State Consumer Disputes Redressal Commission
Manoj Kumar Pandey vs Dr. G.P. Shukla on 14 February, 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/16/2016 ( Date of Filing : 15 Jan 2016 ) 1. Manoj Kumar Pandey Bhadohi ...........Complainant(s) Versus 1. Dr. G.P. Shukla Bhadohi ............Opp.Party(s) BEFORE: HON'BLE MR. Rajendra Singh PRESIDING MEMBER HON'BLE MR. SUSHIL KUMAR JUDICIAL MEMBER PRESENT: Dated : 14 Feb 2023 Final Order / Judgement Reserved State Consumer Disputes Redressal Commission U.P. Lucknow. Complaint Case no. 16 of 2016 Manoj Kumar Pandey, aged about 46 years, S/o Late Shyamnarayan Pandey, R/o Gram Sonaicha, Post Beribisa, District Bhadohi U.P..Complainant. Versus 1- Dr. G.P. Shukla s/o ...., Prabhawati Hospital & Trauma Centre, Gerai(G.T. Road) Post, Gopiganj, District, Bhadohi. 2- United India Insurance Co. Ltd., 104, first Floor, Vrindavan Kunj, Exebition Road, Patna through Branch Manager. ...Opposite Parties. Present:- 1- Hon'ble Mr. Rajendra Singh, Presiding President. 2- Hon'ble Mr. Sushil Kumar, Member. Sri S.K. Verma, Advocate for complainant. Sri Pratyush Tripath, Advocate for OP no.1. None for the OP no.2. Date : 27.2.2023 JUDGMENT
Per Mr. Rajendra Singh, Member: The present complaint has been filed under section 17 of the Consumer Protection Act 1986. In brief the facts of the complaint case are that, that the complainant has been an officer in Sobha Enterprises company and was going to Rewa for the work of company in his car no.UP-66B/8553. On December 29, 2014 at about 3.30 p.m. in the revenue village Mangawan District Rewa, the complainant met an accident when a truck hit his car resulting in injury in the right hand, leg, chest and pelvis of the complainant. The incident was reported to the local police by the local residents of the area and the complainant was admitted in Sanjay Gandhi Hospital, Rewa. The concerned doctor plastered his right leg and hand and directed the complainant to come for checkup after one and half months. The complainant returned to his home on 30.12.2014. Due to pain in the fractured leg, the complainant visited the opposite party Dr. G.P. Shukla on 31.12.2014 for his advice and treatment. The opposite party told him that there is fracture below the knee of the leg and patellar of right leg. It will take more than three months to recover. He advised the complainant for fresh operation of patellar and the fracture of the leg and plating will be done and assured that by it the complainant will recover within one and half month and he will start walking.
The complainant was getting Rs.44,761/- and bonus per month during his service. He spent Rs.2 lakhs for the education fee of his son who was in B Tech first year. Considering all the facts complainant trusted the advice of Doctor. The opposite party got the complainant admitted in his hospital Prabhawati Hospital and Trauma Centre, Gerai (GT Road) on 31.12.2014 and started the treatment of the complainant. Operation was performed on 02.01.2015 and thereafter the complainant was discharged on 08.01.2015. The complainant reached the house and on the very next day his right leg's fingers became senseless, so he visited the hospital of the opposite party on 10.01.2015 and complained about his complaint. On it, the opposite party gave false consolation to the complainant that after removal of the plaster it will be alright. Due to plating and plastering, the flow of blood reduces in the leg and fingers and due to this reason he is feeling no sensation in the fingers of the leg. The complainant believed on this consolation.
