While upholding an order passed by the Maharashtra state consumer disputes redressal commission, the national consumer disputes redressal commission (NCDRC) directed Akola-based Thirthankar Superspeciality Hospital, Dr Prashant Mulawkar and Dr Rajendra Sonone (anaesthetist) to pay a compensation of Rs20 lakh with an interest of 9%pa (per annum) to the father of the patient, who died after a high-risk operation.
In
an rder lasot week, the NCDRC bench of Dr Sadhna Shanker (presiding member) says, "We find that the appellants (Thirthankar Superspeciality Hospital and the two doctors) have not been able to prove that there was proper care and attention during the post-operative period and the findings of the state commission in this case suffers from no illegality or infirmity warranting any interference."
The case is related to Huma, the daughter of Akola-based Manzoor Hussain Nadeem. Huma, the 27-year-old daughter of Mr Nadeem, had only one right-side kidney functioning and her left-side kidney was not functioning since birth, and she was leading a normal life. She was suffering from a fever and was treated by Dr SM Agarwal. After checking the reports of various tests, Dr Agarwal advised her to consult Dr Mulawkar from Thirthankar Superspeciality Hospital. After examining Huma and considering all the reports, Dr Mulawkar stated that her right side kidney was affected due to a problem with the urinary bladder and prescribed some medicines from time to time.
Huma did not feel any relief, so she went to Dr Mulawkar again on 14 August 2010. At that time, on pathological tests, when it was found that her serum creatinine was slightly more than the normal limit, Dr Mulawkar advised her to undergo a minor operation of the right side kidney called as stenting of the kidney. Dr Mulawkar informed Mr Nadeem and his wife that the procedure was not complicated and the surgery was risk-free and there would be no danger to the life of Huma and she would be discharged from the hospital after the operation in a day or two.
On 16 August 2010, Huma was admitted to Thirthankar Superspeciality Hospital for the operation. At about 11am, she was taken to the operation theatre. Dr Sonone administered anaesthesia to the patient before the operation and the operation was conducted successfully. After the operation, Huma was taken to the post-operation care room to keep her under observation.
However, in his complaint, Mr Nadeem, the father of Huma, alleged that in the post-operative care room, no competent doctor kept watch on her physical condition. "Also, from 2.30pm till 7pm nobody came to record her blood pressure, pulse rate, respiration, or temperature after every hour and Huma was not placed on any monitoring machine after the operation and she was not breathing normally."
Dr Zuber Nadeem, a Unani practitioner and brother of Huma, examined her pulse and found that her pulse rate was not normal. He then tried to contact Dr Mulawkar and Dr Sonone, but they did not come to the post-operative care room to see Huma's condition.
When nobody came to see Huma, Dr Nadeem called Dr Agarwal, who came to the hospital at 7.45pm, examined the patient, and found that her blood pressure was not stable and her pulse rate was very high. On seeing that the patient's condition was deteriorating, Dr Agarwal called another expert, Dr Pradeep Chandak in the hospital. Since Dr Mulawkar and Dr Sonone did not come out of the operation theatre to see the deteriorating condition of Huma, Mr Nadeem says Dr Agarwal advised him to take his daughter to Shyamdip Hospital and Critical Care Centre for CT scan.
At 9pm on 16 August 2010, Huma was admitted to Shyamdip Hospital in a serious condition and, despite the treatment, she died at about 1.30am in the night.
Mr Nadeem alleged that during the operation, Huma’s blood pressure was not normal as per medical standards and, as the proper antibiotics were not given either during the operation or after the operation to prevent septicaemia, septicaemia developed within a few hours after the operation.
He then filed a complaint before the state commission seeking compensation of Rs25 lakh from the Hospital and two doctors for causing the death of his daughter by negligently discharging their professional duties.
Thirthankar Superspeciality Hospital, Dr Mulawkar and Dr Sonone contested the complaint by filing written statements. They submitted that the patient had chronic urinary tract infection coupled with the failure of body defence mechanism and the procedure of stent implantation is a complicated one because the patient had only one functional kidney and not a minor procedure and that the patient had a high risk and all these details had been explained to Mr Nadeem and Dr Zuber, the brother of the patient.
The counsel for Mr Nadeem submitted that this is a case of negligence in post-operative care. He further pointed out that since Huma, the patient was, admittedly having only one kidney, obese and had thyroid and when she was admitted, she had severe urinary traction infection, and she was a high-risk patient, a high standard of medical care was required in her case.
