₹ 1,00,000 towards cost of the case and travelling expenses with interest at a rate of 12% per annum from 20.7.2015 (the date of death of the patient) if paid within 30 days from the date of judgment of this complaint case otherwise the rate of interest shall be 15% per annum from 20.7.2015 (the date of death of the patient) till the date of actual payment.
5- Regarding relief no.5 of the complaint case, the opposite party no.3 is directed to pay to the complainant NSC of ₹ 20 lakhs (for five years) From opposite party-3 within 30 days from the date of judgment of this complaint case otherwise the amount shall be double after 30 days.
6- The opposite parties no.5 and 6 (as both of these were also involved in the illegal operation showing negligence and carelessness) each is directed to pay to the complainant ₹ 50,000.00 to be paid within 30 days from the date of judgment of this complaint case otherwise they will pay interest at a rate of 12% per annum from 20.07.2015 till the date of actual payment.
7- The copy of this judgment be sent to the Chief Secretary, UP and Principal Secretary, Health for taking necessary action against the nursing home and against all the doctors. The copy of this judgment be placed in their files.
8- The copy of this judgment be sent to National Medical Commission for taking action to seize the said nursing home and also to cancel all the medical degrees of OP-3 (now retd.) and the bar him from private practice throughout his life.
9- Be sent to Chief Medical Officer, Lucknow to seize the said nursing home with immediate effect.
10- If this order is not complied with, within 30 days from the date of judgment of this complaint case, the complainant shall file execution proceeding against the opposite parties at their cost.
The stenographer is requested to upload this order on the Website of this Commission today itself.
Certified copy of this judgment be provided to the parties as per rules.
(Sushil Kumar) (Rajendra Singh) Member Presiding Member Judgment dated/typed signed by us and pronounced in the open court. Consign to record. (Sushil Kumar) (Rajendra Singh) Member Presiding Member Dated: 14.12.2023 Jafri, PA II Court 2 [HON'BLE MR. Rajendra Singh] PRESIDING MEMBER [HON'BLE MR. SUSHIL KUMAR] JUDICIAL MEMBER