State Consumer Disputes Redressal Commission
Dr. S.D. Maurya vs Smt. Madhuri Sharma on 20 July, 2022
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UP C-1 Vikrant Khand 1 (Near Shaheed Path), Gomti Nagar Lucknow-226010 First Appeal No. A/2779/2018 ( Date of Filing : 14 Dec 2018 ) (Arisen out of Order Dated 14/11/2018 in Case No. C/219/2012 of District Agra-II) 1. Dr. S.D. Maurya Sach Khand Hospital In Front of Holi Public School Bhavna State Sikandra Agra ...........Appellant(s) Versus 1. Smt. Madhuri Sharma W/O Sri Yogeshwar Sharma R/O Hydel Colony By-Pass Road Agra ...........Respondent(s) BEFORE: HON'BLE MR. Rajendra Singh PRESIDING MEMBER HON'BLE MR. Vikas Saxena JUDICIAL MEMBER PRESENT: Dated : 20 Jul 2022 Final Order / Judgement Reserved State Consumer Disputes Redressal Commission U.P. Lucknow. Appeal No 2779 of 2018 Dr. S. D. Maurya Sach, Khand Hospital, In front of Holi Public School, Bhavna, State, Sikandra, Agra. Dr. Siddarth Dhar Maury, In front of Holi Public School, Bhavna, State, Sikandra, Agra. Maurya Sach Khand Hospital, In front of Holi Public School, Bhavna, State, Sikandra, Agra....Appellants. Versus Smt. Madhuri Sharma w/o Yogeshwar Sharma, Hydel Colony By-pass, Road, Agra. ...Respondent. Present:- 1- Hon'ble Sri Rajendra Singh, Member. 2- Hon'ble Sri Vikas Saxena, Member. Sri Arun Tandan, Advocate for the appellant. Sri Vishnu Kumar Mishra, Advocae for the respondent. Date : 29.07.2022 JUDGMENT
Per Sri Rajendra Singh, Member- The present appeal has been filed by the appellants under section 15 of the Consumer Protection Act 1986, against the judgment and order dated 1.12.2018 passed by the learned District Consumer Forum- II, Agra in complaint case no.219/2012, Madhuri Sharma Vs. Dr. S. D. Maurya & Ors., which is as follows:
"परिवाद उपरोक्तानुसार स्वीकार करते हुए परिवादिनी द्वारा उसके इलाज में खर्च हुए मु0 6,07,233/- रू0 बतौर इलाज के व्यय के दिलाये जाते हैं। शारीरिक एवं मानसिक कष्ट के लिए परिवादिनी को विपक्षीगण से मु0 2,00,000/- रू0 दिलाये जाते हैं। परिवाद के व्यय के रूप में मु0 7500/- रू0 दिलाये जाते हैं। इस प्रकार कुल मु0 8,14,733/- रू0 परिवादिनी को दिलाये जाते हैं। इस समस्त धनराशि पर परिवाद दायर करने की तिथि से वास्तविक भुगतान की तिथि तक 06 प्रतिशत वार्षिक साधारण ब्याज की दर से ब्याज भी विपक्षीगण परिवादिनी को अदा करेंगे। उपरोक्त समस्त धनराशि विपक्षीगण इस निर्णय की तिथि से एक माह के अंदर परिवादिनी को अदा करेंगे। "
The brief facts of the appeal are that, that the complainant filed a case alleging that the complainant came to the appellant doctor and hospital at Agra in respect of operation of stone after which the operation was done by the appellants and the patient was discharged with serious condition. After that the complainant has taken the treatment from Prabha Hospital and then from Medanta Hospital where the complainant came to know that she was suffering from the disease pseudo-aneurysm Right Hepatic, FUC of Mirrizi Syndrome Status hepaticojeujenostomy which was due to wrong operation and due to deficiency in services of the appellants. The appellants have filed their written statement and admitted the complainant for operation and her husband admitted that if in the interest of the complainant, the open operation can be done and after full satisfaction, the appellants obtained the consent for operation. The complainant was taken to the operation theatre for operation which was to be done through laparoscopic method and the necessary medicines and injections were given to the complainant and the operation was started and laparoscopic Cholecystitic was attempted but after dissecting the Colitis, it was found that the lateral wall of CBD was continuous with the gallbladder and stone was eroding the CBD for about 1.5 cm and right hepatic duct due to myrizizis syndrome required managed by Roux-en-y hepaticojejunostomy and the son of the complainant was called in the operation theatre and shown the problem that the complainant has Mirrizy disease which cannot be treated without major operation of opening abdomen and will require major operation by conversation to open surgery and the complainant sent agree for the open surgery of the complainant. Thereafter the open surgery of abdomen was done and stone in gallbladder was removed. Complainant was called to arrange one unit of blood and the same was brought by the husband and son of the complainant and the only one unit was transfused and condition of the complainant was regularly monitored and post-operative the she did well without any pyrexia, drain or John this and it is pertinent to note that from 14.09.2011 till 18.09.2011, the condition of the complainant was regularly monitored and necessary medicines were prescribed and given to the complainant and from 18.09.2011 the complainant was advised to take tablet orally and light meal was started and she was advised to walk/move in the ward and there was no complain from the complainant in any manner whatsoever and then the complainant was discharged on 21.09.2011 in a satisfactory condition. The appellants have taken so many grounds in the written statement but the learned Forum did not appreciate them.
The learned District Forum has directed the appellants to pay a sum of Rs.607,233/- in respect of medical expenses along with Rs.2 lakhs for physical and mental harassment and Rs.7500/- for litigation charges to the respondent within a period of 30 days from the date of order along with interest at a rate of 6% against which the appellants have now come to this Hon'ble State Commission. The learned District Forum has erred in law and in fact in not appreciating this fact though it was educated by the appellants that the complainant came to the hospital of the appellant 1 with a complaint of pain in abdomen and after ultrasound, it was confirmed that the complainant has stone in the gallbladder and the appellant no.1 advised for removal of stone in gallbladder through laparoscopic method, after which the appellant is admitted the complainant for operation and before operation all facts were clearly stated to the complainant and her husband that if in the interest of the complainant, the open operation can be done and after fully satisfaction, the consent was given for operation and the appellants obtained the consent for operation in which it is clearly stated that:
"हमारे मरीज की पित्त की थैली में पथरी है जो अल्ट्रासाउण्ड रिपोर्ट द्वारा प्रमाणित है तथा डॉक्टर साहब ने बताया है कि ऑपरेशन करके पथरी को पित्त की थैली सहित बाहर निकाला जायेगा। यह ऑपरेशन दूरबीन विधि से होगा। यदि आवश्यकता पड़ी तो मरीज के हित यह आपरेशन ओपिन भी किया जा सकता है। आपरेशन के दरम्यान यदि ब्लड की आवश्यकता पड़ी तो उसका इन्तजाम मैं करूंगा, यदि आई0सी0यू0 की आवश्कता पडी तो उसका व्यय मैं करूंगा। सारी जानकारी के उपरान्त मैं आपरेशन करने की सहमति देता हूं।"
But the learned Forum has not considered this aspect of the matter and passed the impugned order. A great injustice has been done by the learned Forum to the appellants and so the impugned judgement and order passed by the learned District Forum is liable to be set aside.
