PER DR. S.M. KANTIKAR, MEMBER
- Mrs. Khela Bhattacharjee (herein referred as “Patient”), a school teacher aged about 58 years(since deceased), is the wife of the complainant Dr. Krishna Mohan Bhattacharjee. She was in good health, when all of a sudden, on 28.03.1998, she had severe headache and convulsions for which she was admitted to AMRI Hospital, Kolkata. After CT scan, she was diagnosed as brain tumor in right frontoparietal region (meningioma), and advised surgical removal of brain tumor. The doctors at AMRI opined that after operation she would be hale and hearty. For better treatment and to avoid risk at Kolkata, the complainant took his wife to Bombay Hospital Medical Research Center, Mumbai (Opposite Party No-1) on 3.4.1998. She was admitted under care of Neurosurgeon, Dr. S. N. Bhagwati, (Opposite Party No-2) who perused patient’s CT scan, Pathology lab and other reports. The complainant alleged that, since OP-2 Dr. S. N. Bhagwati was scheduled to go to Dubai, therefore, insisted for patient’s operation, on 04.04.1998, but, since that day was Saturday, the complainant intended not to undergo operation on Saturday; hence the operation was fixed on 05.04.1998. Complainant alleged that prior to the operation, no pathological and radiological tests were performed on 05.04.1998, and OP-2 hurriedly performed three consecutive surgeries upon the patient, one after another, for removal of meningioma, as the OP-2 was scheduled to go to Dubai. The patient became comatose after surgery and was put on ventilator. Ultimately, she died, on 9.5.1998. Therefore, on 27/04/2000, the complainant filed this complaint alleging medical negligence against OPs and prayed for total compensation of Rs.25,00,000/-.
- The opposite parties filed their respective replies. The OP-1 submitted that the hospital had provided the best of its infrastructure, qualified staff and facilities to the patient. The Complainant has failed to disclose any cause of action against the hospital, made lame and baseless allegations on the hospital authorities for not providing the reasons for the three consecutive surgeries. Further submitted that the hospital authorities always cooperated and kept the Complainant well informed about the health status and treatment of the patient. Therefore, there was no deficiency in service or negligence on the part of the hospital.
- OP-2, Dr. S. N. Bhagwati, in the written version, submitted that the patient was admitted to Bombay Hospital, on 3.4.1998 at about 11.47 am. The patient had rowdy abnormal behavior and right sided headache of six months’ duration. Clinically, her blood pressure was 130/80 mm Hg, pulse 92/minute, no history of Diabetes, Hypertension, tuberculosis, or syphilis, was present. Her higher functions tone, power, reflexes were within normal limit. Papiloedema was present. On 04.04.1998, at 15.20 p.m. a radiological test/ CT, Digital Subtraction Angiography (DSA) was carried out by Dr. D. B. Modi. During this procedure, CT scan revealed a large well defined mass, 4.8x6.5 cm in (R) frontoparietal region, compressing adjacent cerebral cortex and lateral ventricle with midline shift. DSA showed that she had right parietal meningioma supplied by anterior division of middle meningeal artery. This artery was embolised. The patient was comfortable in the evening after DSA test. On 5.4.1998, after taking informed consent of her husband, the patient was operated under general anesthesia (GA) for frontoparietal craniotomy with total excision of meningioma. It was done by OP-2, with a team of doctors, consisting of Dr. Shailendra, Dr. Rishi and Dr. Anand. There was good haemostasis, and then only the dural flap was closed. Good homeostasis was obtained using surgical and hydrogen peroxide. Thereafter, at 1.30 pm, patient was kept in the postoperative ICU (Recovery Room), under observation. The patient was given IV mannitol, but she did not show signs of improvement, within an hour, hence re-exploration (2nd operation) was carried out, at around 3.00 pm. A blood clot was detected and it was evacuated, with due care. The patient was kept on ventilator, after second surgery. Again, deterioration was noted as the skin flap kept on bulging within less than an hour, after 2nd surgery was over, even though there was good haemostasis. There was no evidence of raised ICT at the end of 1st and 2nd surgery, therefore, it was not necessary to remove the bone flap. The patient continued to be on a ventilator. Thereafter, Intracranial Pressure (ICT) became high, thus the bone flap was removed, (3rd surgery). Unfortunately, she developed local Disseminated Intravascular Coagulation (DIC) which was responsible for bleeding from operation site, hence patient became unconscious (coma) for nearly a month. She did not show improvement except opening her eyes a little, though, OP-2 further submitted that subsequently, the patient developed multiple complications which resulted into her death.
- We have heard the learned counsel for both the parties. Counsel for the complainant Mr. Abhinash K.Mishra vehemently argued that;
- No CT scan was conducted by the OP on the patient before carrying out the surgery.