While partly allowing the complaint, the state commission directed Thirthankar Superspeciality Hospital, Dr Mulawkar and Dr Sonone to pay jointly and severally a compensation of Rs20 lakh with interest at the rate of 9%pa from 5 January 2012 till payment, and a cost of Rs10,000 to Mr Nadeem.
Aggrieved by the order, Thirthankar Hospital and the two doctors approached NCDRC.
During the hearing, they stated that Huma, the patient, developed severe metabolic acidosis and, at about 12.30am (midnight), she went into cardiac arrest and died. All best efforts to save the patient were taken, and there was no negligence on the part of the hospital and doctors, and the complaint is liable to be dismissed, the counsel submitted.
The counsel for Mr Nadeem, however, pointed out that the affidavits of two experts, Dr Agarwal and Shrirang Samadhan Lawale, were not filed before the state commission; therefore, the same cannot be permitted to be filed at the appellate stage and the appeal has to be decided only based on the pleadings and proof filed before the state commission.
He also contended that no affidavit of the treating doctor has been filed in this case. He further submitted that if Dr Sonone had examined the patient in the recovery room from time to time after the surgery and had prepared the notes in the operation theatre, what prevented him from writing his observation on the bed continuation sheet and since the appellants filed the documents at a belated stage, i.e. written statement on 18 June 2012, affidavit and evidence of Dr Mulawkar on 12 October 2015 and the notes prepared by Dr Sonone had been filed on record on 2 August 2016, after almost five years and six months, no reliance can be placed on these documents.
He further submitted that the Hospital claimed that it is a super speciality hospital with facilities to treat all kinds of patients but lacks basic infrastructure. "There are no intensive care unit and CT Scan machines and properly trained staff at the hospital. The recovery room where post-operative patients are kept has no monitoring system available to monitor the patient."
After hearing both parties and perusing documents available on record, NCDRC observed that the central point for consideration is whether there was medical negligence on the part of the Hospital and the two doctors during the post-operative care.
The NCDRC bench of Dr Shanker noted that Huma, the patient, had only one kidney and a severe urinary tract infection. "It is clear that there was no Intensive care or infection disease specialist available during the post-operative care as per the guidelines. Further, it is admitted that there was no ICU facility, and as the surgery was high-risk, the appellant ought not to have proceeded to conduct the operation, ignoring the risk involved."
"Since the affidavits of electronic expert, Dr Agarwal and Mr Lawale are filed at the appellate stage, no reliance can be placed on them," the bench says.
So far as the point of development of septicaemia is concerned, Dr Shanker says Thirthankar Hospital and the two doctors failed to establish that the patient was suffering from septicaemia before conducting the operation and it came to the knowledge of Mr Nadeem through the death certificate.
"Even if it is presumed that the patient was suffering from septicaemia, the appellants ought not to conduct the operation even when the basic facilities like an intensive care unit were not available in the hospital. The appellants have also brought no evidence on record to show that either they prescribed or ensured that all the necessary pre-operative tests were done on the high-risk patient prior to surgery to see that the patient was fit for surgery," NCDRC says.
The bench also referred to the enquiry committee report sent by the Government Medical College and Superspeciality Hospital at Nagpur to Akola police station vide letter dated 12 September 2011. The report stated, "The details of the patient's pre-operative check-up reports have not been made available in the papers received so it is not possible to give an opinion about whether the condition of the patient was suitable for surgery. The surgeon and anaesthetist examine the patient and take a decision as to whether the condition of the patient is suitable for surgery or not."
"This is clearly a lack of due care and amounts to deficiency in service," NCDRC says.
As regards the point that no competent doctor kept watch in the post-operative care room is concerned, Dr Shaker from NCDRC noted that Thirthankar Hospital and the two doctors filed the documents at the belated stage showing that the patient was attended to from time to time.
"Had the documents been available with the appellants, the said documents should have been filed at the appropriate time before the state commission. It appears that these documents are an afterthought. No concrete evidence has been produced by the appellants to prove that the appellants attended the patient for a long period of four and a half hours after her operation. Moreover, at one place, the appellants averred that Dr Sonone and Dr Mulawkar attended the patient at 2.30pm while at another place, it was mentioned that assistant Suruchi attended the patient at 2.30pm. As the documents are contradictory to each other, the documents do not appear to be authentic. It is apparent that the patient was not attended from 2.30pm to 7.00pm," NCDRC says.
While dismissing the appeal, the bench directed Thirthankar Superspeciality Hospital, Dr Mulawkar and Dr Sonone to pay the compensation as awarded by the state commission.
(First Appeal No1951 of 2017 Date: 23 November 2023)