The learned the forum has erred in law and in fact in not appreciating this fact though it was agitated by the appellants that the complainant was taken to the operation theatre for operation which was to be done through laparoscopic method and necessary medicines and injections were given to the complainant and the operation was started. The laparoscopy Cholecystitic was attempted but after distracting the colitis , it was found that lateral wall of CBD was continuous with the gallbladder and stone was eroding the CBD for about 1.5 cm and right hepatic duct due to Myrizzy syndrome required managed by Roux-en-y hepaticojejunostomy and and the son of the complainant was called in the operation theatre and shown the problem that the complainant has Mirrizy disease which cannot be treated without major operation of opening abdomen and will require major operation by conversation to open surgery and the complainant's son sent agreed for the open surgery of the complainant. Thereafter the open surgery of abdomen was done and stone in gallbladder was removed and called to arrange one unit of blood and the same was brought by the husband and son of the complainant and only one unit was transfused and condition of the complainant was regularly monitored and post-operatively, she did well without any pyrexia, drain or Jaundice.
The learned District Forum has erred in law and in fact in not appreciating this fact though it was agitated by the appellants that the complainant was discharged on 21.09.2011 in a satisfactory condition and the patient was taking food orally and went on walking without any support and necessary medicines were advised to take early time to time and she was called for removal of stitches on 26 September 2011. The complainant came on 23rd September 2011 with the complaint of pain in abdomen and vomiting and she was hospitalised and after checkup the complainant was advice with IV fluid and drip was started and advised for necessary blood investigations and the husband of the complainant took the complainant to Prabha Hospital at their own choice. Thereafter the complainant did not come for checkup and it is noteworthy to mention that the doctors of the Medanta Hospital diagnosed the "Status Hepatocojeujenostomy". This is the only treatment of the Mirrzy syndrome all over the world but the learned Forum has not considered this aspect of the matter and passed the impugned order hence a grave injustice has been done by the learned Forum to the appellants.
The learned Forum did not appreciate the fact that the appellant 1 is the senior qualified surgeon and he is rendering the medical services from last more than 36 years and he was Professor of Surgery, and Endo-laparoscopic Surgeon and he has retired from head of the Department of surgery, SN Medical College and Hospital, Agra. He is national and international faculty of laparoscopy surgery and he has been president of society of laparoscopic and endoscopic surgeon of India, and is invited as operating faculty in India and abroad for demonstrating laparoscopic procedures. He was trained more than 2000 laparoscopic surgeons from India and also from other countries. He is renounced laparoscopic surgeon and teacher and he has been regularly visiting faculty for laparoscopic surgery at AIMS, Delhi, PGI Chandigarh and almost in every state of India and the opposite party 2 is a general and laparoscopic consultant surgeon and the opposite parties have treated the patient with high skill, ability and knowledge and have done more than thousands of operations of the patients successfully without any fail or negligence, but the learned Forum has not considered this aspect.
The learned Forum did not appreciate the fact that appellant no.1 has done the proper operation and treatment of the complainant according to his full skill, ability and knowledge and medical norms and there is no negligence or deficiency on the part of Appellant in the treatment of the complainant. The learned Forum did not appreciate the fact that no expert opinion from medical board of doctors regarding any negligence of opposite party 1 & 2 has taken and as such without any expert opinion,. The learned forum did not appreciate the fact that there is no deficiency in services on the part of the appellants and passed the impugned judgment. The learned Forum has erred in law and in fact as per their own observations made in the body of the impugned order in deciding the case in the manner in which it has been done, hence the order of the learned Forum is liable to be set aside.
The impugned judgment is based on learned forum's own surmises and conjectures and not on any cogent reasons because the learned District Forum has passed the impugned order in a slipshod manner. The impugned judgement is not speaking order. The learned Forum did not consider the facts and circumstances of the case and has passed the impugned order on their own miscalculations, hence it is not only arbitrary but against the material on record. The learned District Forum did not consider the fact that this complicated case involved documentary and oral evidence is to be proved which could not be settled in the summary proceedings before the learned Forum and it is a matter to be agitated in civil Court. The allegations of malafides have been made in the alleged complaint and therefore the alleged complaint in view of the said allegations is not triable as it has been held time and again by the higher courts that the allegations of malafides cannot be looked into under the provisions of Consumer Protection Act. The learned District Forum has exercised its jurisdiction in a wrong direction. It is therefore most respectfully prayed that the Hon'ble State Commission may graciously be pleased to set aside the impugned judgment of the learned District Forum and allow the present appeal.
We have heard the learned counsel for the appellant Mr. Arun Tandan and learned counsel for the respondent Mr. Vishnu Kumar Mishra and perused the pleadings, evidence is and documents on record.
Before discussing the present case, it is better to know something about Mirizzi's syndrome.
What is Mirizzi syndrome?
Mirizzi's syndrome is a rare complication of gallstone disease. are concentrated crystals of bile materials that develop in your gallbladder. Some people have gallstones and don't know it because they often cause no symptoms. But one complication they can cause is obstruction of the bile ducts -- the passageways that lead from your gallbladder throughout your liver. Mirizzi syndrome causes this in a particularly unusual way.
The gallbladder receives and stores bile from yourand releases it into the through branching passageways called ducts. Sometimes gallstones wander into the ducts, and sometimes they are big enough to obstruct the flow of bile. With Mirizzi syndrome, a duct becomes obstructed from the outside when a gallstone within your gallbladder or one of the other ducts becomes so enlarged that it compresses the duct next to it.
How common is Mirizzi syndrome?
Mirizzi syndrome is rare. Because it is so rare, and because it can resemble many other more common conditions, it often isn't considered as a diagnosis until someone is already having surgery for gallstones. Up to 2.5% of people having their are found to have Mirizzi syndrome during surgery.
How does Mirizzi syndrome occur?
Gallstones occur when there is an abundance of one of the ingredients in bile - usually cholesterol or bilirubin - and bile isn't emptied often enough or thoroughly enough from the gallbladder. As the bile sits longer in the gallbladder, bile substances concentrate and eventually clump together into solidified crystals. As new bile continues to wash over the crystals, they gradually grow into gallstones.
