Revisional power limited: NCDRC upholds order that found doctor, anaesthetist guilty of medical negligence

New Delhi: Clarifying that in a revision petition, the National Consumer Dispute Redressal Commission (NCDRC) had the authority to interfere only if there had been a case of illegality, material irregularity or jurisdictional error, the apex consumer body upheld the State Commission’s award in favour of the patient who died due to medical negligence by the doctors while performing an operation to remove the gall bladder stone.

The bench comprising presiding members Dr S.M. Kantikar and Binoy Kumar held that it was bound by the fact-related findings of the District and State Commissions while the petitioners argued over different facts.

The case concerns a patient who was examined by a doctor at his hospital and was eventually admitted for surgery of gall bladder stone in September 2003. Allegedly, in the Operation Theatre (OT), the anaesthetist did not perform a pre-anaesthetic checkup and gave an IV injection to the patient without a test dose. The patient started trembling immediately and thereafter, the doctor, who had examined the patient initially pushed the Pentothal injection in one stroke and the condition of the patient worsened.

During this emergency, the relatives of the patient were allegedly asked to move outside and equipment and doctors from another hospital were arranged. After two hours, the relatives were informed that the patient had expired. Allegedly, the paramedical staff informed the complainant that the doctors did not make any efforts to revive the patient. A few essential facilities were also not available in the OT.

It was further alleged that the anaesthetist was serving in Civil Hospital, Ferozepur City and on that particular day, he was in hurry to return to his duty at Civil Hospital. Therefore, he hurriedly administered IV anaesthesia without any pre-test. As per Government Rules, the anaesthetist was not authorized to visit a private hospital for administering. anesthesia.

The relatives of deceased filed an FIR at police station under Section 304/34 IPC but the Police recorded only DDR in the roznamcha. They somehow procured the xerox copy of a report made by the Pathology Department which showed that the death was due to Cardio Respiratory Arrest because of a drug reaction.

Based on the said report, a Consumer Complaint was filed for medical negligence, wherein the District Commission partly allowed the complaint and awarded a sum of Rs. 3,60,000/- to the patient with the following observation;

“From the above noted facts and circumstances, it is made out that administration of Anaesthesia drug to the patient, though there is plea that pre-test was conducted before administering Anaesthesia but the reaction could have been detected at the very first stage if it would have been through test dose. Since the anaesthetist was silent spectator, so after administering of ten ml dose of Anaesthesia by the doctor himself, the reaction took place. Such like reaction could have been controlled by the opposite parties, but they had no proper infrastructure. There is delay in life saving drug and consulting of medical experts. So apparently this is a case of medical negligence.”

Being aggrieved, the Insurance Company, the concerned Hospital and the doctor filed a first appeal and the complainant filed an appeal for the enhancement of compensation. The State Commission dismissed the first appeal and enhanced the compensation to the complaint to Rs 7,00,000/- payable by the doctor and the anaesthetist and severally. Prominently, the State Commission also made certain observations on the private practice of the anaesthetist as below:

“It is admitted case of the that he was working as PCMS in Civil Hospital Ferozpur City on 12.10.2003 (on that particular day) and he was also taking NPA from the Govt of Punjab but he was also doing private practice against the instructions/rules of the Govt of Punjab, as such, he was/is not entitled for the NPA. It was also in the notice of the Civil Surgeon, Ferozpur on complaint filed by respondent No. 1 Chhinder Kaur that the anaesthetist was doing private practice in the private hospitals but no action was taken by the then Civil Surgeon, Ferozpur, Even no letter was written to the Director/Secretary, Health Department to stop the NPA to the anaesthetist to save the anaesthetist against his duty cast by the Govt of Punjab as Civil Surgeon to control the Medical staff in District Ferozpur.”

“The Registry is directed to send a copy of the order to Secretary Health Department, Govt of Punjab Sector-34, Chandigarh to take action against the anaesthetist and to recover the NPA from him which he was drawing illegally when he was indulged in private practice.”

Being aggrieved, the anaesthetist and the Insurance Company filed the revision petitions.

The petitioner argued that the State Commission wrongly enhanced the compensation. The anaesthetist further argued that the patient was not directly concerned with him, nor pair any consideration to him, therefore, cause of action does not arise against him. As per him, the OT and the anaesthesia instruments were in working order.

Further, in context of the private practice, it was submitted that;

“The petitioner was working in City Hospital but he was not in duty on 12.10.2003 being Sunday. The patient was taken to OT by the staff and thereafter, the petitioner checked the OT and anaesthesia instruments, which found everything in working order. He further submitted that the govt. of Punjab, Department of Health had exonerated the petitioner from all charges.”

The Commission placed special emphasis on the fact that before the operation, no ECG/informed consent of the patient was taken. Only one signature was taken but all other spaces on the consent form, regarding the doctor and patient details were left empty. It was not disputed that the anaesthetist was a silent spectator while the injected the 10 ml anaesthetic Pentothal Sodium which cause a severe reaction. The evidence on record clearly showed that the equipment was missing.

The Commission held the anaesthetist accountable on the basis of the findings and observed;

“The anaesthetist visited the hospital as a courtesy call on the asking of the doctor for help. The grouse of the anaesthetist that State Commission has exceeded its jurisdiction and power by directing the Registry of the State Commission to send the copy of the impugned order to the Secretary, Health Department, Government of Punjab, Sector 34, Chandigarh for action against OP-3 and to recover the N.P.A. from him, which he was drawing illegally when he was indulged in private practice. However, the Government of Punjab, Department of Health has exonerated the OP-3 from all charges. Therefore, how the said issue is not under consideration.”

It added;

“Admittedly, the anaesthetist was called by the doctor on 12.10.2003 in the morning only, when the patient was lying in the OT. The doctor, in his cross examination, stated that no test dose of Pentothal Sodium was given to the patient, but he himself injected Pentothal sodium without proper monitoring, though he was not competent. Even the patient’s ECG was not done immediately to detect cardiac arrest, but OP-1 waited 30 minutes for other doctor to come.”

The apex consumer body further noted;

“As per the statement of the other doctor, he was called at 8 am through messenger to bring the ECG machine. He performed ECG at 8.10 am. He also brought the Cardiac Defibrillator. This proves beyond doubt that the vital instruments ECG machine and Cardiac Defibrillator were also not available in OT. The opinion of medical board did not find any negligence during treatment given by the concerned doctor, the anaesthetist and Dr Kaur. In our view, it was biased and erroneous opinion of the board to protect the doctors. The Complainants have filed an opinion on affidavit of Dr. M.P. Monga (Ex. C-22), which was acceptable.”

Further, the presiding members found themselves bound by the facts which were already established by the District and State Commissions. It held;

“In the present case there are concurrent finding of the facts and the revisional jurisdiction of this Commission is limited. We do not find any illegality, material irregularity or jurisdictional error in the impugned Order passed by the State Commission warranting our interference in revisional jurisdiction under Section 21(b) of the Consumer Protection Act, 1986.”

Reliance was placed on the Supreme Court judgment in Rubi (Chandra) Dutta vs M/s United India Insurance Co. Ltd. (2011) 11 SCC 269, wherein the court held that the revisional jurisdiction is very limited. The higher forum can only interfere when there is any illegality, material irregularity or jurisdictional error in the impugned order warranting the interference in revisional jurisdiction under Section 21(b) of the Consumer Protection Act, 1986.

With the aforementioned observations, the NCDRC did not find any merit in the revision petitions and dismissed the same. The award passed by the State Commission was upheld.

To view the original order, click on the link below:

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