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Judgment
Dr. S.M. Kantikar, Presiding Member
The present Complaint has been filed under section 21 of the Consumer Protection Act, 1986 (for short “the Act”) by Nomeshwar Prasad Baluapuri, father of the deceased & the other Complainants, who are mother, wife and children of deceased (hereinafter referred to as the ‘Complainants’) against the Zenith Hospital (OP-3) and the treating doctors - Dr. Mukund Thakur, the Surgeon (OP-1) and Dr. V. Alsi, the Anesthetist (OP-2) seeking compensation amounting to Rs. 10 crore for the act of medical negligence.
The facts are that Mr. Vineet Baluapuri (since deceased, hereinafter referred to as “the patient”) was suffering from Hemorrhoids (piles) for 6-8 months. Initially, he was under treatment of Dr. S. K. Hajra and on 02.09.2014, he was referred to Dr. Mukund Thakur (OP-1) at Zenith Hospital (OP-3) for piles surgery. The OP-1 examined the patient and the laser surgery for piles was fixed on 05.09.2014. It was alleged that the patient was not fit for surgery. The OP-1 did not see patient’s blood reports; ignored the major variation in ESR and platelet count. The OP-1 brushed aside by telling that it was marginal variation. The Anesthetist, Mr. V. Alsi in his anesthesia record mentioned about mild rise in Serum Bilirubin level which indicates deranged liver functions. After the operation, the patient was shifted to the room. He developed 107oF fever in the night. It was alleged that at around 9 p.m., OP-1 came to see the patient and advised medicines for fever only without antibiotics. On the next day, patent’s BP fell down to 70/50 mm of Hg and it remained same up to 5.30 p.m. The OP-1 was unable to handle the patient’s worsening condition and therefore, he referred the patient to Arneja Hospital, Nagpur. The doctors at Arneja Hospital, on examination, noted the BP and platelet count were low, and informed the Complainant No. 1 about the critical condition of the patient due to multi-organ failure. It was also alleged that the OP-1, as courtesy, did not bother to enquire or to visit the Arneja Hospital. The visiting physician, Dr. Manish Pahukar was called, but the patient breathed his last at 9:00 am on 08.09.2014. As per the death summary, the diagnosis was septic shock with multi organ failure. The Complainants further alleged that the OP-1 filed forged documents to mislead the Commission. The patient was under care of non-allopathic Ayurveda doctors, who were unable to manage the serious condition due to septicemia and multi-organ failure. It was a gross negligence of the hospital (OP-3) and the treating Surgeon and the Anesthetist (OPs- 1 and 2) who hurriedly performed the operation ignoring the crucial lab reports. On 25.09.2014 the Complainant No. 1 filed the Complaint with Ambazhari Police Station, Nagpur, who referred it for opinion to the Dean, Government Medical College, Nagpur. Being aggrieved due to alleged medical negligence, the complainants filed the Consumer Complaint to claim compensation of Rs. 10 Crore. The Complainants further prayed for direction to the Opposite Parties to deposit at least Rs. 24 lakhs for 2 years and pay the Complainants Rs. 1 lakh per month till the disposal of the case.
Defense:-
The Opposite Parties Nos. 1 to 3 have filed a written version and denied the allegations of negligence. It was submitted that the entire complaint was based on misconceived allegations like abnormal blood reports, lack of post-op care and the septicemia resulted due to piles operation. The OPs filed the medical record including the lab reports and treatment given to the patient. It was submitted that the surgical procedure was uneventful and the patient was shifted to room as he was found to be normal in all respects. The patient was found to have developed fever at 6.30 pm on 05/09/2014 and the fever had gone up to be 102°F. Immediately proper medicines and IV fluids were administered. The patient was also taking orally liquid diet. The patient was examined by OP-1 at 9.00 pm. The patient was already on antibiotic treatment with other medicines. However, since the patient developed fever, pathological investigations were repeated, which revealed low platelet count. Therefore, OP-1 advised further investigations viz. CBC, LFT, KFT etc. He also discussed the case with physician Dr. Pahukar and requested to visit the patient.
On 06.09.2015 at 5:00 pm, the condition of the patient was abruptly deteriorated and he became restless with breathing difficulty. Dr. Manish Pahukar, Physician was called, he examined the patient and ECG was performed. The provisional diagnosis of Acute Coronary Syndrome (ACS) was made. Dr. Pahukar discussed the findings with OP-1 and Dr. Arneja and thereafter, shifted the patient to Arneja Heart Institute at 6.00 pm.
Arguments:
We have heard the argument from the learned counsel on both the sides. They have reiterated the facts and evidence on record. We have perused the relevant medical literatures.
Argument on behalf of the Complainant:
The Counsel for the Complainant reiterated the facts and evidence. He vehemently argued that the instant complaint is a clear case of medical negligence of the OPs during minor operation of piles. A healthy man of 42 years, who was continuing with his normal chores daily till a day prior to the operation, died within 3 days of the operation due to negligence. There was deficiency of the hospital, who failed to provide standard pre-operative and post-operative care. The OP 1 and 2 ignored the abnormal test values under the garb of marginal variation. The Civil Surgeon opined that in such a situation, operation ought not to have been carried out. The OP-1 acted in a very careless manner. He neither called any consultant to check for septicemia nor assessed the patient for multi-organ failure. It was gross negligence that post operatively the patient was under care of the junior Dr. V N Thakre and other non MBBS/non-allopathic doctors. It was an afterthought averment of OPs that Dr. Thakre had inadvertently reported the temperature as 107oF, instead of 102oF. The learned Counsel further submitted that few prescriptions issued by OP-1 were forged and fabricated showing discrepancies in the date and time, recording of BP, the diagnosis Haemorroids/with Acute Anal Fissure. According to the handwriting and finger print expert Mr. Jeevan from Nagpur, confirmed the overwriting of the date on the prescription. The records issued to Maharashtra Medical Council (MMC) were different which were neither case papers nor the reference letter with details of injection Dopamine and injection Tazobectum with pipperacilline. Thus, it proves that the bowel was not clean and disinfected, thus the possibilities of bacteria being present.
Arguments on behalf of the OP-1 to 3
The learned Counsel for the Opposite Party Nos. 1 to 3 reiterated their written version and evidence on record. The learned Counsel submitted that the allegations of Complainants are based upon imaginations and misconceived facts. The complication, developed on 06.09.2014 to the patient, has no nexus with the topical surgical procedure performed by the OP-1. The complications were treated with due care and caution by the OP-1 in consultation with experienced physician. He further submitted that the Complainants did not opt for autopsy (post mortem) of the dead body, otherwise, it would have confirmed the exact cause of Septicemia. The OPs to support their argument filed relevant text from the Text Books Miller’s Anesthesia, Short Practice of Surgery (Bailey and Love) and few literatures viz-
i. Elevated Liver Enzymes in a Asymptomatic patient – What should I do?[ Journal of clinical and Translational Hepatology-2017, volume-5, page 394-403]
ii. Platelet count and Aging[Journal of European Haematology Association – June 2014, Volume-99, Page 953 to 958]
iii. Prophylactic Antibiotics for Hemmorrhoidectomy; Are they really needed?[ Published in Journal “Diseases of colon and Rectum”]
iv. Portal Pyaemia secondary to open Hemarrhoidectomy: need for prophylactic broad spectrum antibiotics[British Medical Journal, June-2013]
v. “Surgical Treatment of Haemorrhoids” Harmonic scalpel versus ferguson’s Haemorrhoidectomy[Scholar’s Journal of Applied Medical Sciences- 2014, Vol. 2(6F), page 3247-3249]
vi. Surgical complications in 2840 cases of Hemorrhoidectomy by Milligan – Morgan, Ferguson and combine techniques[Journal of coloproctology, Volume – 32(3), July/Sept. 2012]
vii. Dengue shock[Journal of Emergencies, Trauma and shock-2011, Jan-March Volume 21(1)]
x. Ofloxacin. Its Pharmacology, Pharmacokinetics and Potential for clinical Application[Published in Pharmacotherapy - 1988]
Findings and Conclusion:
Considering the entirety, the crux of the instant case is that whether there was any failure of duty of care from the OPs-1 and 2 during topical surgical procedure for piles.