While gallstones are still small, they may travel. Migrating gallstones may enter either the cystic duct or the central bile duct and eventually grow big enough to get stuck there, causing inflammation and swelling in the area.
The gallbladder is shaped like a fig or a pear: it has a bulbous body that tapers at the top, then continues into a narrow tube called the cystic duct. It's more the size of a fig, but for the top, think of a pear, how it puffs out just a little around the stem. The stem of the gallbladder is called the neck, and the puff around it is called the infundibulum, or Hartman's pouch.
The pouch, the neck, and the cystic duct are all narrower places where a gallstone could get stuck. They also lie close beside each other -- closer in some people than in others. The cystic duct branches into the common bile duct below and the common hepatic duct above. These two branches can also lie close alongside the cystic duct.
An impacted gallstone or cluster of stones in the pouch, the neck, or the cystic duct can become swollen enough to compress the common bile duct or the common hepatic duct. That's Mirizzi's syndrome.
How does Mirizzi syndrome affect my body?
Mirizzi syndrome begins with an impacted gallstone in the gallbladder or cystic duct, which can cause inflammation and infection of the gallbladder. The additional obstruction of any of the biliary ducts has several effects.
It causes bile to back up into the liver (cholestasis), leading to inflammation. It can also cause bacteria to back up into the liver, leading to serious infection (cholangitis).
Bilirubin from backed-up bile builds up in the bloodstream, leading to And bile that can't flow into your small intestine can't play its part in your digestion. This will affect your ability to break down proteins and absorb certain nutrients.
Fistulas One of the more complicated effects of Mirizzi syndrome occurs when chronic inflammation between the wall that has the stone stuck in it and the wall that is being compressed begins to erode both walls. It's something like an ulcer in the biliary system: inflammation weakens the walls, and bile erodes them until the cells in the wall actually die (necrosis) and fall away. This leads to an abnormal opening between the two branches, called a fistula.
Does Mirizzi syndrome cause cancer?
Mirizzi syndrome is associated with an increased risk of It is not necessarily a contributing cause. Scientists speculate that the same conditions that lead to Mirizzi syndrome also lead to cancer - that is, chronic inflammation and sludgy bile that sits too long in the gallbladder. Both conditions also share similar symptoms. In blood tests, Mirizzi syndrome is associated with high markers of the cancer antigen (CA) 19-9, but strangely, this does not always indicate cancer in Mirizzi syndrome patients. Between 5% and 28% of people with Mirizzi syndrome turn out to have gallbladder cancer. Like Mirizzi syndrome, the cancer is often not found until after surgery.
Is Mirizzi syndrome fatal?
Mirizzi syndrome is treatable, but the risks increase the longer it's left untreated. Fatality associated with Mirizzi syndrome is between 5% and 30%. It can come from systemic infection , from or from associated gallbladder cancer.
What are the symptoms of Mirizzi syndrome?
Symptoms of Mirizzi syndrome fall into three categories:
Symptoms of inflammation - including pain and swelling in the upper right quadrant of the abdomen.
Symptoms of infection - primarily fever, and sometimes nausea, diarrhea or vomiting.
Symptoms of jaundice - including a telltale yellow tint in lighter skin and the whites of the eyes. Symptoms may also include dark-colored pee or light-colored poop.
Not everyone will have all of these. If you do, it indicates a problem with the biliary system, but not necessarily Mirizzi syndrome.
DIAGNOSIS AND TESTS How is Mirizzi syndrome diagnosed?
The symptoms listed above are not specific to Mirizzi syndrome, but they are enough to suspect gallstones with complications. There are a variety of Your healthcare provider may begin with a if you have jaundice or for if you have signs of infection. To look for signs of inflammation or gallstones in the organs, they may begin with an If your gallbladder is swollen with built-up bile, your healthcare provider may suspect gallbladder cancer. This is based on an old rule called Courvoisier's law. According to the law, if your gallbladder is palpable (Courvoisier's gallbladder), it means you probably don't have gallstones, because the resulting inflammation would have caused the gallbladder to harden over time, preventing it from swelling. However, Mirizzi syndrome is the rare exception to this law.
If your healthcare provider suspects an obstruction in one of the ducts -- whether a gallstone or a tumor -- they may then proceed to a more specific imaging test, such as a an or an The ERCP test is the gold standard for diagnosing Mirizzi syndrome, but healthcare providers won't always use it if they don't suspect Mirizzi syndrome. In general, Mirizzi syndrome is more often successfully diagnosed when healthcare providers use two or more kinds of imaging tests. Between 18% and 62% of cases are diagnosed before surgery.
MANAGEMENT AND TREATMENT How is Mirizzi syndrome treated?
Surgery is the mainstay in treatment for most gallbladder complications. When stones block or compress bile ducts, the situation becomes more complex. In these instances, surgeons and gastroenterologists collaborate closely as each may have a role to play in the treatment. Because Mirizzi syndrome has so many variations, there is no standard procedure to manage it - the surgery will be specific to your condition. In general, your gallbladder will likely be removed and the blocked duct will be relieved.
Gallbladder removal is commonly done through small incisions aided by a tiny scope. However, your surgeon may have to convert this less-invasive method to open surgery if they find Mirizzi syndrome, which may be more surgically complex. In addition to removing the gallbladder, sometimes impacted bile ducts may need to be removed and the ends reattached. Stents or tubes may be placed to open up narrowed passageways.
If your gastroenterologist discovered your Mirizzi syndrome during an ERCP scan, they might be able to partially treat it then, using the endoscope to remove a stone and guide the placement of stents to open up a narrowed duct. This can help by relieving the obstruction of bile in the ducts, even if gallbladder removal is still necessary afterward. For those who may not be suitable candidates for surgery, this might be the only treatment option.
What are the complications or side effects of the surgery?
Surgery for Mirizzi syndrome is challenging, especially if the condition isn't fully understood before surgery. The anatomy involved can be hard to see well in advance, and often the condition distorts the anatomy. Severe inflammation can cause the organs and ducts to swell, thicken and harden. This makes it easy to accidentally injure the bile ducts during surgery. An accidental injury could lead to excessive bleeding or hemorrhage, as well as bile leakage, which could lead to infection. It could also cause scarring of the bile ducts, leading to down the road.
OUTLOOK / PROGNOSIS Is Mirizzi syndrome curable?
Despite the complications involved, usually surgery successfully treats Mirizzi syndrome. The key is to treat it early enough to avoid the long-term effects of the condition. The more your organs and ducts have been damaged, the more complicated the surgery will be, and the longer your recovery time. However, most people recover well and live well without their gallbladder.