- No tests like BT,CT were conducted prior to the surgery
- No sufficient units of blood were kept at the time of operation:
- Due to negligence by the Opposite Parties the first operation wasn’t carried out in proper manner, due to which consecutive operations were performed.
The Counsel further submitted that the OP-2 performed surgery without any blood investigations, therefore, after operation, patient suffered bleeding, which was the cause of Coma and death.
Arguments on behalf of OPs: Mr. Arvind Nayar, Learned counsel for OP-1 argued the matter and submitted that, Dr. S. N. Bhagwati, OP-2 is now no more. Therefore, none appeared on behalf of OP-2. Hence, we relied upon the affidavit and written arguments available on record, filed by OP-2. The counsel for OP-1 submitted that, the complaint is not maintainable against the hospital which is managed by a trust under Bombay Hospital Medical Research Centre. The OP-1 is a Charitable Trust and does not employ doctors as its employees. The doctors are consultants. The Complainant ought to have impleaded the trustees of this OP, thus, the complaint is bad for non-joinder of necessary parties. The OP-2 was a consultant at OP-1 hospital, he was not employed or paid any salary. Therefore, hospital should not be made liable vicariously, if the Commission finds any negligence committed by OP-2. In his support counsel for OP-1, relied upon a case titled Venkatesh Iyer V/S Bombay Hospital Trust and Others. 1998 (3) Bom C R 503, wherein the Hon’ble Court held that hospital cannot be held guilty of medical negligence, in absence of any cause of action against the hospital, and in absence of nexus leading to “joint and several liability” between the doctor and the Hospital.
- On perusal of written arguments filed by OP-2, it reveals that necessary tests were performed as per medical norms for surgery, as well as post operative care of the patient was properly taken. The condition of patient at the time of operation was critical and it was necessary to remove the brain tumor urgently. Therefore, on very next day operation was planned. However, the complainant was superstitious and did not want to be operated on 4th April, 1998 as, it was black Saturday. Therefore, she was operated on 5th April, 1998, after informed consent and complainant was made well aware of the nature of disease and consequences during the operation. She was treated with all due diligence and care, therefore allegation as regards to the hastiness in conducting the operation or carrying out the tests, is wrong and without any basis. Therefore, this complaint should be dismissed.
Findings and Reasons:
- The complainant alleged that the OP-2 was in a hurry to go to Dubai. Therefore, we have perused the copy of passport of OP-2, the relevant hospital records, and operation theatre register. We have noted that OP-2 was in India and operated patients between 3rd to 11th April 1998, also the passport details clearly show that, OP-2 had not left for Dubai till 20.04.1998. Hence, it is proved that, it was a false allegation.
- After admission to OP hospital, the complainant suppressed the previous health condition of the patient, not produced any details of treatment taken, thus, it is Suppressio Veri and Suggestio Falsi. The OP-2 admitted that, BT & CT was not done pre-operatively because the patient never had any history of undue or excessive bleeding from any of the natural orifices of the body nor was there any bleeding from the puncture site of DSA. Hence, these tests have no relevance in this case. The local DIC was an unfortunate medical complication, which occurs in very rare case and the survival rate is also low.
- Hospital records reveal that pathological investigations carried out on 6/4/1998,i.e next day of surgery, there was prolonged bleeding time (BT), Clotting time(CT), Prothrombin time(PT) and Partial Thromboplastin time (APTT), and Fibrinogen Degradation Product (FDP), positive. According to OP-2, the bleeding from operation site was due to local DIC, probably the surgery for brain tumor initiated DIC.
Experts did not touch the heart of Issue:
- This Commission, by its order, dated 30/1/2001, directed the Maharashtra Medical Council, Mumbai (MMC) to carryout investigation in this case and submit its report. The MMC submitted the report dated 6/4/2001, which took opinion from Dr. D. A. Palande (Neurosurgeon), Professor of Neurosurgery at Grant Medical College and J. J. Group of Hospitals, Mumbai, who opined that the treatment given to the patient was proper and timely. Thus the OP relied upon the case Ramesh Chandra Aggarwal vs. Regence Hospital Ltd. & Ors. (2009) 9 SCC 709, wherein the Hon’ble Supreme Court held that:
The OP-2 placed on record, copy of report issued by Dr. Anil P. Karapurkar, a Neurosurgeon from HN Hospital, Mumbai, which explains about the Radiology of menigioma, and embolisation etc.
