The NCDRC has awarded heavy compensation in a medical negligence case owing to which a 6-years old child met untimely death during a squint eye correction surgery.
The Complaint was filed under Section 21 of the Consumer Protection Act, 1986 by the parents of deceased. They listed a series of lethargic approaches and negligent behaviour on behalf of the medical staff.
Apart from the ignorance and overlook in the routine procedures, the complainant alleged that the Doctor performed the surgery after he had already completed 16 operations and there was no hurry to operate on the child on the very day itself, wherein high degree of care was needed.
The Medical Practioners on the other hand denied allegations of negligence in their reply. They expressed their deep sympathies for the death of patient. They took preliminary objection of jurisdiction that such complaint needs extensive and elaborate evidence, therefore Civil Court would be effective for adjudication.
The Learned Counsel for the Complainants argued that this is a case of res ipsa loquitor. He argued that the opposite parties have failed to discharge their burden on the facts and circumstances of the present case. Submitting that complainants are entitled to compensation for the damages for the careless and negligent treatment, the Counsel reiterated the facts in detail. He further argued that, Atropine was given as a pre-medication in all the cases, which prevents bradycardia. Therefore, the timing and dose of Atropine injection are very important to prevent ETI induced bradycardia during surgery and the further cardiac arrest. Atropine should be administered at least 45 minutes before surgery but, in the instant case it was administered as per the convenient schedule of the surgeon. The Counsel further argued that the 1st attempt of ETI was failed, and during 2nd attempt between 3.10 to 3.20 p.m. Scoline was injected and intubation was performed. It caused severe bradycardia and cardiac arrest. Thus, it was the failure of duty of care of the anesthetist. The operating team would have stopped the procedure, which could be avoided death of child.
The squint surgery was an elective surgery and it was not an emergency. The operating surgeon was not aware about the special warnings to use of Scoline in pediatric cases and the anesthetist failed to warn to the surgeon about it. It was further argued that the Opposite Parties have manipulated the documents.
The Counsel for the opposite party submitted that Complainants have made vague and sweeping allegations against the OPs. Even after the filing of Complaint, they carried media trial, compelling the OPs to obtain orders of restraint from this Commission. He reiterated the entire treatment details as per the standard of practice. The treatment given to the patient was reviewed by four independent committees of experts, who had not made any adverse comment or report on the treatment aspect and hospital facilities etc. The learned Counsel submitted that the Complainants have not produced any expert evidence to justify their allegations of negligence
The question for examination before the Commission was whether the treating doctors at Sankara Nethralaya committed the breach in their duty of care, which was the proximate cause of death of Child.
The Court after examining the medical technicalities and the claims made stated that it is pertinent to note that all drugs used in anesthesia have adverse minor to major life threatening complications.
"Anesthetists are aware of such effects and use the drugs depending on the patient, nature and requirements of surgery, disease profile and the situation. The anaesthetist after ensuring that all vital parameters of the patient were normal with oxygen saturation of 99 % use Scoline 50 mg IV as a short acting drug as compared to other drugs such as Atracurium, Vecuronium, etc. As per the treating doctors the scheduled squint surgery of the child was only a short duration surgery. It is not clear from the record that whether and when Atropine was given as a premedication before induction or following episode of bradycardia. It is also not clear that whether it was administered IV or Intramuscularly (IM). In the instant case Halothane was an elective choice of OP-3, therefore anticholinergic like atropine or glycopyrolate has to be given prior. Halothane itself is known to cause bradycardia. The failed intubation cannot rule out possibility of wrong intubation (in the esophagus). After failed 1 st intubation, Scoline was injected for 2 nd intubation and then child suffered hypoxia- bradycardia and arrest. In our view it was the effect of Halothane and Scoline. The anesthetist (OP-3) should have altered/ cautioned the operating surgeon (OP-2) about the warning signs of Scoline. The surgeon was not aware that any special warnings for the use of Scoline in pediatric cases.'
It was of the view that the argument that surgery could have been abandoned is justified. It also mentioned SC precedents in medical negligence:
-Kusum Sharma & Ors. Vs. Batra Hospital &Med.Research Centre &Ors, 2010 Latest Caselaw 128 SC in which it was discussed that the breach of expected duty of care from the doctor, if not rendered appropriately, it would amount to negligence. It was held that, if a doctor does not adopt proper procedure in treating his patient and does not exhibit the reasonable skill, he can be held liable for medical negligence.
-A.S. Mittal & Ors Vs. State of U.P. & Ors, 1989 Latest Caselaw 189 SC wherein certain duties of the doctor have been laid down. The doctor owes to his patient certain duties which are (a) a duty of care in deciding whether to undertake the case; (b) a duty of care in deciding what treatment to give; and (c) a duty of care in the administration of that treatment. A breach of any of the above duties may give a cause of action for negligence and the patient may on that basis recover damages from his Doctor.
"It is well established that a hospital is vicariously liable for the acts of negligence committed by the doctors engaged or empanelled to provide medical care[5]. It is common experience that when a patient goes to a hospital, he/she goes there on account of the reputation of the hospital, and with the hope that due and proper care will be taken by the hospital authorities. If the hospital fails to discharge their duties through their doctors, being employed on job basis or employed on contract basis, it is the hospital which has to justify the acts of commission or omission on behalf of their doctors. Accordingly, we hold the OP-1 Sankara Netralaya to be vicariously liable for the acts of omission and commission committed by the OP-2 and 3 as being jointly and severally liable to pay compensation to the Complainants", the Court observed.
It mentioned that Supreme Court has held that there is no restriction that courts can award compensation only up to what is demanded by the complainant.
"The grant of compensation to remedy the wrong of medical negligence is within the realm of law of torts. It is based on the principle of restitutio in integrum.[6] The said principle provides that a person is entitled to damages which should as nearly as possible get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong. Thus, having regard to the finding that the incidence occurred in year 2000 and we are now in 2022, the litigation has been pending for over 2 decades."
The Court referred to National Insurance Company Ltd. Vs. Kusuma & ANR. , 2011 Latest Caselaw 613 SC wherein the Supreme Court has held that payment of compensation to parents for the death of a child, including a stillborn, in an accident must be just and not be a pittance. Thus, in our view, no amount can be just and adequate in an absolute sense. 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.
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(With input from news agency language)
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