A note from Cleveland Clinic Mirizzi syndrome is rare, but gallstones are common. You may have them and not even know it. You can reduce your risk of cholesterol stones, which are the most common type, by reducing cholesterol in your diet. The rest is unpredictable. The best thing you can do is to stay alert to symptoms of jaundice, inflammation or infection and take these symptoms seriously. Bile needs to flow, and an obstructed bile duct will feel increasingly bad. Don't prolong it. The sooner you seek medical care, the sooner you'll be on your way to recovery.
So it is clear that this syndrome can very well be diagnosed before operation by way of an or an The ERCP test is the gold standard for diagnosing Mirizzi syndrome, but healthcare providers won't always use it if they don't suspect Mirizzi syndrome. In general, Mirizzi syndrome is more often successfully diagnosed when healthcare providers use two or more kinds of imaging tests. Between 18% and 62% of cases are diagnosed before surgery.
Endoscopic retrograde cholangiopancreatography (ERCP) is a test that uses a combination of X-rays and an endoscope. An endoscope is a lighted flexible tube with an attached camera.
Gastroenterologists (doctors who specialize in gastrointestinal disorders) use ERCP to examine and treat problems that affect the liver, pancreas, gallbladder and bile ducts. Bile ducts carry bile from your liver to the gallbladder and on to the pancreas and intestines. Bile is a fluid that breaks down fat in foods Whether in this case the appellant has conducted all these tests before operating the patient? We did not find any pathological tests or ultrasound test report in the file. Can anybody imagine that before operating the gallbladder, the concerned Dr did not advice for any pathological tests? If you are a Dr of such a high calibre having so many degrees and faculties, was it not your duty to go for ultrasound, CT scan, MRI or ERCP test before opening the abdomen of the patient?
Now we come to laparoscopyoperation . How is it done and what are the methods are procedure for laparoscopic operation.
A laparoscopy, also known as a diagnostic laparoscopy, is a surgical diagnostic procedure used to examine the organs inside the, as well as other closed spaces, such as the knees. It's a low risk, minimally invasive procedure that requires only small incisions.
When an abdominal laparoscopy is performed, a doctor uses an instrument called a laparoscope to look at the abdominal organs. A laparoscope is a long, thin tube with a high intensity light and a high resolution camera at the front. The instrument is inserted through an incision in the abdominal wall. As it moves along, the camera sends images to a video monitor.
A laparoscopy allows your doctor to see inside your body in real time, without having to make large incisions. Your doctor can also obtain biopsy samples during this procedure, as well as also perform surgery.
A laparoscopy is often used to identify and diagnose the source of pelvic or . It's usually performed when noninvasive methods are unable to help with diagnosis.
In many cases, abdominal problems can also be diagnosed with imaging techniques such as:
which uses high frequency sound waves to create images of the body which is a series of special that take cross-sectional images of the body which uses magnets and radio waves to produce images of the body A laparoscopy is performed when these tests don't provide enough information or insight for a diagnosis. The procedure may also be used to take a biopsy, or sample of tissue, from a particular organ in the abdomen.
Your doctor may recommend a laparoscopy to examine the following organs:
e organs By observing these areas with a laparoscope, your doctor may detect:
an abdominal the effectiveness of certain treatments the degree to which a particularhas progressed Your doctor may also be able to perform an intervention to treat your condition immediately after diagnosis.
The most common risks associated with a laparoscopy are , infection, and damage to organs in your abdomen. However, these are rare occurrences.
After your procedure, it's important to watch for any symptoms of infection. Contact your doctor if you experience:
There is a small risk of damage to the organs being examined during a laparoscopy. Blood and other fluids may leak out into your body if an organ is punctured. In this case, you'll need another surgery to repair the damage.
Less common risks include:
complications from general anesthesia inflammation of the abdominal wall which could travel to your pelvis, legs, or lungs In some circumstances, your surgeon may believe the risk of a diagnostic laparoscopy is too high to warrant the benefits of using a minimally invasive technique. This situation often occurs for people who've had prior abdominal surgeries, which increases the risk of forming adhesions between structures in the abdomen.
Performing laparoscopy in the presence of adhesions can take much longer and increases the risk of injuring organs.
You should tell your doctor about any prescription or over-the-counter medications you're taking. Your doctor will tell you how they should be used before and after the procedure.
Your doctor may change the dose of any medications that could affect the outcome of a laparoscopy. These drugs include:
You should also tell your doctor if you're . This will reduce the risk of harm to your developing baby.
You'll probably need to avoid eating and drinking for at least 8 hours before a laparoscopy. You should also arrange for a family member or friend to drive you home after the procedure. A laparoscopy is often performed using general anesthesia, which can make you drowsy and unable to drive for several hours after surgery.
How is an abdominal laparoscopy performed?
A laparoscopy is usually done as an outpatient procedure. This means that you can go home the same day as your surgery in many cases. It may be performed in a hospital or an outpatient surgical center.
You'll likely be given general anesthesia for this type of surgery. This means that you'll sleep through the procedure and typically won't feel any pain. To achieve general anesthesia, an intravenous (IV) line is inserted in one of your veins. Through the IV, your anesthesiologist can give you special medications and well as provide hydration with fluids.
During a laparoscopy, the surgeon makes an incision below your belly button, and then inserts a small tube called a cannula. The cannula is used to inflate your abdomen with carbon dioxide gas. This gas allows your doctor to see your abdominal organs more clearly.
Once your abdomen is inflated, the surgeon inserts the laparoscope through the incision. The camera attached to the laparoscope displays the images on a screen, allowing your organs to be viewed in real time.
The number and size of incisions depends upon what specific diseases your surgeon is attempting to confirm or rule out. Generally, you get from one to four incisions that are each between 1 and 2 centimeters in length. These incisions allow other instruments to be inserted.
For example, your surgeon may need to use another surgical tool to perform a biopsy. During a biopsy, they take a small sample of tissue from an organ to be evaluated.
After the procedure is done, the instruments are removed. Your incisions are then closed with stitches or surgical tape. Bandages may be placed over the incisions.
When the surgery is over, you'll be observed for several hours before you're released from the hospital. Your vital signs, such your breathing and heart rates, will be monitored closely. Hospital staff will also check for any adverse reactions to the anesthesia or the procedure, as well as monitor for prolonged bleeding.
The timing of your release will vary. It depends on your overall physical condition and your body's reaction to the surgery. In some cases, you may have to remain in the hospital overnight.
A family member or friend will need to drive you home if you received general anesthesia. The effects of general anesthesia usually take several hours to wear off, so it can be unsafe to drive after the procedure.
