Hirubhai Nagindas v. Dr. Rakshit Patel, First Appeal No. 199 of 2016 decided by the National Consumer Disputes Redressal Commission, New Delhi on 06 Aug 2019
Facts: Complainant was suffering from ‘Hernia’ and approached the Hospital, was diagnosed as a case of ‘Incision Hernia’ and advised Surgery which was conducted on 14th December, 2008 1:30 p.m. under anaesthesia administered by one Dr. Gopal Parekh. It is averred by the Complainant that the Doctor took 7 hours to perform the Surgery and at about 10 p.m. the Complainant complained about pain in his legs, but the staff informed him that it was pain on account of anaesthesia and as there is no pain at the site of operation, there was no reason to worry. On the next day, i.e. on 15th December, 2000 the Complainant was shifted to a special room but even then the pain in his leg did not subside. It is averred that despite several complaints about the pain in his legs, the treating Doctor and the hospital staff did not care to address the issue. When the doctor advised the Complainants to stand on his legs, the pain aggravated and the Complainant felt too weak to even stand in an appropriate manner. There was unusual burning sensation in his legs. On 16th December, 2000 at 9:30 a.m. the Complainant noticed black patches and the burning sensation also aggravated. It is believed that on 17th December, 2000, when the pain become unbearable he once again complained to the treating Doctor and to the staff and it was only on the fourth day of the surgery Dr. Vijay Thakur, the Vascular Surgeon was called for advice. On careful examination, the Vascular Surgeon advised the Complainant to be shifted to Bhailal Amin General Hospital, Vadodara for better management and hence on the same day the Complainant was shifted. At this Hospital, it was diagnosed that gangrene had developed in the Complainant’s legs and both the legs were amputated below the knee on 21st December, 2000 and subsequently on 23rd December, 2000. It is averred that the civil surgeon on 16th August 2001 declared the Complainant physical handicapped 100% disabled on both the lower legs. It is averred that no proper informed consent was taken and that the opinion of vascular surgeon was obtained belatedly on the fourth day and the Complainant’s pain and the burning sensation in the legs were overlooked by the treating Doctor and the staff which led to the amputation of the Complainant’s leg below the knee and for this aspect of negligence the Complainant approached the State Commission seeking an amount of 24,39,809.29″ also prayed for an amount of Rs.22,50,000/- under loss of income.
Defense: That the Complainant was a known case of Diabetes Mellitus; that he had undergone Vascular Surgery Bypass Surgery 4 years earlier; that he is a chain smoker; that it was only on account of continuous coughing that he developed ‘Incision Hernia’; that the Complainant visited the treating Doctor in the month of June / July and that the Doctor has advised the Complainant to quit smoking and lose weight but in spite of all these complications the Complainant insisted on ‘Incision Hernia’. Complication of Incision Hernia was on account of Aortic Bypass surgery at Bombay and the vessel was totally congested and at the relevant time the surgeon put Aorto Iliac Graft for smooth circulation of the blood to the lower limbs of the Complainant. It was only on account of the patient’s history and his smoking habits coupled with Diabetes that fresh blocks developed in the Aorto Iliac Graft which the, doctors were never informed by the complainant. Doctor had taken all necessary care and caution during the operation and also post-operatively and having understood the seriousness of the situation, they requested the assistance of Dr. Vijay Thakur a Vascular Surgeon and thereafter he was advised to be shifted to Bhailal Amin Hospital for better management, Complainant did not produce the Medical Treatment Record of the said Hospital. Dr. Gopal Parekh administered Anaesthesia, who was an eminent Anesthetist and Spinal Cord General Anaesthesia has no connection or relation with Aorto Iliac Graft. It was averred that the blood circulation to the lower limb reduce further probably on account of stress due to Incision Hernia operation and the patient’s history. Staff of the hospital rendered necessary post-operative treatment and it was only on account of ‘ill luck’ of the Complainant and on account of his original disease that fresh block had developed. State Commission has observed that there was no negligence on behalf of treating Doctor and the Hospital except for not taking ‘Informed Consent’.
