New Delhi: Denying any relief to the Mumbai-based hospital, its Orthopaedician and Anaesthesiologist from the charges of medical negligence, the National Consumer Dispute Redressal Commission (NCDRC) has upheld more than Rs 12 lakh compensation to the family of a senior citizen patient, who did not regain consciousness due to excessive use of anaesthesia during surgery.
In its order, the top consumer court ruled that though negligence was attributable to the anaesthesiologist who passed away a few years ago, the hospital shall not be absolved from vicarious liability. Moreover, the orthopaedician, who was leading the procedure, has been directed to pay his share of the compensation as – “before proceeding to surgery, he was supposed to be careful to ascertain proper pre-anaesthetic check-up and fitness report,� stated the NCDRC.
The NCDRC bench presided by Honourable Justice Dr SM Kantikar was dealing with the appeal filed by the doctor and the hospital, challenging the order passed by the Maharashtra State Consumer Disputes Redressal Commission in 2015 in favour of the patient’s family.
The case goes back 15 years to 2008 when the patient (66) was operated on by Dr Ajay Rathore, an orthopaedician, at Parel Hospital, Mumbai for a fracture on her forearm on June 21. The anaesthesiologist was Dr Mulji Khemji Gada (who died during the proceedings before the state commission).
Though the operation was conducted in the morning, the patient did not regain consciousness due to excessive use of anaesthesia. Her condition worsened further, she was intubated and put on a ventilator, the complied filed by the daughter of the deceased patient stated.
The patient was hospitalised for a long period in an unconscious condition. The neurologist, after performing a CT scan and MRI, diagnosed her with ‘hypoxic encephalopathy’. Thereafter, the unconscious patient was shifted to another hospital, where she died on October 24, 2008.
Initially, a complaint was filed before the district forum, Central Mumbai, which rejected her plea.
The family then moved the state consumer commission in 2015. In 2018, it ruled in favour declaring- “the opposite parties have indulged in deficiency in service while giving treatment to the complainant’s mother� and ordered the hospital and doctor to pay her a compensation of more than Rs 12 lakh including interest.
Aggrieved by the state commission’s order, the doctor and the hospital, in 2019, filed appeals before the national consumer commission, denying any medical negligence.
Hearing the arguments from the counsels of both sides, the NCDRC held anaesthesiologist guilty of negligence and said that it was evident that the he had not performed the pre-anaesthetic test properly.
“He administered anesthesia by Ketamine along with injection Fortwin 25mg and Compose 10 mg. It is pertinent to note that Ketamine was given as 5ml in Ringer Lactate and later on 3ml was administered. It was an excessive dose of ketamine in the old patient of 66 years,� the bench noted.
“In my view, it was the negligence and failure of duty of care from the Anesthetist, who administered excessive dose of ketamine and failed to managed the hypoxic event,� it observed.
It is pertinent to note that the anaesthesiologist (OP-3) did not even read the reports of investigations of patient and relied on telephonic communication by OP-1, (Orthopaedician) given fitness for anaesthesia- NCDRC
“After the surgery the patient did not come out of anaesthesia and she was shifted to another hospital for ICU Care. The patient was in vegetative state for next 4 months and died on 24.1-.2008. The anaesthesia record of Parel Hospital on 21.06.2008 the day of operation it was noted that the patient suddenly suffered from hypoxia and was intubated. However, for emergency lifesaving intubation Dr. Brijesh Gupta the intensivist from ICU was called. Thus, the said delay was fatal and the patient was not properly managed. It was the negligence on the part of Anaesthesiologist (OP-3), the bench held.
The expert committee report from the department of Traumatology and Orthopaedic Surgery of Grant Medical College and Sir J J group of Hospitals had given stated that there was no medical negligence on the part of the operating surgeon. The NCDRC, however, referred to the opinion of one of the experts, a neurosurgeon, who cited that as a certain parameter was low, it should have been built up before surgery and pre-anaesthetic fitness should have been recorded.
“It was the valid point that the other experts have not commented on this point. As there was no recovery from anaesthesia after the operation, in my view, the pre and post-operative care was certainly doubtful in the instant case… There is no record showing that the patient was monitored during operation under anaesthesia and why a qualified anaesthesiology had to call another intensivist doctor for endotracheal intubation…,� the commission noted.
While the court agreed with the opinion of the expert committee which found no negligence of orthopaedician, it observed:
“The ‘captain of the ship’ was the orthopaedic surgeon and before proceeding to surgery, he was supposed to be careful to ascertain proper pre-anaesthetic check-up and fitness report.�
It further said that even though the anaesthesiologist died during proceedings before the state commission and his legal heirs were brought on record “right to sue survives� against him.
“Though, negligence was attributable to the anaesthesiologist, the hospital shall not be absolved from the vicarious liability,� the national commission said.
Hence, the NCDRC didn’t find any “error apparent� to interfere in the state commission’s order directing more than Rs 12 lakh compensation to be paid by the hospital and the doctor to the family of the deceased patient. The revision petitions filed by the hospital and doctor were dismissed accordingly.
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