In the days following a laparoscopy, you may feel moderate pain and throbbing in the areas where incisions were made. Any pain or discomfort should improve within a few days. Your doctor may prescribe medication to relieve the pain.
It's also common to have after your procedure. The pain is usually a result of the carbon dioxide gas used to inflate your abdomen to create a working space for the surgical instruments. The gas can irritate your which shares nerves with your shoulder. It may also cause some . The discomfort should go away within a couple of days.
You can usually resume all normal activities within a week. You'll need to attend a follow-up appointment with your doctor about 2 weeks after a laparoscopy.
Here are some things you can do to ensure a smoother recovery:
Begin light activity as soon as you're able, in order to reduce your risk of blood clots.
Get more sleep than you normally do.
Wear loose-fitting clothes.
So when you are going for laparoscopy, at least the ultrasound That, CT scan, MRI scan should have been have been done . But in this case we do not find any test report regarding these tests. We do not find even the common TLC, DLC, Hb , Sugar Level, total Blood Count or any blood report . Whether it is not sufficient to prove that negligence has been caused from the very beginning. After piercing the body you came to know about the Mirrizi Syndrome.
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) (supra). 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.
of res ipsa loquitur came into force to benefit the plaintiff as he can use circumstantial evidence to establish negligence.
Consequently, it shifts the 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 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. 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 on the part of the defendant through the use of circumstantial evidence.
This means that while plaintiffs typically have to prove that the defendant, 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 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 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 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 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 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 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. 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 19391 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 negligence leads 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 , 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 1986 ( in short, the Act). These are some of the facts which make the present case extra ordinary.
The present complaint was filed by the complainant against the above-named opposite parties, namely, Dr. Sukumar Mukherjee, Dr. B. Haldar (Baidyanath Halder), Advanced Medicare and Research Institute Limited ( in short the AMRI Hospital ) and Dr. Balram Prasad and Dr.Abani Roy Chowdhury (physician) and Dr.KaushikNandy (plastic surgeon), the Directors of the AMRI Hospital and others claiming a total compensation of Rs. Rs.77,07,45,000/- under different heads alleging various acts of commission and omission on the part of the doctors and hospital amounting to negligence and deficiency in service. Complainant through his brother-in-law Malay Kumar Ganguly also filed criminal complaint against some of the doctors and the hospital under IPC.
The complaint was resisted by the doctors and the hospital on a variety of grounds thereby denying any medical negligence or deficiency in service on their part. Parties led voluminous documentary and oral evidence and testimonies of some of the witness were even recorded through video conferencing through a Local Commissioner. After a protracted trial and hearing and on consideration of the evidence and material so produced on record and taking note of the legal position governing the question of medical negligence, this Commission ( by a three Member Bench presided over by the then President) dismissed the complaint by an order dated 01.06.2006 holding as under:
In the result, we reiterate that Doctors or Surgeons do not undertake that they will positively cure a patient. There may be occasions beyond the control of the medical practitioner to cure the patients. From the record, it would be difficult to arrive at the conclusion that the injection Depo-Medrol prescribed by Dr. Mukherjee was of such excessive dose that it would amount to deficiency in service by him which was his clinical assessment.
Thereafter, with regard to the alleged deficiency in the treatment given to Mrs. Anuradha by Opposite Party Doctors 2, 3, 5 and 6, there is no substance. The contention against the hospital that it was not having Burns-Ward, and therefore, the deceased suffered is also without substance. Hence, this complaint is dismissed. There shall be no order as to costs.
Aggrieved by the dismissal of his complaint, the complainant filed Civil Appeal (No.1727 of 2007) in the Honble Supreme Court. It would appear that even before the said appeal was filed before the Hon'ble Supreme Court, the Supreme Court was seized of the matter in Criminal Appeal Nos.1191-94 of 2005 filed by Malay Kumar Ganguly, the complainant in the criminal complaint, against the Orders passed by the Calcutta High Court. Since the Criminal Appeals and the Civil Appeal filed by the complainant in the present complaint raised the same questions of fact and law, the Hon'ble Supreme Court heard all the appeals together and decided the same by means of a detailed judgment dated 07.8.2009. By the said order, the Apex Court dismissed the Criminal Appeals filed by Shri Malay Kumar Ganguly but allowed the Civil Appeal No. 1727 of 2007 filed by the complainant and set aside the order dated 01.6.2006 passed by this Commission dismissing the complaint and remanded the matter to this Commission for the limited purpose of determining the adequate compensation, which the complainant is entitled to receive from the subsisting opposite parties by observing as under:
So far as the judgment of the Commission is concerned, it was clearly wrong in opining that there was no negligence on the part of the Hospital or the doctors. We, are, however, of the opinion, keeping in view the fact that Dr.KaushikNandy has done whatever was possible to be done and his line of treatment meets with the treatment protocol of one of the experts viz. Prof. Jean Claude Roujeau although there may be otherwise difference of opinion, that he cannot be held to be guilty of negligence.
We remit the case back to the Commission only for the purpose of determination of the quantum of compensation. We, keeping in view the stand taken and conduct of AMRI and Dr. Mukherjee, direct that costs of Rs.5,00,000 and Rs.1,00,000 would be payable by AMRI and Dr. Mukherjee respectively.
We further direct that if any foreign experts are to be examined it shall be done only through video conferencing and at the cost of the respondents.
Summary In view of the foregoing discussion, we conclude as under:
The facts of this case viz. residence of the complainant and Anuradha (deceased) in USA and they working for gain in that country; Anuradha having been a victim of a rare and deadly disease Toxic Epidermal Necrolysis (TEN) when she was in India during April-May 1998 and could not be cured of the said disease despite her treatment at two superspeciality medical centres of Kolkata and Mumbai and the huge claim of compensation exceeding Rs.77 crores made by the complainant for the medical negligence in the treatment of Anuradha makes the present case somewhat extraordinary.
The findings given and observations made by the Supreme Court in its judgment dated 07.08.2009 are absolutely binding on this Commission not only as ratio decidendi but also as obiter dicta also, the judgment having been rendered by the Supreme Court in appeal against the earlier order passed by a three Member Bench of this Commission and, therefore, no attempt can be allowed to read down / dilute the findings and observations made by the Supreme Court because the Supreme Court has remitted the complaint to this Commission only for the purpose of determination of the quantum of compensation after recording the finding of medical negligence against the opposite parties and others.
The task entrusted to the Commission may appear to be simple but the facts of the present case and the voluminous evidence led on behalf of the complainant has made it somewhat arduous. Still difficult was the task of apprortionment of the liability to pay the awarded amount by the different opposite parties and perhaps it was for this reason that the Supreme Court has remitted the matter to this Commission.