The complainant again visited the opposite parties hospital on 23.01.2015 for removing his plaster which was removed on the same day but even after the removal of the plaster, there was no sensation in the fingers of his leg and also there was no movement in the fingers. The complainant complained about this to the doctor on that very day. The opposite party told that gradually the flow of blood will start and advised complainant to move his fingers. The complainant started to act as per advice of the opposite party and also took advice of the opposite party from time to time. Even after three months of the removal of the plaster, there was no movement in the fingers of the leg and then complainant visited Dr. U.B. Yadav and Dr. K.D. Tripathi of Allahabad. Who after examining the complainant told that during the operation, the concerned doctor did not pay attention towards the nerve which goes to the fingers through the affected area and this nerve was compressed due to which the sensation to the fingers of the leg stopped. This was due to carelessness of the opposite party who did not pay attention to the nerves in the concerned area and falsely cheated with the complainant that after exercise, the sensation will revive. After summoning a report from neurologist, Dr. U.B. Yadav and Dr. K.D. Tripathi told the complainant that due to continuous closure of the nerve, the nerve became dry. Due to carelessness of the opposite party the possibility of revival of the nerve has become zero and now the complainant could not move. Now the future of the complainant has become dark which has affected the education of his son and also the means to earn livelihood. The complainant has spent Rs.50,000/- for his medical treatment including the operation and medicines and also spent Rs.30,000 for purchasing the medicines from outside. Besides it, he spent Rs.20,000 in transportation et cetera. The complainant has also suffered a loss of his salary of Rs.85 lakhs. For this the complainant has prayed for the following reliefs-
The opposite party no.1 be directed to pay Rs.80,000.00 towards medical treatment and medicines with interest at a rate of 18% per annum.
The opposite party-1 be directed to pay Rs.85 lakhs to the complainant towards loss of salary.
The opposite party no.1 be directed to pay Rs.5 Lacs towards compensation and Rs. 55,000.00 towards cost of the suit.
Any other relief which the Hon'ble court may deem fit.
The opposite party no.1 has submitted his written statement stating that he did MBBS in 1995 from Motilal Nehru Medical College, Allahabad and did Postgraduate Diploma in Orthopaedic, Medical College Meerut in 1999 which is recognised by Medical Council of India. False and baseless allegations have been labelled on him by the complainant. He performed the operation of the fractured bone of the lower right leg of the complainant on 02.01.2015. The complainant has admitted that the bone is reunited after operation hence there is no carelessness on the part of the answering opposite party there is no written prescription or opinion of Dr. U.B. Yadav and Dr. K.D. Tripathi regarding the Pressing of nerve in the record. In some patients, after the operation, there occurred complications regarding infection and non union of the fractured bone. In the same manner there occur neurovascular complications in some patients. Pressing of a nerve in the treatment of a bone is a rare complication. It has been clearly mentioned in the medical literature that in .03% to .2%, pressing of nerve has been reported after operation. The nerve about which the complainant has stated is peroneal nerve.
In medical literature it has been written that in about 50% of the patients, this nerve revive after about five years. Where this nerve did not revive, the concerned patient's were advised for undergoing two types of operation, Tendon Transfer/ Arthrodesis. It is pertinent to mentioned that nobody becomes handicapped by pressing of this nerve. Therefore the allegation of the complainant that he became handicapped is totally false and baseless. The patient was discharged from the hospital on 08.01.2015 and thereafter he came for routine checkup in OPD on 06.02.2015 and thereafter the patient did not come for checkup. This complaint has been filed to exploit the opposite party on the basis of false and frivolous allegations. A medical practitioner can be held liable for negligence only when he did something which is not expected from him. In the complaint, no such circumstances or facts have been mentioned which may establish the negligence on the part of the answering defendant. The patient was treated according to the norms of medical protocol and every precautionary measures were taken in his treatment therefore the answering opposite party cannot be held guilty for any type of negligence. The complaint case has been filed only on basis of speculation and surmises and it should be dismissed.
It is also pertinent to mention here that the answering opposite party is insured with United India Insurance compare Ltd. Rs.05 Lacs which is valid from 16.03.2014 to 15.03.2015. If there is any liability of the answering opposite party, the insurance company shall be liable for it.
We have heard the ld. counsel for the complainant Sri S.K. Verma and ld. counsel of the opposite party no.1 Sri Pratyush Tripathi. None appeared for the opposite party no.2. We have perused the pleadings and documents on record.
Before taking into consideration the different aspects of, precautions and other accident during the operation, it is better to know about the nerve which goes to the legs. There are two bones in the leg. One is femur and other bone consist of two bones, Tibia and Fibula. Tibia and Fibula bones are situated below the knee cap. In the present case there is fracture in the Tibia and Fibula bones. It is better to understand the position of these bones in the light by the following figure-
After it we come to the nerves that run into the legs. In the complaint as per the opposite party the peroneal nerve goes to the lower portion of the leg. If any pressure is exerted on this nerve the result is tingling, weakness and numbness in the lower portion of the leg which is clear by the following diagram-
The common peroneal nerve branches from the sciatic nerve and provides sensation to the front and sides of the legs and to the top of the feet. This nerve also controls the muscles in the leg that lift the ankle and toes upward. Injuries to the peroneal nerve can cause numbness, tingling, pain, weakness and a gait problem called foot drop.
