New Delhi: Holding a Thane-based Surgeon negligent while providing treatment to a patient suffering from Stress Urine Incontinence (SUI), the National Consumer Disputes Redressal Commission (NCDRC) has directed the doctor to pay Rs 2 lakh compensation to the patient.
The Apex consumer court made this observation after noting that the surgeon had prescribed the medicine Dolamide to the patient despite being aware of the fact that the Sr. Creatinin was 2.57% and the patient was in renal compromise.
“Thus, in our considered view opinion form the physician or Nephrologist was necessary, particularly in this case. The OP would have told/discussed with the patient about the risks of use of NSAID. It was a failure of duty of care from OP,” opined the NCDRC bench.
“Therefore, considering the peculiar facts of this case and in the ends of justice the OP is directed to pay Rs. 2 lakh to the Complainant within 6 weeks from today, failing which the amount shall carry 9% interest per annum till it’s realization,” stated the order.
The history of the case goes back to 2006 when the patient had been operated by Dr. Krishnakumar at his Kumar Maternity and Surgical Nursing Home for ‘Stress Urine Incontinence’.
It was alleged that the surgeon had performed the SUI operation ignoring the initial high Serum Creatinine (2.67%). After the operation, the doctor had also prescribed medicines Dolamide, Odoxil-500, Ulozet & Neurobin.
Allegedly, around six months after being discharged, the blood pressure of the patient had increased and she had consulted a Physician, who had referred the patient to a Nephrologist. The doctor had informed the patient that renal impairment led to damage both her kidneys and the patient was suffering from Chronic Kidney Disease (CKD). It was alleged that this had happened due to wrongly prescribed Dolamide, containing Nimesulide.
In 2007, when the patient had been admitted to Jaslok Hospital, a doctor there had informed her that the SUI operation should not have been performed when the serum creatinin level was 2.67%. As per the discharge summary, she was a case of End Stage Renal Disease ( ESRD) and was on regular hemodialysis since October, 2008.
Following this, being aggrieved by the treatment provided by the first surgeon, the patient had filed a complaint before the Maharashtra State Consumer Court. However, the Doctor denied negligence on his part. He had submitted that the patient had deliberately concealed her Kidney disease and he had also claimed that administration of Dolamide for short period of 5 days will not cause Chronic Renal Failure.
Relying on the book ‘Drug Today’, the doctor had also submitted that the tablet Dolamide containing drug Nimesulide is one of the safer form of NSAIDs (Non-Steroidal Anti-inflammatory Drug) with unique action, having less renal side effect. The doctor had claimed that NSAIDS can cause acute renal problem only if taken for prolonged period of time, without interruption.
After considering the complaint, the State Commission dismissed the complaint and thereafter the patient approached the NCDRC bench. The top consumer court perused the medical record, the evidence and literatures on drug induced Acute Renal Failure.
“The medical literature NSAIDs are known to worsen kidney function in CKD patients. In the instant case was it a direct cause of ESRD. NSAID-associated Acute Kidney Injury (AKI) is predominantly hemodynamically mediated, resulting in reversible reduction in GFR or ischemic tubular injury. NSAIDs are associated with adverse renal outcomes, and their risk must be weighed against the benefit of improved pain control. An accurate risk assessment must be highly individualized based on CKD stage, age, comorbid conditions, and concomitant medication,” the bench observed.
Referring to the medical record of the patient and comparing the level of Sr. Creatinin in the patient in October 2006 and September 2007, the NCDRC bench opined,
“In our view, the rise was not due to consumption of Dolamide for 5 days. It should be borne in mind the patient was known case of hypertensive and on medication for a decade. Rise in Sr. Creatinin was due to chronic process of renal damage, not due to short use of Dolamide which induces Acute Renal Injury.”
However, examining the law on medical negligence, the bench referred to the Supreme Court judgment in the case of Kusum Sharma and ors v. Batra Hospital and Medical Research Centre & Ors. and Spring Meadows Hospital v Harjyot Ahluwalia.
Noting that the main question was whether before prescribing Dolamide, the opinion of Nephrologist was necessary, the bench observed,
“Admittedly, the OP was a surgeon and as a common practice, painkiller like Dolamide is prescribed for short period. But in the instant case, the OP was aware that Sr. Creatinin was 2.57 mg%, the patient was in renal compromise, thus he should be very careful while further prescribing Dolamide to avoid further renal damage.””Thus, in our considered view opinion form the physician or Nephrologist was necessary, particularly in this case. The OP would have told/discussed with the patient about the risks of use of NSAID. It was a failure of duty of care from OP. It was not even an ‘error of judgment’. We also note that, after discharge, the patient did not come for follow-up with Renal Function Tests, thus it was Contributory negligence,” it further noted.
Pointing out that there was a long gap after consumption of Dolamide tablets and the evidence of ESRD, the bench noted, “The rising Sr. creatinin values indicate, that Dolamide precipitated the renal damage in the existing renal disease. It was a team work, opinion of Nephrologist would have certainly avoided the mistake. Thus, advising Dolamide tantamount to negligence of the OP to certain extent. Therefore, in our view, the OP was not liable completely for the ESRD and subsequent renal transplant.”
Even though the Commission directed the doctor to pay Rs 2 lakh compensation to the patient, it observed,
“Based on the discussion above, the OP is liable for limited extent, the entire negligence can’t be attributed to OP for ESRD and renal transplant. By no stretch of imagination, we should award a paltry sum for gross negligence; conversely exemplary compensation need not be awarded in case minimal negligence.”
To read the order, click on the link below: