MD Medicine Dr. fined Rs.41 lakh for doing pleural tapping test without Sonography, that too in Causality section

The Maharashtra State Consumer Disputes Redressal Commission, (MSCDRC) in its recent judgment dated 31/03/2017, gave the verdict against the Doctor, but absolved the Hospital..

Case details – Mr.Prashant Tamhane V/s. P.D. hinduja Hospital and anr. CC No.221 of 2003

Facts in short :
1. This is the case of 2002. The wife (since deceased) of the Complainant was admitted in the Hospital after the blood reports revealed symptoms of hepatitis. There she was examined by Dr.Ashit Hegde, the Opponent no.2 Doctor in the present case. At that time he after examining the patient he thought it fit for not admitting the patient. By taking medication she was improving.
2.However after about one month, she had Chest pain and difficulty in breathing. Initial X-ray was normal, but in later X-ray, she was diagnosed as suffering from pleural effusion.
3. On next day pleural tapping test was conducted by Dr. Hegde in the Casualty ward and the Doctor left. But as the patient complained of giddiness, Doctor was summoned again, but unfortunately she started sinking.
4.The Doctor tacitly admitted that it could have happened due to puncturing of the spleen by needle during tapping.
5. the CT scanning also revealed that the needle had punctured the spleen resulting in spleenic tear and profuse bleeding internally and she took her last breath in the next morning.
6. Thus the Complaint for medical negligence was filed by her Husband for claiming .Rs.87,50,000/-.

Defense :
1. Dr. Hegde refuted all the charges of Negligence. The patient having complex condition with jaundice, alcoholic hepatitis, liver ailment etc..have lesser chances of surviving. the hospital also denied all the charges against it and submitted that as per Post Mortem report, There were multiple Abscesses in the Brain and the Kidneys and generalized septicemia this contributed to the death of the Patient.
2. It was also argued that the Dr. Hegde is well qualified M.D. (Internal Medicine) passed in 1984. Rather the patient was reluctant to get admitted herself.

Held :
1. The Commission after hearing of parties and perusing the record and going through the various case laws on the point of Negligence of Apex Court, reduced the compensation from Rs.87,50,000/ Rs.41,00,000/-.
2.The Commission observed, The courts and the Consumer Fora are not experts in medical science, and must not substitute their own views over that of specialists.
3. It further observed, the entire medical fraternity cannot be blamed or branded as lacking in integrity or competence just because of some bad apples.
4.the Commission raised the query as to why the Process of injecting a needle or puncturing twice of space below chest for Pleural effusion was done casually in the casualty section of the Hinduja Hospital and not in ICU ? Why Sonography was not performed while passing or inserting the needle?
5. This omission on Dr.Hegde’s part is personally blameworthy and punctured Spleen of the Patient did hasten the dizziness, breathlessness and death of the Patient. These facts called for the attraction of well known principle of law i.e. res ipsa loquitur i.e. things speak for itself, and thus No expert opinion was required.
6. The Commission reiterated the “mistake” on part of the Doctor of performing the procedure in casualty section turned to be fatal.
7. Not using Sonography while inserting the needle twice in a case of pleural effusion resulted in puncturing of the spleen which hastened death of Patient.
8. The Commission, in my humble opinion rescued off the Hospital from any liability, as generally Hospitals are held vicariously liable for the Acts of its empanelled Doctors.

How the compensation was ascertained

9. Calling claim of Rs.87,50,000/- as exaggerated & exorbitant, it was also observed that Compensation cannot be a lottery or jackpot for a Patient. As the patient when she died was only 35 years of age and her net annual income was computed to the tune of Rs.4 lakhs and applying the multiplier of 10 (this method is used in motor Accident cases, wherein the formula in simple words can be stated as lesser the age, higher the multiplier. The net annual income X multiplier = compensation. Apex Court in the landmark case of Sarla Verma V/s. Delhi Transport Cor. (2009) 6 SCC 121, has given the table of multiplier), the compensation was calculated at Rs.40,00,000/- and towards Hospital bill and litigation cost, Rs.1 lakh and Rs.25,000/- were awarded respectively, totaling to Rs.41,25,000/-.

This judgment has released shock waves amongst the medical Fraternity. 2 principles which are usually followed, seems not to have been adhered to i.e. 1) Expert Opinion was not called for and, 2) The Hospital was not held liable much less vicariously liable. I am open to correction, but the Multiplier method was not followed by Hon. Apex Court in its landmark judgment of Dr. Kunal Saha’s case. This case is of 2002 and the technology prevailing at that time and as on today might be different and might also be flawless. Some of the medicos are of the Opinion that USG Guided Cannulations and procedures were mandated by NHS since 2006, so can it applied to the case of 2002 ?
Henceforth, the Doctors will have to rethink as to what procedures are to be performed in Casualty section and what not ? and the question still remains, if the procedure is performed in ICU, whether it can lessen the chances of mortality or still it depend upon the facts of each case ?

Adv. Rohit Erande
Pune. ©

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