We are not satisfied with both the reports, because both have not touched the heart of issue, i.e “deficiencies in Preoperative Workup of the Patient”
No Negligence tO Certain Extent:
- Now, it is important to ascertain, whether, there were lapses in post-operative care by OPs? According to OP-2, brain tumor (meningioma) is a very serious condition; there was bleeding, formation of hematoma, which was removed by the OP 2 and the bony skull flap was also removed. The case being a complicated one further complications occurred during treatment, which to the best of doctors and surgeons, cannot be predicted or pre-determined, thus the doctor cannot be held negligent. There is nothing like absolute precision or guarantee cure, because every doctor and surgeon, using his best possible skill, takes utmost care. The OP submitted that the allegations made are an afterthought. It is also noted that OP-2 was a senior most Neurosurgeon, working with OP 1/hospital for last 38 years. He had vast experience in the field of neurology. It is also important to note from the blood bank register that, the OPs have kept in stock, three bottles of blood, ready. On perusal of medical record, the patient was transfused four units of FFP (Fresh Frozen Plasm) on 6.4.1998 and one unit of Packed Red Cells on 8.4.1998. Thereafter, patient’s follow up was maintained in ICU by proper medication and higher antibiotics. In our opinion, we do not see any deviation of practice committed by the OP-2 during surgery and after surgery. Hence, we accept, both the reports (as supra para 9) for a limited extent of the Surgical treatment only. The reports did not speak about the “Preoperative Workup of the patient”.
The Actual Negligence:-
- Still, the main question as to why, OP failed to perform “Preoperative Workup of the patient”, and Why the blood tests to rule out bleeding tendencies in the patient were not conducted, have not been proved. It was a planned Neuro surgery for Meningioma (a vascular tumour), it will be performed by team of doctors including anesthetist. It is most important for an Anesthetist to checkup patient’s fitness, conduct all hematological and biochemical tests, ECG etc. The OP-2 admitted that the BT, CT and other tests for coagulation/bleeding were not performed. The Bombay Hospital is one of the reputed referral Super specialty hospital in the country, therefore, same standard of care is expected to be given to each patient. Thus, we are of considered view that it was an act of omission, it was not a reasonable care, when the meningioma was known to be a notorious vascular tumor. According to OP-2, there wasn’t any difference in the prognosis, if these tests (BT & CT) have been done earlier, as she suffered more from a local DIC rather than blood dyscrasia. We are not convinced by those “ifs” and “buts” submissions. This to be considered as a negligence, by the team of doctors, including the OP-2. Consequently, it was the vicarious liability on the hospital-OP-1. It is pertinent to note that the OP-2 was associated with OP-1 for last 38 years as a Neurosurgeon. Even otherwise, the patient was a consumer of OP-1, the team of doctors is from OP-1 hospital, and therefore, OP-1 cannot shirk off from its vicarious liability on just technicalities. Hospital must be having Standard Operating Protocols, which were not followed in this case, hence, it was ‘Hospital Negligence’ and also to some extent, a ‘professional negligence’.
- The OP-2 made a reference to medical literature, that the DIC is an acquired pathological state due to presence of more than physiological amount of thrombin in systemic circulation. DIC can be both an explosive and the life threatening bleeding disorder. It is most frequently associated with obstetric catastrophes malignancy, massive trauma including surgical incision and bacterial sepsis. Most patients with DIC have skin and mucous membrane bleeding and hemorrhage from surgical incision or venepuncture site. The laboratory manifestation includes thrombocytopenia, prolonged PT, PTT, and elevated FDP. DIC requires emergency treatment, which includes:
- An attempt to correct any reversible cause of DIC
- Measure to control either bleeding of thrombosis
- Patient with bleeding is given fresh frozen plasma to replace depleted clotting factors.
- Platelet concentrate to correct thrombocytopenia
We may accept that, the patient suffered DIC, but it can be prevented, if proper assessment of patient was done prior to surgery.
- In B. Krishna Rao Vs. Nikhil Super Specialty Hospital, III (2010) CPJ 1(SC), the Hon’ble Supreme Court has upheld the Bolam’s test relied in Jacob Mathew vs. State of Punjab and Anr., (2005) 6 SSC 1 which states:
“A Doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art…. It was also made clear that 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.”
But, in the case on hand, the OPs have not acted with ordinary care. The functional integrity of the haemostatic system is a prerequisite for the safe performance of neurosurgical procedures. It is essential to monitor the individual coagulation capacity of each patient, standard tests are effective to detect deficiencies involving the generation of fibrin. Postoperative hematomas are a common complication of surgical procedures. Changes in haemostasis during intracranial surgery are miscellaneous and vary from disseminated intravascular coagulation to deep venous thrombosis. These changes were attributed to alterations primarily caused by brain neoplasms or to the influence of intracranial surgery itself. Although meticulous surgical haemostasis is of paramount importance to prevent a subsequent hematoma, impaired activation of coagulation and/or increased fibrinolytic activity may nevertheless cause postoperative bleeding. It is known that, postoperative hematoma is a potential life-threatening complication after intracranial surgery and is frequently associated with poor outcome and death of neurosurgical patients. Therefore, it is of vital importance to identify risk factors that can be avoided or specifically treated. In addition to coagulopathies, disseminated intravascular coagulation and drugs interfering with platelet function are identified as risk factors for bleeding complications. However, most of these abnormalities can be detected by routine coagulation tests or through medical history. Therefore, Standard coagulation tests BT,CT including partial thromboplastin time (PTT), prothrombin time (PT), fibrinogen, and platelet count are important parameters which should be made available, prior to surgery.