Multiplier method provided under the 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 ofto Rs.1,55,60,000/-). From this amount, we must further deduct a sum of Rs.25,93,000/- which was payable by Dr. Abani Roy Chowdhury (deceased) or his Legal Representative as the complainant has forgone the claim against them.
In view of the peculiar facts and circumstances of the case and as a special case, we have awarded a sum of Rs. 5,00,000/- as cost of litigation in the present proceedings.
The above amount shall be paid by opposite parties no.1 to 4 to the complainant in the following manner:
(i) Dr. Sukumar Mukherjee-opposite party no.1 shall pay a sum of Rs.40,40,000/- (Rupees Forty Lakh Forty Thousand only) i.e. [Rs.38,90,000/- towards compensation and Rs.1,50,000/- as cost of litigation].
(ii) Dr. B. Haldar (Baidyanth Halder)-opposite party no.2 shall pay a sum of Rs.26,93,000/- (Rupees Twenty Six Lakh Ninety Three Thousand only) i.e. [Rs.25,93,000/- towards compensation and Rs.1,00,000/- as cost of litigation]
(iii) AMRI hospital-opposite party no.3 shall pay a sum of Rs.40,40,000/- (Rupees Forty Lakh Forty Thousand only ) i.e. [Rs.38,90,000/- towards compensation and Rs.1,50,000/- as cost of litigation .
(iv) Dr. Balram Prasad-opposite party no.4 shall pay a sum of Rs.26,93,000/- (Rupees Twenty Six Lakh Ninety Three Thousand only) i.e. [Rs.25,93,000/- towards compensation and Rs.1,00,000/- as cost of litigation] The opposite parties are directed to pay the aforesaid amounts to the complainant within a period of eight weeks from the date of this order, failing which the amount shall carry interest @ 12% p.a. w.e.f. the date of default.
Now in this case very much has been said about the consent taken by the appellant from the husband or son of the respondent. How the consent should be taken and what is the manner of taking consent.
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. The following paras highlight the essential principles of consent and the Indian law related to it along with some citations, so that medical practitioners are not only able to safeguard themselves against litigations and unnecessary harassment but can act rightfully.
Legally, two or more persons are said to consent when they agree upon the same thing in the same sense. 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. 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. Express written consent must be obtained for all major diagnostic, anaesthesia and surgical procedures as it is the most undisputable form of consent.
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. Exceptions to physician's duty to disclose include: (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.
Information imparted should enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment or not.
Consent should be procedure specific Consent given only for a diagnostic procedure, cannot be considered as consent for the therapeutic treatment. Consent given for a specific treatment procedure will not be valid for conducting some other procedure. In Samira Kohli versus Dr. Prabha Manchanda and Anr case, 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.
A common consent for diagnostic and operative procedures may be taken where they are contemplated.
Consent obtained during the course of surgery is not acceptable In Dr. Janaki S Kumar and Anr versus Mrs. Sarafunnisacase, 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, exception being an emergency situation where blood transfusion is needed to save life and consent cannot be attempted. In M. Chinnaiyan versus Sri. Gokulam Hospital and Anrcase, 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.
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.
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 AphraimJayanand Rathod case, 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.
Patient has the right to refuse treatment Competent patients have the legal and moral right to refuse treatment, even in life-threatening emergency situations. In such cases informed refusal must be obtained and documented, over the patient's witnessed signature. 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. If a patient demands discharge from hospital against medical advice, this should be recorded, and his signature obtained.
Unilaterally executed consents are void Consent signed only by the patient and not by the doctor is not valid.
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.
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.
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.
Consent for illegal procedures is invalid There can be no valid consent for operations or procedures which are illegal. Consent for an illegal act such as criminal abortion is invalid.
Consent is no defence in cases of professional negligence.
So from the above article it is clear that there should be consent for operation and there should be consent for giving anaesthesia. In the present case the consent taken was not in a proper form and manner showing the carelessness and negligence of the appellants. The guidelines should be referred by each and every doctor. The consent form is not according to rules or manual . Why did the consent of the patient not obtain? We have seen the consent form, half printed half handwritten. Nothing has been declared by the doctor regarding risk of the operation. In this consent form it has been written that the operation shall be performed by laparoscopic method and if necessary, in the interest of the patient, the open surgery can also be done. So in this consent form consent for both the operation, may be laparoscopic may be open surgery has already been taken by the husband of the patient. It is not disclosed as to why the consent is being taken from the husband and not directly from the patient.
Now we come about the atmosphere of the operation theatre. The operation theatre should be virus free, bacteria free, pathogens free .Whether in this case these precautions were taken by the operating team or not.
There is risk of surgical site infections. The operation theatre should be infection free, virus free, bacteria free. A report regarding surgical site infections shows the following:-
Surgical site infections (SSI) account for 14% to 17% of all hospital-acquired infections and 38% of nosocomial infections in surgical patients. SSI remain a substantial cause of morbidity and death, possibly because of the larger numbers of elderly surgical patients or those with a variety of chronic and immunocompromising conditions, and emergence of antibiotic-resistant microorganisms.
Factors causing surgical site infection are multifarious. Several studies have identified the main patient-related (endogenous risk factors) and procedure-related (external risk factors) factors that influence the risk of SSI. The rate of surgical wound infections is strongly influenced by operating theatre quality, too. A safe and salubrious operating theatre is an environment in which all sources of pollution and any micro-environmental alterations are kept strictly under control. This can be achieved only through careful planning, maintenance and periodic checks, as well as proper ongoing training for staff.
Many international scientific societies have produced guidelines regarding the environmental features of operating theatres (positive pressure, exchanges of filtered air per hour, air-conditioning systems with HEPA filters, etc.) and issued recommendations on healthcare-associated infection, including SSI, concerning surveillance methods, intervention to actively prevent SSI and approaches to monitoring the implementation of such strategies.
Therefore, the prevention of SSI requires a multidisciplinary approach and the commitment of all concerned, including that of those who are responsible for the design, layout and functioning of operating theatres.
Surgical care is an integral part of health care throughout the world, with an estimated 234 million operations performed annually . However, surgical care is also associated with a considerable risk of complications and death.
A study on the incidence and nature of in-hospital adverse events has shown that 1 in every 150 patients admitted to a hospital dies as a consequence of an adverse event and that almost two thirds of in-hospital events are associated with surgical care.
Surgical site infections (SSIs) remain one of the most common causes of serious surgical complications; they account for 14% to 17% of all hospital-acquired infections and 38% of nosocomial infections in surgical patients.
Each SSI is associated with approximately 7-10 additional postoperative hospital days and patients with an SSI have a 2-11 times higher risk of death, compared with operative patients without an SSI.