What causes peroneal nerve injury?
The peroneal nerve can be injured by trauma and nerve compression, including:
Knee dislocation Knee or leg fracture Knee or hip replacement surgery Compression of the peroneal nerve in the leg Compression of the peroneal nerve by a nerve sheath tumor or nerve cyst Because other underlying medical conditions can cause the same symptoms as peroneal nerve injury, it is important to be evaluated by an expert who can diagnose your condition and offer appropriate treatment options.
Some neurologic conditions can cause symptoms similar to peroneal nerve injuries, including:
Amyotrophic lateral sclerosis (also known as ALS or Lou Gehrig's disease) Multiple sclerosis Parkinson's disease Herniated lumbar disk Peroneal Nerve Injury Symptoms Inability to point the toes upward or lift the ankle up (dorsiflexion) Pain, weakness or numbness affecting the shin or the top of the foot Loss of ability to move the foot A distinctive gait where the knee is raised higher than normal to clear the foot from the ground when the leg swings forward (also called steppage or foot drop gait) Diagnosis of Peroneal Nerve Injury A doctor needs to accurately diagnose the underlying cause of a peroneal nerve injury in order to prescribe the most appropriate therapy. When assessing a person who may have a peroneal nerve injury, the doctor will begin with a careful history and proceed with a comprehensive clinical and neurologic exam.
In order to locate and fully determine the extent of the nerve injury, the doctor may order tests to evaluate how the muscles and nerves are functioning, including:
Electromyography, which measures ongoing muscle activity and response to a nerve's stimulation of the muscle.
Nerve conduction study, which measures the amount and speed of conduction of an electrical impulse through a nerve.
The doctor may also order any of the following imaging techniques:
CT scan Ultrasound MRI MR neurography: An MRI that uses specific settings or sequences that provide enhanced images of nerves. From the patient's perspective, the experience is the same as undergoing a regular MRI.
Peroneal Nerve Injury Treatment Depending on the location and degree of the nerve damage, the doctor may prescribe different courses of therapy. If the problem is caused by an underlying illness, it is important to address that issue.
Nonsurgical treatments, including orthotics, braces or foot splints that fit inside the person's shoe, can bring relief. Physical therapy and gait retraining can help the person improve their mobility.
Some injuries may require peripheral nerve surgery, including one or more of these procedures:
Decompression surgery Nerve repair Nerve grafting Nerve transfer Tendon transfer What You Need to Know About Tibia and Fibula Fractures Tibia fractures are the most common lower extremity fractures in children. They account for 10 to 15 percent of all pediatric fractures.
Fractures can be described as low-energy -- caused by twisting or falls from standing height. Or high-energy -- caused by high levels of force, such as a car accident or a fall from a long distance.
A physical examination and X-rays are used to diagnose tibia and fibula fractures.
Treatment for tibia and fibula fractures ranges from casting to surgery, depending on the type and severity of the injury.
What are tibia and fibula fractures?
Tibia and fibula are the two long bones located in the lower leg. The tibia is a larger bone on the inside, and the fibula is a smaller bone on the outside. The tibia is much thicker than the fibula. It is the main weight-bearing bone of the two. The fibula supports the tibia and helps stabilize the ankle and lower leg muscles.
Tibia and fibula fractures are characterized as either low-energy or high-energy. Low-energy, nondisplaced (aligned) fractures, sometimes called toddler's fractures, occur from minor falls and twisting injuries. High-energy fractures, such as those caused by serious car accidents or major falls, are more common in older children.
Tibia and Fibula Fractures Diagnosis Fractures of the tibia and fibula are typically diagnosed through physical examination and X-rays of the lower extremities.
Common Types of Tibia and Fibula Fractures There are several ways to classify tibia and fibula fractures. Below are some of the most common tibia and fibula fractures that occur in children. Sometimes they may also involve the fracture of the growth plate (physis) located at each end of the tibia.