We have carefully perused the entire medical record of Zenith Hospital and the referral hospital Ajmera Hospital. The prescription dated 02.09.2014 of OP-1 it was diagnosed as grade IIo Hemorrhoids with acute anal fissure and advised harmonic haemorroidectomy. The patient was advised for admission at 8.30am on 05.09.2014 and prescribed Tab. Doxacin oz(2), Cap. Gopan DSR (1) and Syp. Laxitol (50ml). On 03.09.2014, the relevant lab investigations CBC, LFT, KFT and lipid profile, HbsAg (Australia antigen) and HIV screening were done. All found to be normal. There was marginal increase in the LFT values as Serum Bilirubin (Total 2.07 mg%, Direct Bil- 0.67 & Indirect Bil- 1.47), SGOT 51.5 U/L, SGPT-44.5 U/L and the Platelet Count was 1.47 lacs/cmm. In our view, it was not a significant /gross variation or abnormality, which might be due to lab to lab variation.
It is evident from the clinical history that the patient was suffering from painful hemorrhoids for last 6-7 months. His routine activities were disturbed due to severe pain and distress. Therefore, advice of OP-1 for surgery was correct and reasonable accepted practice. It is pertinent to note that, proper informed consent was taken. The consent form was signed by the patient and his father on 05.09.2014. Specifically in handwritten patient accepted it as “I want my surgery for servere pain and bleeding”. The operation was performed under local Sadal block of anal region. The harmonic scalpel haemorroidectomy (HSH) done from 3, 7 & 11’o clock position. There proper hemostasis achieved for bleeding and anal pack was kept. Post operatively, the patient was kept under observation and administered IV antibiotics and fluids (RL & NS). The progress sheet revealed that the patient was examined at periodic intervals. At 9.00 pm, spike of 102oF fever with chills and profuse sweating was noted. On examination the vitals were stable, there was no bleeding. Patient was given IV paracetamol and the fever decreased. The doctors planned to investigate if fever persists. The OP-1 again visited the patient at 12.30 am, who was found to be stable.
On the next day (06.09.2014) at 6.30 am, the patient was well oriented. The vitals were stable and passed the urine. The tests for Dengue and Platelet count were advised. At 2.00 pm, there was fall in blood pressure to 90/60 and Dopamine drip was started. The Malaria antigen and Dengue were negative. The platelets became low to 66000/cmm. The ECG was within normal limits. The OP-1 advised LFT, KFT and CBC and at 6 pm the physician Dr. Pahukar was called who examined the patient and advised to rule out acute coronary syndrome (ACS) with shock. He further advised tests CPK-MB, Trop T and repeat ECG. The patient was shifted to Arneja Heart Institute for further treatment.
The OP-1 received the lab reports at around 6:45 pm and same were given to Arneja Heart Institute. The blood parameters were suggestive of severe infection involving all vital organs. The other investigations reports for fever like Malarial antigen, Dengue NSI and Dengue IgM & IgG were negative. In comparison of lab reports which were done on 03.09.2014, the values were high- deteriorated. The TLC (17000/cmm), Serum bilirubin (6.3 mg%) and liver enzymes(SGOT- 285 & PT-120 u/L) were increased. Platelets were reduced to 69000/cmm. On the basis of clinical findings and lab reports Dr. Arneja diagnosed the condition as Septicemia involving the vital organs. On next day (07.09.2014) the condition of patient deteriorated very fast leading to pulmonary distress and finally the patient succumbed.
In the instant case, OP-1 adopted the topical surgical procedure with the use of harmonic scalpel technique. The salient features of the said procedure are as under:
The procedure was carried out by adopting saddle block anesthesia technique (Selective Nerve Blocking Technique).
The procedure is carried out by using Harmonic Scalpel which provides ultrasound energy for coagulating and cutting the pile mass.
Accordingly the pile mass was coagulated, cut and removed. There not a single drop of blood was lost.