In a nested-cohort study carried out in a 750-bed tertiary- care hospital in North Carolina, US, elderly patients with SSIs due to Staphylococcus aureus were at increased risk of mortality (odds ratio - OR: 5.4), increased post-operative hospital days (2.5-fold increase) and increased hospital charges (2.0-fold increase) compared with controls (uninfected elderly patients).
The degree of surgical site contamination at the time of surgery influences the probability of surgical site infection.
According to the presence and degree of contamination, wounds can be classified as: clean wounds, clean-contaminated wounds, contaminated wounds, dirty or infected wounds.
Infection rates in the four surgical classifications have been published in many studies. Before antibiotic prophylaxis was routinely used, the rates were about 1-2% for clean wounds, 6-9% for clean-contaminated wounds, 13-20% for contaminated wounds and 40% for dirty wounds. As the level of bacterial burden is the most significant risk factor for SSIs, the use of prophylactic antibiotics has markedly reduced this risk, particularly with surgical procedures at high risk of infection, such as those involving the gastrointestinal tract.
However, SSI remain a substantial cause of morbidity and death, possibly because of the larger numbers of elderly surgical patients or those with a variety of chronic and immune compromising conditions, greater use of prosthetic implants and organ transplantation and emergence of antibiotic-resistant micro-organisms. Over the last decade, there has been little variation in the incidence and distribution of the pathogens isolated from infections; however, an important change in the microbiology of SSIs has been the increasing involvement of microorganisms that are resistant to antibiotic treatment.
Indeed, the number of SSIs caused by methicillin-resistant S. aureus (MRSA) has increased dramatically.
The pathogens isolated from infections differ, primarily depending on the type of surgical procedure. In clean surgical procedures, in which the gastrointestinal, gynecologic, and respiratory tracts have not been entered, Staphylococcus aureus from the patient's skin flora is the usual cause of infection. When mucous membranes or skin is incised, the exposed tissues are at risk of contamination by endogenous flora.
Approximately 20 to 30% of surgical-site infections are caused by S. aureus, and over half of these arise from the endogenous flora . Anderson et al. described a total of 1,010 SSIs occurred after 89,302 procedures in 26 hospitals; S. aureus was the organism most commonly isolated, recovered from 331 (37%) of SSIs. Of the 331 S. aureus SSIs, 175 (53%) were caused by MRSA, making MRSA the single most commonly isolated pathogen. Furthermore, recent studies have shown that reduced susceptibility to vancomycin and other glycopeptides, is emerging in different MRSA clones all over the world.
In other categories of surgical procedures, including clean-contaminated, contaminated, and dirty, the polymicrobial aerobic and anaerobic flora closely resembling the normal endogenous microflora of the surgically resected organ are the most frequently isolated pathogens.
Occasionally, the pathogenic microorganisms are acquired from an exogenous source, such as the operating theatre environment, surgical personnel and all tools, instruments, and materials brought to the sterile field during an operation.
The most commonly isolated organisms are Staphylococcus aureus, coagulase-negative staphylococci, Enterococcus spp. and Escherichia coli . Giacometti et al. studied 676 surgery patients with signs and symptoms indicative of wound infections, who presented over the course of 6 years. Bacterial pathogens were isolated from 614 individuals. A high preponderance of aerobic bacteria was observed. Among the common pathogens were staphylococcus aureus (28.2%), Pseudomonas aeruginosa (25.2%), Escherichia coli (7.8%), Staphylococcus epidermidis (7.1%) and Enterococcus faecalis (5.6%).
Other aspects of the complex strategy to minimize infection risk during surgical operations are procedural and behavioural factors that can also have a negative impact on the surgical outcome.
In general, the strategy for reducing intra-operative contamination involves a systemic and behavioural approach. As already seen, a systemic approach consists of improving the airflow system. A behavioural approach aims to reduce the number of airborne particles in the operating theatre through disciplinary measures. Simple and cheap measures include limiting the number of personnel in the operating theatre and restricting the movements of personnel in the operating theatre to a minimum, as it has been shown that increased activity facilitates the dispersion of bacteria.
In addition to the number and movements of personnel in the operating theatre, adverse surgical events may be due to poor communication, bad operative technique, malfunctioning or improperly used equipment, and cognitive errors due to stress or inattention, all compounded by resource and organizational problems. Communication in the operating suite is often poor and may contribute to adverse outcomes.
Knobben et al. found that, in patients undergoing orthopaedic implant surgery, adopting a range of measures in the operating theatre had a significantly positive effect on outcomes during the postoperative period. In that study, the measures adopted involved limiting needless activity, correct use of plenum (area of laminar flow), work-up in the preparation room rather than in the operating theatre, and the wearing of proper attire. These Authors observed that the combination of systemic and behavioural measures in the operating theatre led to a reduction in the incidence of intra-operative bacterial contamination and, consequently, of prolonged wound discharge and superficial surgical site infection. Moreover, after one-year follow-up, fewer deep periprosthetic infections were recorded. While it is difficult to determine the relative influence of each individual measure on the final result, the combination of all these parameters evidently creates the most effective weapon against infections. To maintain low bacterial counts, both the airflow system and behaviour have to be monitored by an infection committee. Both positive and negative feedback helps to maintain the reduction in bacterial dispersal.
Finally, it is important to emphasize that all personnel working in operating theatres, including surgeons, operating theatre assistants, anaesthesiologists and cleaning personnel, must follow hygiene protocols very strictly.
In 2008, the World Health Organization (WHO) published guidelines identifying multiple recommended practices (including a "Surgical Safety Checklist") to ensure the safety of surgical patients worldwide. The Surgical Safety Checklist comprises 19 items in three parts to be completed in a total of 3 min at key points in surgical procedures. The items include measures such as confirming patients' names and procedures, introducing theatre staff to patients, and ensuring that prophylactic antibiotics to prevent surgical-site infection are used appropriately.
Basically, the checklist includes three moments of formalized briefings and safety checks: a sign in before induction of anaesthesia, a time out before skin incision and a 'sign out' before the patient leaves the operating room.
Haynes and co-Authors found that introducing the WHO Surgical Safety Checklist into operating theatres in eight diverse hospitals was associated with marked improvements in surgical outcomes. Postoperative complication rates fell by 36% on average, and death rates were reduced to a similar degree. The overall rates of surgical-site infection and unplanned reoperation also declined significantly (p 0.001 and p = 0.04, respectively). In order to apply the checklist, surgical staff had to pause before the induction of anaesthesia, before skin incision and before the patient left the operating theatre; in previous studies, these team practices had already been associated with improved safety processes and attitudes and with a marked reduction in rates of complications and death. Checklist implementation encouraged the administration of antibiotics in the operating theatre rather than in the preoperative wards. The checklist provided additional oral confirmation of appropriate antibiotic use, increasing the adherence rate from 56 to 83%. This intervention alone has been shown to reduce the rate of surgical-site infection by 33 to 88%.