Proximal Tibial Fractures These fractures occur in the knee end of the tibia and are also called tibial plateau fractures. Depending on the exact location, a proximal tibial fracture may affect the stability of the knee as well as the growth plate. Common proximal tibial fractures include:
Proximal Tibial Epiphyseal Fracture: This type of fracture affects the top portion of the bone (epiphysis) and the growth plate. Separation of the growth plate from the bone is usually caused by direct force to the knee. It's important to have this type of fracture corrected properly. It may affect future growth and cause deformities if not addressed correctly. Treatment usually consists of setting the bone without surgery, which in some cases may be accompanied by surgical insertion of special pins or screws to secure the tibia while it heals.
Proximal Tibial Metaphyseal Fracture (Cozen's Fracture): This fracture affects the "neck" of the bone (metaphysis), where the tibia starts to narrow down. It is most common in children between the ages of two and eight. This injury can happen when force is applied to the side of the knee while the leg is extended. It is typically treated by setting the bone without surgery and using a cast to reduce movement. The cast is usually worn for about six weeks. Valgus deformity (knock knee) is one of the main potential complications after this fracture.
Tibial Shaft Fractures This type of fracture takes place in the middle, or shaft (diaphysis), of the tibia. There are three types of tibial shaft fractures:
Nondisplaced: A fracture where the broken bones remain aligned. This type of fracture is usually seen in children under four. It can be caused by a mildly traumatic event or a twisting injury. Often, the first symptom is a limp. Examination usually reveals tenderness or swelling at the lower part of the tibia. The treatment typically involves immobilization in a short- or long-leg cast. The duration is three to four weeks for toddlers and six to 10 weeks for older children.
Displaced, noncomminuted: A fracture where the bones are broken in no more than two pieces (noncomminuted) but are not aligned. This is an isolated fracture of the tibia with an intact fibula. It's the most common tibial shaft fracture. It is caused by a rotational or twisting force such as a sports injury or a fall. Treatment includes setting the bone without surgery and a long-leg cast with the knee bent. Unstable displaced fractures may require surgery.
Displaced, comminuted: A fracture where the bones are broken in several fragments and are not aligned. This fracture can be caused by high-energy trauma, such as a car accident or being struck by a vehicle. The treatment includes setting the bone without surgery and a long-leg cast worn for four to eight weeks. A short-leg weight-bearing cast maybe also be needed in some patients. Unstable fractures may need surgery to maintain alignment.
Distal Tibial Fractures These fractures occur at the ankle end of the tibia. They are also called tibial plafond fractures. One of the common types in children is the distal tibial metaphyseal fracture. This is a fracture in the metaphysis, the part of tibia before it reaches its widest point.
These fractures are usually transverse (across) or oblique (slanted) breaks in the bone. Distal tibial metaphyseal fractures usually heal well after setting them without surgery and applying a cast. However, there is a risk of full or partial early closure of the growth plate. This may lead to a growth arrest in the form of leg length discrepancy or other deformity.
Treatment Options for Tibia and Fibula Fractures Tibia and fibula fractures can be treated with standard bone fracture treatment procedures. The treatment depends on the severity of the injury and age of the child. It may include some of the following approaches, used either alone or in combination:
Closed reduction and immobilization: Setting the bone in place without surgery, and immobilization in a long-leg or a short-leg cast Open reduction: Exposing the bone surgically to set it back in place -- typically performed on open fractures where the bone has punctured the skin. This procedure is usually accompanied by internal or external fixation.
Internal fixation: Connecting the broken bones with screws, plates, rods and nails that will remain under the skin.
External fixation: Using pins, clamps and rods to stabilize the fracture from the outside.
Percutaneous pinning: Inserting wires across the fracture to hold the pieces in place until they heal. The wires are removed after the fracture has healed.
Medications: When the fracture has broken the skin, treating with antibiotics to prevent infection and analgesics to control pain. A tetanus shot may also be needed.
Treatment of Open Fractures of the Tibia An open fracture occurs when the bone or parts of the bone break through the skin. This type of fracture usually results from high-energy trauma or penetrating wounds. Open fractures of the tibia are common among children and adults.
The treatment of an open tibial fracture starts with antibiotics and a tetanus shot to address the risk of infection. Then the injury is cleaned to remove any debris and bone fragments. Surgery may also be needed depending on the wound size, amount of tissue damage and any vascular (circulation) problems. Open reduction and internal fixation is the surgery that can be used to reposition and physically connect the bones in an open fracture.
Wounds may be treated with vacuum-assisted closure. This procedure involves placing a piece of foam in the wound and using a device to apply negative pressure to draw the edges of a wound together. Repeated cleanings prior to closing the wound may be used instead. Or an external fixator may be used to surgically repair the wound.
We have perused the consent form dated 31.12.14. There is signature of Mr. P.K. Pandey on this consent form but there is no signature of any family member of the patient or the concerned doctor. This printed consent form has been filled by the complainant Manoj Pandey but there is no signature of the complainant on this consent form. We have seen the concerned document regarding consent. It is a printed pro forma on which everything is printed. In this consent form it has been written in Hindi "मै अधोहस्ताक्षरी श्री मनोज पाण्डेय पति/पत्नी/पुत्र/पुत्री श्री श्याम नरायन निवासी सोनाइचा पोस्ट बैरीबिसा जिला एस0आर0एन0 भदोही डॉ0 जी0पी0 शुक्ला (और उनके द्वारा नियुक्त सहायक तथा सहयोगी चिकित्सको) को ऐसा उपचार, जो कि आवश्यक हो- देने के लिए और निम्नलिखित ऑपरेशन/प्रक्रिया तथा उसके परिणामस्वरूप होने वाले अन्य ऑपरेशन/प्रक्रियाएं, उस ऑपरेशन के दौरान शरीर के किसी अंग या ऊतकों को निकालने के लिए जिनको चिकित्सक उचित समझेंए इसके अतिरिक्त अन्य कोई ऑपरेशन/प्रक्रिया जिसकी आवश्यकता हो उक्त ऑपरेशन को करते समय चिकित्सकगण उचित समझें करने के लिए एतद्वारा (इसके द्वारा) अधिकार देता हूँ।
मै उक्त ऑपरेशन/प्रक्रिया के लिए आवश्यक Anaesthetic (चेतना शून्य करने वाली औषधि) देने के लिए भी अपनी स्वीकृति देता हूँ।
मै इस अस्पताल और अपने डॉक्टरों को यह अधिकार देता हूँ कि ऑपरेशन मे निकाले गये अंग या शरीर के ऊतकों को यहॉं की प्रचलित विधि द्वारा निस्तारित (Dispose) कर दिया जाय।
मै डाक्टर को, यह ऑपरेशन/प्रक्रिया.....................(या अन्य किसी चिकित्सा केन्द्र या स्थान जिसको यह उपयुक्त समझे) में करने के लिए अधिकृत करता हूँ/करती हूँ।
मै प्रमाणित करता हूँ कि ऊपर लिखे चिकित्सीय उपचार या ऑपरेशन के लिए किए गये अधिकृतकरण (Authorisation) को मैंने अच्छी तरह से पढ़ और समझ लिया है, मुझे उन कारणों को जिनसे यह ऑपरेशन/प्रक्रिया आवश्यक है, और इस ऑपरेशन से होने वाले लाभ तथा संभावित उपद्रवों (Complications) तथा संभावित उपचारों के बारे में डॉ0 जी0पी0 शुक्ला ने अच्छी तरह से समझा दिया है।
मै यह भी प्रमाणित करता हूँ कि मुझे ऑपरेशन/उपचार के परिणाम के विषय में कोई गारण्टी या आश्वासन नहीं दिया गया है।"
Consent and the Indian medical practitioner 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.
INTRODUCTION 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 Orscase,[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 Anrcase,[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 Document the fact that patient and relatives were allowed to ask questions, and their queries were answered to their satisfaction.
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 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.
Alterations or additions are made in the consent form without patient's signed authorisation.
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 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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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 discuss a little about consent form filed by the opposite parties as annexure -2 with his written statement. First there is no signature of the concerned Dr on this consent form. There is no separate consent form for anaesthesia. This pro forma is not in accordance with the pro forma prescribed for taking the consent. There is no separate consent to use the body for post-mortem examination for the purpose of study. There is nothing in this consent form which show that the doctor has specifically mentioned all the risks to the patient or his family members regarding operation or any other tests which may be performed. So this consent form is not a proper consent form as per the guidelines. It also shows deficiency and negligence on the part of the opposite parties.
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.
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. Kaushik Nandy (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. Kaushik Nandy 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:
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].
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] 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."
Immediate postoperative care:
Now an action arises whether there was proper post-operative care taken by the opposite parties after the operation and after the complication developed in the body of the patient.