The technique does not require any stitches and the entire technique is painless.
Total procedure requires period of 10 to 15 minutes. There is absolutely no insult to the surrounding tissue.
It is pertinent to note that at the initial stage, the Ambazari Police Station took opinion from the Committee of Experts at Government Medical College & Hospital, Nagpur (GMCH) . The opinion dated 05.01.2015 stated that the patient was seen periodically on 05.09.2014 at 8.30 am, 2.30 pm, 9.00 pm and on 06.09.2014 at 12.30 am, 8.30 am and 2.00 pm. As per sister treatment register, adequate treatment was given to the patient for hypotension at 9.30 am on 06.09.2014. The ECG was normal, however, the BP remained continuously low in spite of the treatment. The Physician Dr. Pahukar was called, who examined the patient at 6.00 pm and advised to rule out acute coronary syndrome (ACS) with shock. He advised few investigations (CPKMB, Trop T) and repeat ECG. The treatment for shock was done accordingly. The Committee opined that at the time of shifting of the patient from OP-3 hospital to Arneja Hospital, the condition of the patient to be relatively stable with ongoing treatment. At Arneja Hospital, it was diagnosed as multi-organ failure. The Committee concluded that it was not a case of medical negligence.
The Complainant alleged that the above report dated 05.09.2014 was one-sided and biased, therefore, he made an appeal to Hon’ble Prime Minister of India for review of the said report. Accordingly, the Dean of GMCH directed the Committee to look into the objections raised in the Appeal. The Committee, after considering the oral and written representation, from the parties clarified the objections vide report dated 04.02.2015 and concluded as below:
“The representative of applicant Dr. Yogesh Baluapuri has raised many questions before the committee in written statement as well as oral, in the meeting called again as per instructions of the Dean, to give hearing to both parties. Majority of the questions by Dr. Yogesh Baluapuri were given patient hearing to the satisfaction of representative. Many of the questions are not within the perview of the committee, few examples are like manipulation of the Hospital record by treating doctor, another discrepancy regarding the temperature record, two prescription of the same patient etc. The same may be enquired and investigated by the appropriate authority, as it does not fall within perview of this committee. The committee has already given opinion and maintains it. The review should be done by other higher / independent committee.”
We further note that the Complainant in his support filed one synopsis (opinion) of one Surgeon in Bhopal who opined it as gross negligence of the OP. However, it did not signify the name and address of that surgeon. Therefore, such document does not carry any evidentiary value in the instant case.
We have perused the Order of Medical Council of India (MCI) which affirmed the observation made by Maharashtra Medical Council dated 07.08.2018. The relevant paragraph reads as under:
“Council after going through the complaint, documents relied by the complainant, and the reply of the RMP as well as the indoor medical papers of Zenith hospital of RMP, medical texts references and the indoor medical papers of Arneja Heart Institute, coupled with the affidavits, rejoinders of the parties, and the Report of Expert Committee dated 05.01.2015 & 14.02.2015 of GMC, Nagpur, also after thorough discussion amongst the Executive committee members of the Council in its meeting dtd. 20/01/2018 and observed that the case does not seems to be a case of medical negligence or unethical conduct by the RMP in treating the patient.
Therefore, exonerating the RMP (Dr. Thakur Mukund N.) Reg. No. 59150 from the allegations.”
The Ethics Committee of MCI investigated the matter and recorded the statements of Nomeshwar Prasad Baluapuri and Dr. Mukund N. Thakur and concluded that Dr. Mukund Thakur should be more diligent in managing such patients in future.
We further note that Dr. V. Alsi, Anesthetist (OP-2), before surgery evaluated the pathological reports done on 03.09.2014. As per the text book Miller’s Anesthesia the patients are categorized under ASA Grade I to IV category. The instant patient was under ASA-I category. Therefore, the hemorrhedictomy was not contraindicated.