Observations: A brief perusal of the hospital treatment record shows that the patient was operated for Incision Hernia on 14th December, 2000, the preoperative instructions show that consent was taken, CBC was advised and the patient’s history of Vascular Bypass Surgery was clearly noted. The Complainant had no history of hypertension or tuberculosis, the blood pressure and pulse rate was normal, the random blood sugar which was taken was also normal. It was also noted that the patient was a known Diabetic and was on relevant medication. The operation was performed at 2:30 p.m. and lasted till 6:30 p.m. as per the operation notes. The patient was put on insulin and other antibiotics. The random blood sugar was tested at 8:00 p.m. was 91 mg and no insulin was advised. Next day on 15th December, 2000 the medical record show that there was mild pain in the abdomen the dressing was done and there was no soakage at 8:30 a.m., on the same day the patient was seen by one Dr. Lata and also by the duty doctor wherein he had mentioned that the patient had complained of pain. On the next day morning once again burning sensation in the left feet was recorded by the duty doctor and Doppler of the left Limb was advised. At 12 noon once again the patient was seen by the duty doctor, Dr Lata who mentioned at 4:00 p.m. that the Complainant is having burning sensation in both the limbs RBS was noted as 81 MG. Then on 16th December, 2000 once again there was noting of burning pain in the feet. Doppler, LT of the limbs was advised and the treatment record shows that there was continuous complaint of pain in the leg, at 7:30 a.m., at 3:30 p.m. and also in the evening the duty doctor had noted Dorsalis Pedis, weak of palpation. Again on 16th December, 2000 at 8:00 p.m. it was noted that the Complainant had burning pain in both the limbs which continued. Even on 17th December, 2008 at 7:30 a.m. the dressing was done and the drain was removed and antibiotics were given thereafter at 9:00 a.m. it was noted that both the feet has Cyanosis with local temperature down Dorsalis Pedis week and the same was again noted at 4:15 p.m. The above operation notes clearly records that the Complainant was continuously complaining of pain and burning sensation in his legs right from the date of surgery till 17th December 2013 the fourth post-operative day.
Expert opinion: Dr. P N Tiwari, MBBS and LLB, who has given his opinion as follows:
Improper taking of patient/ complainant’s detail history where two major factor was present like-
-past vascular operation
– was on anti lipid medicine.
Whether the said hospital/ respondent no. 2 was fully equipped to carry out such major operation.
When complainant was on antilipid medicine and obese, why physician was not taken in confidence nor medicines was given for cough.
Why decision to keep spinal epidural catheter was taken in this operation?
Anaesthetist was not aware that thiopentone (pentothal) causes hypotension which is dangerous in such patients as lead to detaching of thrombus from the arteries and veins.
In the discharge card of Bhailal Amin Gen. Hospital, it has mentioned that gangrene developed up to the ankle after operation, (which was done on 18/12/2000).
Ground of Opinion based on File facts:
Due to hurry in doing the said operation, negligence was done by Respondent no. 1 & Anaesthetist Dr. Gopal Parekh as:-
Not taking history properly and in detail there by missed two important factors of case.
Anesthetist was also not careful in doing his job by giving detail pre-anesthetic orders and also the side effects of Pantothal and repeated dose of succinylcholine which causes bradycardia and hypotension leading to blockage of veins by the thrombus and ischemia. If not treated in time, it causes gangrene of that part. Negligence is seen in the work process of Surgeon/ respondent no. 1 as he could not judge the seriousness of symptoms of pain and ischemia in the left leg and then in both the legs which led the amputation of both legs.” The Hospital treatment record which shows continuous Complaint of pain in the legs, coupled with the medical opinion given by the expert with the Complainant’s history of Bypass Vascular Operation and a known diabetic proper pre-investigative tests was not taken, additionally, it is clearly stated in the discharge card of Bhailal Amin General Hospital that gangrene has developed on the ankle postoperatively. The vascular surgeon Dr Vijay Thakur has also given a certificate which reads as follows page:
“To whomsoever it may concern This is to certify that Shri Hirenbhai N. Sheth M/63 years has undergone and emergency operation Aorta Bifemenal Bypass Bilat. Fasciotomies Bilat Below knee amputation during Dec. 2000 as a limb salvage procedure. He had undergone Aorte Bifemoral Bypass operation in March 1996. He developed this problem in N/c leg ischemia during immediate post op period. Following an operation for incisional hernia operation.”
The stand of the treating Doctor in his Written Version ‘that fresh blocks developed in Aorta Iliac Graft was not brought to their notice’, cannot be accepted. It is the duty of the treating Doctor to ascertain the complete condition of the Patient through investigation tests, prior to the Surgery, specially in the light of his admitted history of Diabetes and prior Vascular Surgery.
Held: The treating Doctor and the Hospital are jointly and severally liable to pay to the Complainant an amount of `5,00,000/.
This amount is being awarded keeping in view that the Complainant is having a disability certificate of hundred percent disability and his legs were amputated below the knee and being a labour consultant he was earning an amount of `8,000/- per month and he was 58 years old at the time of amputation of his legs, with a general life expectancy of 75 years and also the pain and suffering which he has suffered on account of amputation and the disability. For all these reasons, we find it a fit case to award a lump sum amount of `5,00,000/- to be paid to the Complainant within a period of four weeks from the date of receipt of a copy of this order failing which, this amount shall attract interest @ 9% per annum from the date of filing of the Complaint till the date of realization. We also award costs of `25,000/-.