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 minimized. 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 hemorrhage, shock, sepsis and the effects of analgesia and anesthetic. 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 anesthetist and then the ward staff and pain team or anesthetist, 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.
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 is crystal clear that the opposite parties failed to provide the required post-operative care and also preoperative and operative care. When you came to know that there is no sensation or numbness in the fingers of the patient, it was opposite parties duty to get the CT scan or MRI done for the proper treatment but he failed to take proper care in this case.
No doubt that the doctor performed his duty with utmost care and caution but they also showed negligence in some areas . The circumstances shows that after operation, the opposite parties could not manage the complications of the patient which related in his disablement. It shows that the opposite parties have no proper and required paraphernalia for the postoperation care. This itself shows the carelessness of the opposite party and also establishes the negligence played in this case with the complainant.
Now we come to the present case. A copy of Bed Head Ticket has been filed showing the date of admission as 31.12.2014 and date of discharge 08.01.15. The operation was performed on 02.01.15. Thus it is clear that the patient has been discharged on sixth day of the operation. The counsel said that that there was no plastering after the operation but the complainant has specifically stated that his plaster was removed on 23.01.15. Before removing plaster the complainant visited the doctor on 9th& 10th January 2015 and complained about the numbness and no sensation in the fingers of his right leg. But no immediate action was taken by the complainant. After removal of plaster, no sensation revived in the fingers of the leg. The opposite party has categorically stated that in .03% to .2% cases, suppression of nerve has been reported. It shows the doctor has knowledge about this condition but neither it has been mentioned in the consent form nor the opposite party started treating it when the complainant first visited him regarding complaint of numbness in the fingers of the leg. The opposite party has stated all these things according to medical literature. If he had knowledge about all these complications as he has mentioned in his argument, why did he not take step for treatment at the earliest. The opposite party has stated that in about 50% patient, this nerve revives after five years of treatment. In this case the complainant has filed Disability Certificate dtd 30.08.2016 showing 40% disability. Five years have already been passed but the complainant did not get any revival of the concerned nerve. The opposite party knew this fact that in 50% of the patient, this nerve revives after five years but what about the rest 50% patients. So the opposite party had full knowledge about this complication and in spite of it he did not disclose it to the complainant and also he did not take any step for its early treatment for which he was totally responsible and it was his moral and medical obligation.
In the present case there are so many deficiencies and negligence shown by the opposite parties from the very beginning in the treatment of the patient. As discussed earlier consent was not on the proper form, the complainant was not made aware of the complications, no early treatment was given to the complainant for the revival of the concerned nerve. In this case it also came to our knowledge that the complainant -1 did postgraduate diploma in orthopaedic but he is not MS orthopaedic. There was lack of post-operative care in his hospital/nursing home.These are the circumstances which speak themselves and all the facts indicate towards the negligence of the opposite parties.
When the opposite party came to know that the patient has some problem in his fingers of the right leg, it was his duty to go for thorough examination which includes CT scan and MRI. But nothing has been done and ultimately the complainant became 40% disable. The opposite party has accepted that in medical literature this type of condition may happen but he did not take any precautionary measurement to avoid this. The most irresponsible act on the part of the case not to send the patient for CT scan or MRI. No medicines or precautions had been entered in the discharge ticket. The opposite party has filed a note of Dr KD Tripathi stating that the "transient common peroneal nerve is well known complication of fracture proximal tibia. It can very well happen during the injury or after the injury and sometimes at the time of surgery. It is usually recovers well during the due course of time. It is well documented, patients of event in the medical literature as well." If the complainant is so dependent on the medical literature then he should have known this fact very well before performing the operation. Why did he not disclose all these complications to the complainant or his family members before the operation? Why did he not take step for CT scan or MRI and why did he not start medication at appropriate time? Now he is filing the literature showing that all this completion may happen in some cases. In medical literature it has also been mentioned -
"In order to locate and fully determine the extent of the nerve injury, the doctor may order tests to evaluate how the muscles and nerves are functioning, including:
Electromyography, which measures ongoing muscle activity and response to a nerve's stimulation of the muscle.
Nerve conduction study, which measures the amount and speed of conduction of an electrical impulse through a nerve.
The doctor may also order any of the following imaging techniques:
CT scan Ultrasound MRI MR neurography: An MRI that uses specific settings or sequences that provide enhanced images of nerves. From the patient's perspective, the experience is the same as undergoing a regular MRI."