It is pertinent to note that, in the evening of 06.09.2014, drastic changes in vital parameters were noticed which corroborated with the pathological investigations of that day. In our view, such picture was seen when the patient was in pre-incubation period of viral infection which suddenly precipitated affecting all organs. It was commonly diagnosed as Septicemia and after involvement of all vital organs it was the multi organ failure (MOF). We do not find any nexus of MOF with the topical surgical procedure carried out by the OP No. 1. Therefore, the allegations made by the Complainants are incorrect, misconceived and based on imagination. The Postmortem certainly would have conclusive in this case, but the Complainant’s did not opt for it.
We are not convinced with the submission of the learned counsel for Complainants about the alleged forged and manipulated documents. The diagnosis of OP-1 was not faulty, he diagnosed as " II° Hemorrhoids with Acute Anal Fissure". We have gone through few scientific articles viz Short- and long-term results of harmonic scalpel hemorrhoidectomy versus stapler hemorrhoidopexy in treatment of hemorrhoidal disease[Asian Journal of Surgery (2015) 38, 214e219], Surgical Treatment of Hemorrhoids: Harmonic Scalpel Compared with Ferguson’s Hemorrhoidectomy[Ilhan Ece et al., Sch. J. App. Med. Sci., 2014; 2(6F):3247-3249]. The submission of Complainant that without disinfecting the bowel, the surgery was performed therefore possibility of bacteria being there cannot be ruled out. It was erroneous assumption of the Complainant because the bowel itself harbors number of bacteria and commensal organisms. It should be borne in mind that the hemorrhoids and fissures exists and show same symptoms. Thus merely stating ‘fissure’ does not constitute manipulation of record. In our view the Complaint was filed with mere conjunctures and surmises.
In the instant case the patient was suffering from painful hemorrhoids and did not get relief in-spite of 6-8 months of conservative management. The OP-1 is a qualified and experienced surgeon (MS). He performed the HSH which was an accepted technique followed by surgeons all over the world. It was performed under saddle block anesthesia. The HSH was uneventful. We note that the condition of the patient till the noon of 06.09.2014 was stable and there was no complication. However, thereafter, the patient developed restlessness, breathlessness, urine retention and heaviness in chest.
It is evident that in the instant case, the initial pathological reports with minor variation did not connote mild systemic disease. The patient was ASA - I category and there was no contraindication for the HSH procedure which was safe and without any bleeding and without any insult to the surrounding tissue. The entire procedure was completed within 15 minutes. After the procedure the patient was kept under observation. His vitals were stable and he was shifted to room. The patient took orally liquid diet and personally gone to the toilet for passing urine. At 2.30 pm, Dr. Thakur examined the patient and advised for pack removal. The patient was comfortable till 6.00 pm. On 06.09.2014, at about 11 am the blood pressure of the patient suddenly became low, he was conscious, Oxygen saturation was also satisfactory. OP-1 took ECG which was normal. Patient was started with IV fluids and Inj. Dopamine. The patient responded to the treatment, OP-1 examined the patient at 2.00 pm. The platelet count was low, he advised further investigations of CBC, LFT and KFT etc. and called the physician Dr. Pahukar.
We further note that Dr. Pahukar came to Zenith hospital at around 5.30 pm and examined the patient. The patient was fully conscious and well oriented. On enquiries, it came to know that for a very long period patient was taking medicines Tab. Ecosprin and Tab. Telma AM, but he discontinued the said medicines since 3 months. The ECG was again taken, showed changes of "R" wave and it was suspected to be a case of Acute Coronory syndrome (ACS), therefore advised for shifting the patient to higher cardiac center. The OP-1 discussed the issues with Dr. Arneja and shifted the patient to Arneja Heart Institute in the equipped Ambulance of Arneja Hospital. The OP-1 was constantly in touch with Dr. Arneja and intensivist therein. We note the junior doctor - Dr. Thakre issued the referral letter mentioning fever 107°F instead of 102°F, which in our view was an inadvertent error. From the record it is evident that pre-operatively broad spectrum antibiotics were started and also given laxative to clean the gut. Also the combination of Ofloxacin and Ornidazole was given intravenously 45 minutes before the procedure. Additionally, on 06.09.2014 dose of Pipracillin plus Tazobactum (4.5 gm) was administered.