- A hospital can be held vicariously liable on numerous grounds on different occasions. Employers are also liable under the common law principle represented in the Latin phrase, "qui facit per alium facit per se", i.e. the one who acts through another, acts in his or her own interests. This is a parallel concept to vicarious liability and strict liability in which one person is held liable in Criminal Law or Tort for the acts or omissions of another.
Several High Court Judgments have held hospitals vicariously liable for damages caused to the patients by negligent act of their staff. In Joseph @ Pappachan v. Dr. George Moonjerly [1994 (1) KLJ 782 (Ker. HC)], the Hon’ble Kerala High Court observed that,
“persons who run hospital are in law under the same duty as the humblest doctor: whenever they accept a patient for treatment, they must use reasonable care and skill to ease him of his ailment. The hospital authorities cannot, of course, do it by themselves; they have no ears to listen to the stethoscope, and no hands to hold the surgeon’s scalpel. They must do it by the staff which they employ; and if their staffs are negligent in giving treatment, they are just as liable for that negligence as anyone else who employs other to do his duties for him”.
In another judgment by the Madras High Court in Aparna Dutta v. Apollo Hospitals Enterprises Ltd. [2002 ACJ 954 (Mad. HC)], it was held that;
“it was the hospital that was offering the medical services. The terms under which the hospital employs the doctors and surgeons are between them but because of this it cannot be stated that the hospital cannot be held liable so far as third party patients are concerned. It is expected from the hospital, to provide such a medical service and in case where there is deficiency of service or in cases, where the operation has been done negligently without bestowing normal care and caution, the hospital also must be held liable and it cannot be allowed to escape from the liability by stating that there is no master-servant relationship between the hospital, and the surgeon who performed the operation. The hospital is liable in case of established negligence and it is no more a defense to say that the surgeon is not a servant employed by the hospital, etc.”
In the case titled Smt. Rekha Gupta v. Bombay Hospital Trust & Anr. [2003 (2) CPJ 160 (NCDRC)], decided by this Commission, it was observed that,
“the hospital who employed all of them whatever the rules were, has to own up for the conduct of its employees. It cannot escape liability by mere statement that it only provided infrastructural facilities, services of nursing staff, supporting staff and technicians and that it cannot suo moto perform or recommend any operation/ amputation. Any bill including consultant doctor’s consultation fees are raised by the hospital on the patient and it deducts 20% commission while remitting fees to the consultant. Whatever be the outcome of the case, hospital cannot disown their responsibility on these superficial grounds.”
Therefore, we are of considered view that hospital authorities are not only responsible for their nursing and other staff, doctors, etc. but also for the Anesthetists and Surgeons, who practice independently, but admit/ operate a case. It does not matter whether they are permanent or temporary, resident or visiting consultants, whole or part time. The hospital authorities are usually held liable for the negligence occurring at the level of any of such personnel. Where an operation is being performed in a hospital by a consultant surgeon who was not in employment of the hospital and negligence occurred, it has been held that it was the hospital that was offering medical services. The terms under which the defendant hospital employs the doctors and surgeons are between them but because of this, it cannot be stated that the hospital cannot be held liable so far as third party patients are concerned. The patients go and get themselves admitted in the hospital relying on the hospital to provide them the medical service for which they pay the necessary fee. It is expected from the hospital, to provide such medical service and in case where there is deficiency of service or in cases like this, where the operation has been done negligently, without bestowing normal care and caution, the hospital also must be held liable and it cannot be allowed to escape from the liability due to reason of non-existing of master-servant relationship between the hospital and the surgeon.
Therefore, on the basis of foregoing discussion, the OPs failed in their duty of care by not advising relevant and important basic laboratory investigations. It was not a Reasonable or Standard of Care from a hi-tech super specialty institute. Thus, the OPs are held liable. The OP-2 was a consultant Neuro Surgeon at OP-1, who died, during pendency of this case, and therefore, OP-1 hospital is vicariously liable. Accordingly, we direct the OP-1 to pay to the complainant, a sum of Rs.10 lakhs as compensation, with interest @ 6% p.a. from the date of filing of this complaint, within 90 days; otherwise, the complainant is entitled to further interest @ 12% till its realization. The parties are directed to bear their own costs.