Whether the opposite party went for any of these tests to confirm the extent of nerve injury? So it is a clear case of negligence on the part of the opposite party. It has also been written in the medical literature-
"Depending on the location and degree of the nerve damage, the doctor may prescribe different courses of therapy. If the problem is caused by an underlying illness, it is important to address that issue.
Nonsurgical treatments, including orthotics, braces or foot splints that fit inside the person's shoe, can bring relief. Physical therapy and gait retraining can help the person improve their mobility.
Some injuries may require peripheral nerve surgery, including one or more of these procedures:
Decompression surgery Nerve repair Nerve grafting Nerve transfer Tendon transfer"
Whether the opposite party has prescribed any of the treatment as mentioned in the medical literature? If not, he is guilty of negligence in the proper treatment of his patient/complainant. When he came to know that there is problem in the nervous system of the complainant that to related to the surgery of right leg bone, it was his duty to take all the precautionary steps to overcome this difficulty but he did not take any step except to take the help of medical literature. The opposite party has no degree of an as surgery but he is diploma in Orthopaedic.
What is the scope of Diploma in orthopedics?
A Diploma in Orthopedics provides you with a thorough understanding of the role of an orthopedist. As an orthopedist, you will be responsible for patients' health, staff, medical college, and other people. In addition to working as a doctor, orthopedists may also work as therapists or medical college professors.
Master of Surgery (MS) in Orthopedics is a 3 year postgraduate course pursued after an MBBS degree. The course is recognized by the Medical Council of India (MCI). The course teaches aspirants about the branch of surgery that deals with Chronic, Acute, Traumatic and other disorders of the musculoskeletal system.
So it was duty of the opposite party to take opinion of any MS orthopaedic or openion of senior orthopaedic surgeon but he did not take any steps so there was complete lack of post-operative care. There is difference between diploma in Orthopaedic and MS orthopaedic.
After considering all the facts and discussions and also going through the various medical articles it is clear that there is negligence on the part of the opposite parties in the treatment of complainant. There is clear defficiencies in services on the part of the opposite parties. Opposite party no.1 did not do his best and from all the surrounding circumstances it is clear that negligence has been shown, may be not by him but by his team members and resident doctors who were on duty. In this case the consent letter is not in accordance with the guidelines. No satisfactory explanation has been given regarding non-treatment of the complications in time.
These are the circumstances which establishes the negligence on the part of the opposite parties. Opposite party no.2 is the insurer of opposite party -1 and in case of held guilty of a party-1 maybe reimbursed by the opposite party no.2. So in this case opposite party no.1 is liable for the negligence and deficiency of service.
The complainant has prayed a compensation of Rs.80,000.00 towards medical treatment and medicines, Rs.85 lakhs towards medical negligence and loss of salary, Rs.5 Lacs towards bodily compensation and Rs.55,000.00 towards cost of the case.
Regarding cause of the complaint and negligence shown on the part of the opposite party -1 , keeping in mind the facts and circumstances of the case, we are of the opinion to grant following reliefs to the complainant. So the complainant is decided accordingly.
ORDER 1- The opposite party no.1 is directed to pay ₹50 lakhs as damages/compensation for the negligence and deficiency of service to the complainant with interest at a rate of 10% from 01.02.2015till the date of payment, within 60 days from the date of judgment of this complaint case otherwise the rate of interest shall be 15% from 01.02.2015 till the date of actual payment.
2- The opposite party no.1 is directed to pay ₹06 lakhs to the complainant towards mental agony/torture and depression, expenditure on medical treatment and cost of the suit with interest at a rate of 10% from 01.02.2015 till the date of payment, within 60 days from the date of judgment of this complaint case otherwise the rate of interest shall be 15% from 01.02.2015 till the date of actual payment.
3- If it is not paid 60 days from the date of judgment of this complaint case, the complainant shall be entitled to present execution proceedings before this court at the cost of the opposite party no.1.
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 the Record Room. (Sushil Kumar) (Rajendra Singh) Member Presiding Member Dated : 27.2.2023 JafRi, PA II C-2 Co [HON'BLE MR. Rajendra Singh] PRESIDING MEMBER [HON'BLE MR. SUSHIL KUMAR] JUDICIAL MEMBER