In the instant case that the act of Complainant is apparently constitutes Supressio vari and Suggestio falsi. He deliberately suppressed (Supressio vari) relevant and material information in his complaint. In the instant case HSH was a minor topical surgical procedure took about15 minutes. The complication that developed has no relation to the HSH procedure. There was a typographical error in the transfer note inasmuch as 102oF was wrongly written as 107oF. The Complainant could have asked for a Post Mortem about the cause of death, thus had no complaints against the treating doctors. The Medical Board did not attribute medical negligence to the OPs. The question of fabrication won’t arise when the complete set of Indoor case papers were given to the Medical Board for their opinion. In our considered view pre-existing viral Infection (sub clinical).
The Complainant has deliberately resorted to falsehood (Suggestio falsi). It was false averments that preoperatively patient was unfit and OPs have not examined the pathology reports. It was false averment of Complainant that fever was 107o F, no antibiotics given and the complications were due to the procedure undertaken.
Literature on the subject:
To understand the surgical pathology of Piles (Haemorrhoids) and its treatment modalities, we have perused few research articles and standard books.
· The Hemorrhoids, or “piles,” are swollen or dilated veins of the rectum or anus. They may be located just inside the anal canal (internal hemorrhoids), or surrounding the anal opening (external hemorrhoids). Hemorrhoids may be present for years but go undetected until bleeding occurs. The Anal fissures are tears of the sensitive mucosal lining of the anus. The symptoms of a fissure and a hemorrhoid can be similar. Either can cause pain, itching and bleeding. However, if you are in pain and don't feel an external lump, the condition is more likely to be a fissure. If you notice that you are leaking mucus from your anus, the problem is probably a hemorrhoid.
· The Harmonic Scalpel was introduced for the first time in 1992, which uses ultrasound energy to cut and coagulate soft tissue, with minimal thermal damage to the surrounding tissue.3 Harmonic scalpel has been used extensively in general surgery procedures such as Cholecystectomy, Hemorrhoidectomy and thyroidectomy. In gynecological procedures such as myomectomy and to cut internal mammary artery in thoracic surgery. Currently, the HSH is used as a routine technique in many centers. In HSH, postoperative pain is purported to be minimal, as thermal damage to the surrounding tissue is avoided. During the surgery, harmonic scalpel seals bleeding vessels and forms protein coagulum. When used in hemorrhoidectomy, this method minimizes bleeding of large hemorrhoids and decreases operative time.
· The surgical treatment is considered to be most effective and definitive therapeutic modality for the long standing symptomatic hemorrhoids after conservative treatment. Different surgical methods of hemorrhoidectomy aim to decrease pain, bleeding, stenosis and discharge. The procedure is often painful various treatment options have been developed, such as rubber band ligation, sclerotherapy, photocoagulation, and cryotherapy. However, surgical excision remains the most effective and definitive treatment of hemorrhoids. The harmonic scalpel is an ultrasonically activated instrument with sound waves as its source of power, which vibrates at a rate of 55 000 per second. It is known for its ability to coagulate small and medium-sized vessels thus, potentially it may minimize postoperative swelling and edema to the surrounding tissue The Harmonic Scalpel possesses the unique advantage of causing very little lateral thermal injury in the tissues. A decreased lateral thermal injury. The Harmonic scalpel hemorrhoidectomy (HSH) is a suture less, closed hemorrhoidectomy technique. It is safe, effective and time saving method, has less blood loss, postoperative pain and complications compared to conventional hemorrhoidectomy.
· The article ‘Short- and long-term results of harmonic scalpel hemorrhoidectomy versus stapler hemorrhoidopexy in treatment of hemorrhoidal disease’[Asian Journal of Surgery Volume 38, Issue 4, October 2015, Pages 214-219] explains about the treatment for hemorrhoidal disease aims to provide a long-term relief from present symptoms and complaints, especially pain. Another important aim is to increase the quality of life. These aims can be achieved through a dependable surgical technique and preservation of anorectal functions.