In conclusion, surgical site infection rates can be improved by acting upon various factors, from the surgical environment itself to procedural aspects and staff behaviour. Moreover, surveillance of SSIs is a wellestablished, well documented approach to lower the incidence of SSIs. Many hospitals still do not follow this recommendation despite its effectiveness.
Thus it is clear that the operation theatre should be infection free and no person should be allowed to come from outside and also proper ventilation, airflow et cetera should be maintained. In this case there is no register produced before this court showing the detailed report of preoperation, operation and postoperation consequences.
Now we discuss the present case and the admission made by the appellant himself in para three of his appeal. The appellant has admitted " ...and the son of the complainant was called in the operation theatre and shown the problem that the complainant has Mirrizy disease which cannot be treated without major operation of opening abdominal and will require major operation by conversation to open surgery and the complainant son agree for the open surgery of the complainant....."
Why did you call the patient's son in the operation theatre when the operation has already been commenced and you have made holes in the body of the patient for laparoscopy. You don't know how many pathogens/bacteria/viruses has been brought by the patient's son from outside into the operation theatre. This is extreme carelessness on the part of the operating team. When you have already taken consent for both type of operation what was the need to call the son of the patient in the operation theatre knowing that, that holes in the body already been made for the laparoscopy. The thing speaks themselves and here the maxim res ipsa loquitur came into existence. So you have shown your negligence and incompetency regarding operating a person.
Now we come to the discharge card issued by the appellants. Whether two discharge cards can be issued in the same date. In this case it has happened. There are two discharge cards in the present case. Why? It is better to scan these discharge cards here for ready reference. In one discharge card there is nothing about Mirizi syndrome. See the first discharge card. There is stamp of Sakhanand hospital and signature of Dr. S.D. Maurya. In diagnosis column simply it has been written "G.B.Stone". In the column of summary of treatment/operation done, it is written "CAPCHOLETHAISIS" then in the column of treatment on discharge, some medicines are prescribed.
Now let us the second discharge card of the same date has been no stamp of the hospital and no signature of the concerned Doctor It clearly shows manipulation after the operation and after the discharge of the patient at a stage when they came to know that they are going to sue the hospital and Dr . How we can judge this manipulation done by the appellants . The second discharge card has been constructed or made to save themselves. It is also very strange that this discharge card has not been filed by the appellant with appeal and on the date of hearing argument, when the respondent's counsel showed the first discharge card and thereafter this court directed to file both the discharge cards, thereafter this discharge card has been filed by the appellant. So this is another chain of circumstances which shows the negligence and deficiency of service on the part of the appellant.
Postoperative patients must be monitored and assessed closely for any deterioration in condition and the relevant postoperative care plan or pathway must be implemented.
The NCEPOD (2011) report found that patients whose condition was deteriorating were not always identified and referred for a higher level of care. Patients should be made ascomfortable as possible before postoperative checks are performed.
Postoperative patients are at risk of clinical deterioration, and it is vital that this is minimised. Knowledge and understanding of the key areas of risk and local policies will help reduce potential problems (National Patient Safety Agency, 2007; National Institute for Health and Clinical Excellence, 2007).
Track and trigger or early warning systems are widely used in the UK to identify deteriorating patients. These have been adapted by trusts for adults and children and are based on the patient's pulse and respiratory rate, systolic blood pressure, temperature and level of consciousness. Additional monitoring may include pain assessment, capillary refill time, percentage of oxygen administered, oxygen saturation, central venous pressure, infusion rates and hourly urine output.
The National Early Warning Score (NEWS) was developed by a working party to provide a national standard for assessing, monitoring and tracking acutely and critically ill patients (not for use with children under 16 years or in pregnancy); the intention was that trusts would use it to replace their locally adapted early warning systems (Royal College of Physicians, 2012). Like other early warning systems, NEWS has six physiological parameters:
Respiratory rate;
Oxygen saturation;
Temperature;
Systolic blood pressure;
Pulse rate;
Level of consciousness (this will be impaired in patients who have had recent sedation or are receiving opioid analgesia, which should be taken into consideration in assessment).
The system also includes a weighting score of two, which is added if the patient is receiving supplemental oxygen via a mask or nasal cannulas.
When assessing the postoperative patient using NEWS, it is vital that the patient is observed for signs of haemorrhage, shock, sepsis and the effects of analgesia and anaesthetic. Patients receiving intravenous opiates are at risk of their vital signs and consciousness levels being compromised if the rate of the infusion is too high. It is therefore imperative that the patient's pain control is managed well, initially by the anaesthetist and then the ward staff and pain team or anaesthetist, to ensure that the patient has adequate analgesia but is alert enough to be able to communicate and cooperate with clinical staff in the postoperative period.
Many trusts have yet to implement NEWS, although it is beginning to be taught in pre-registration nursing programmes. Student nurses frequently perform postoperative observations under the supervision of a nurse; it is reassuring that they receive some insight and education as recommended by NCEPOD (2011).
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.
In this case there is lack of proper post-operative care by the appellants. For them the patient was only a body to be operated on and not a human being. So many negligence and carelessness are shown in this case and to avoid the liability they also created discharge card later on which is a forged one and not prepared just after the discharge of the patient but prepared later on to save their skins. Such type of carelessness and negligence cannot be expected from such a qualified doctor and hospital. The future course of treatment was an outcome of the first operation done by the appellant so they are responsible to compensate for all the future expenses incurred by the patient or her family members. We have seen the judgment of the learned District Forum who has held the appellants liable for negligence. In the present case the compensation sought by the respondent was very little. Whatever has been prayed by the respondent and whatever granted by the learned Forum and the discussion made above we are of the view that the said impugned judgement needs no interference by this court and the present appeal is liable to be dismissed cost.
ORDER The appeal is dismissed with cost. The judgment and order dated 14.11.2018 passed by the learned District Consumer Forum-II, Agra in complaint case no 219/2012, Madhuri Sharma Vs. Dr. S. D. Maurya & Ors. is upheld.
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.
(Vikas Saxena) (Rajendra Singh) Member Presiding Member Judgment dated/typed signed by us and pronounced in the open court. Consign to record. (Vikas Saxena) (Rajendra Singh) Member Presiding Member Jafri, PA II Court 2 [HON'BLE MR. Rajendra Singh] PRESIDING MEMBER [HON'BLE MR. Vikas Saxena] JUDICIAL MEMBER