· Pain after surgery for hemorrhoids is a major worry. In order to reduce the postoperative pain, various excision techniques have been proposed. The article ‘Clinical Outcome Following Hemorrhoid Surgery: a Narrative Review’[ Indian J Surg. 2015 Dec; 77(Suppl 3): 1301–1307] the study on comparing different excision techniques viz harmonic scalpel hemorrhoidectomy, bipolar scissors hemorrhoidectomy, and regular scissors. The study showed that the harmonic scalpel was superior to the other methods in terms of postoperative pain and, consequently, patient satisfaction. Harmonic scalpel was confirmed to be superior with respect to bipolar electrocautery in two other trials.
· Postoperative hemorrhage, retention of urine is a relatively common complication. Rarely anal stenosis. Sepsis after surgery for hemorrhoids is uncommon. Tenesmus, frequency, and fecal urgency are variably associated with hemorrhoid surgery and are usually transient and self-limiting.
· The Standard text book Miller's Anaesthesia (5th Ed) states that:
"Abnormal Liver enzyme test results may be seen in up to 4% of normal individuals and 36% of psychiatric patients, although the prevalence of clinically significant hepatic dysfunction in these individuals is less than 1%, thus suggesting that further costly preoperative testing is unnecessary in asymptomatic patients".
We would like to rely upon the precedent of the Hon’ble Supreme Court in Jacob Mathew vs. State of Punjab & Anr[(2005) 6 SCC 1] that simply because a patient has not favorably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable. It further observed that:
“A mere deviation from normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere accident is not evidence of negligence. So also an error of judgment on the part of a professional is not negligence per se. Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure.
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So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure.
No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career.
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The Hon’ble Supreme Court in the case S. K. Jhunjhunwala vs. Dhanwanti Kaur and Another[(2019) 2 Supreme Court Cases 282] held that in every case where the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed that the medical professional was negligent. It further observed in its paragraph 42 as below:
In our opinion, there has to be a direct nexus with these two factors to sue a doctor for his negligence. Suffering of ailment by the patient after surgery is one thing. It may be due to myriad reasons known in medical jurisprudence. Whereas suffering of any such ailment as a result of improper performance of the surgery and that too with the degree of negligence on the part of Doctor is another thing. To prove the case of negligence of a doctor, the medical evidence of experts in field to prove the latter is required. Simply proving the former is not sufficient.
Recently in the case of Dr. (Mrs.) Chanda Rani Akhouri & Ors. vs Dr. MA Methusethupathi & Ors.[ 2022 LiveLaw (SC) 391], it was observed that:
it clearly emerges from the exposition of law that a medical practitioner is not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another.
In the case of Dr. Laxman Balkrishna Joshi v Dr. Trimbak Bapu Godbole[ 1996) 1 SCR 206], it was held that if a doctor adopted a practice that is considered “proper” by a reasonable body of medical professionals who are skilled in that particular field, he or she will not be held negligent only because something went wrong. Doctors must exercise an ordinary degree of skill. In Achutrao Haribahau Khodwa and Ors. Vs. State of Maharashtra and Ors.[ MANU/SC/0600/1996], the Hon’ble Supreme Court noticed that in the very nature of medical profession, skills differ from doctor to doctor and more than one alternative course of treatment is available, all admissible. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. In Hucks v. Cole[(1968) 118 New LJ 469], Lord Denning observed that a medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
Considering the entirety, we do not find any deviation from standard of practice of the OP-1 and OP-2. The patient was examined and investigated properly. The patient was operated after an informed consent under saddle block with HSH as prescribed in the standard textbook. We find there were no lapses in preoperative and post-operative care. The patient was administered with IV fluids, antibiotics, analgesics and given supportive treatment. It should be borne in mind that treatment of every disease is associated with risk and complications. It does not signify negligence or deficiencies in the services rendered by the doctor(s). Typographical mistakes occur inadvertently, same cannot be construed as negligence or deficiency. The opinion of Medical Board and Maharashtra Medical Council also did not find negligence of OP-1. We, therefore, based on the foregoing discussion, do not find any negligence or failure of duty of care attributable to the treatment given by the Opposite Parties.
The Complaints fails, hence dismissed.
The Parties to bear their own costs.