RAJKUMARI vs R. Singh

P class="subparagraph">Anaesthesia negligence involves complex anatomical structures, metabolic parameters and medication analysis. Injuries sustained as a result of negligent administration of anesthesiology or lack of proper monitoring often require extensive medical treatments, and can affect an injured patient for the rest of their lives.

THE present First Appeal has been filed under Section 19 of the Consumer Protection Act, 1986 by the Appellant/Complainant against the order dated 22.4.2010 in Consumer Complaint No. 39 of 2003 passed by the State Consumer Disputes Redressal Commission (hereinafter, ''State Commission''), Chhattisgarh who dismissed the complaint. The relevant facts in brief that, the complainant, Smt. Rajkumari (patient) underwent caesarean section (LSCS) delivery on 15.6.2001 and a healthy male child was born. She was operated by Dr. (Smt.) R. Singh, a gynaecologist in association with Dr. S.G. Dandekar, as anesthetist. The complainant alleges that the consent for the LSCS was given under pressure from OP. She remained admitted in the hospital till 21.6.2001. After operation when the complainant regained unconscious, she felt numbness in her right leg for which she told the OPs, who assured that at times, such things happen and she will be allright after 2 -4 months. The OP -1 advised few medicines and also suggested the complainant to meet her husband, Dr. Surjeet Singh, who was an Orthopaedic Surgeon. Despite the medicines and the special shoes, as advised by Dr. Surjeet Singh, there was no improvement. Hence, she went to OP -1 again in December, 2001, but the OP 1 refused to treat her any further. Thereafter, the complainant took treatment from different hospitals like at NTPC Hospital by Dr. Nand, and at MMI Hospital, Raipur, where EMG test was conducted. The doctors at MMI Hospital advised another surgery but due to financial incapability, she could not opt for the further treatment. The treating doctors opined that the deformity and numbness in her right leg was due to negligence in administering anesthesia and conducting cesarean section by OPs. The complainant''s main allegations against OPs that: (i) Dr. Dandekar, Anesthetist administered anesthesia in excess quantity without examining the complainant, and thereafter

(ii) OP No. 1 operated the complainant in a wrong manner.

Hence, the complainant has suffered disability and numbness in right side of her lower limb thereafter, she is unable to walk properly. Thus, all these have resulted due to wrong treatment of the complainant by OP Nos. 1 and 2.

Therefore, the complainant approached the State Commission and filed a complaint against the OP and claimed total sum of Rs. 7 lakh inclusive of compensation for physical disability and mental harassment.

The State Commission after hearing both the parties and taking into consideration the evidence, the expert witnesses, dismissed the complaint.

AGAINST the order of State Commission, the complainant filed this first appeal. I have perused the medical records, evidence and heard the Counsel for both the parties. The Counsel for the complainant/appellant vehemently argued at length. He submitted that the complainant was a illiterate lady having four normal previous deliveries contacted the OP 1 who without considering proceeded for LSCS. There was negligence on both the OPs. Also, submitted that the consent was taken with due influence upon the complainant and forced the complainant for LSCS operation, the OP -1 Dr. R. Singh operated the Complainant in a wrong manner and Dr. Dandekar, Anaesthetist administered anaesthesia in excess quantity without examining the Complainant which damaged the spinal cord and resulted into numbness of the right leg, further she has suffered disability and she is unable to walk properly. He further submitted that there is disparity between the dates of expert opinion which were filed at too late stage. The cross -examination of Dr. Priti Niranjan took place on 18.10.2005 while the expert opinion was filed on 5.3.2007 i.e. almost after 1 1/2 year. This amounts to improvement. He further submitted that another expert Dr. R.K. Dubey, was also examined. Both the experts have opined without verification of any medical document. There was a deliberate effort to conceal the bed head tickets and the anesthetic details. No preanesthetic checkup was conducted by OP -2, the anesthetic notes were put behind the Consent form, which the OP -2 wrote it afterwards.

THE Counsel for OP/Petitioner submitted that, there is no direct relation between LSCS operation and numbness of right leg of complainant. The Counsel further relied on the certificate issued by an experienced doctor Dr. Priti Niranjan that ''during caesarean operation no injury to any nerve occurs which will cause parasthesia to lower limb''. The learned Counsel for the OP -2, relied upon the opinion of Dr. K.P. Dubey, Professor and Head of Department of Anaesthesiology, Pt. Jawahar Lal Nehru Medical College and B.T.A.M. Hospital, Raipur, who observed that, it was proper dose administered for Spinal Anaesthesia on the patient, hence it cannot be said to be overdose. There was no negligence on part of Anaesthetist. There are various causes of "foot drop", and it was an unfortunate complication in this patient. Relevant portion of opinion of Dr. K.P. Dubey is reproduced herein below: "(a) The dose of Inj. Xylocain 5% heavy 1.5 ml. given to Pt. Smt. Rajkumari W/o Arjun weighing 92 kg. for spinal anaesthesia is a proper dose and not an over dose. Spinal anaesthesia for LSCS operation is most preferred, universally practises and quite safe anaesthesia.

(b) Neurological injury associated with labour is not uncommon and majority of nerve injuries are intrinsic obstetric palsies and are not directly related to spinal anaesthesia. Post partum neuritis or paresis due to nerve injuries can occur by several mechanisms such as compression, stretch, transaction or vascular injury and may present as "foot drop" or may be due to inherent neuropathy, it can cause foot drop although it is rare complication but can seldom occur. It could manifest due to following reasons:

Pressure of foetal head on lumbosacral trunk.

Peroneal nerve injury and Postpartum obturator nerve syndrome - -Commonest mechanism is external compression particularly use of stirrups or in women in prolonged pushing (straining down to facilitate descend of baby) during labour with knees hyper flexed and grabbing it tightly applying pressure on lateral aspect of leg.

Stretch injury to sciatic nerve due to lithotomic position of the patient during labour and obesity can further enhance external pressure and stretch to nerve trunks.

Foot -drop following spinal anaesthesia is very rare and may occur in less than 1:10,000 cases in best of hands.

I have gone through the medical literature submitted by the Complainant namely: . Practice of Anaesthesia;

. Encyclopaedia of Clinical Toxicology

. Literature on Drug benefits and Risks

. Literature on Clinical Anaesthesiology;

. Literature on Pharmacotherapy.

AFTER going through the medical literature, the evidence on record, the case sheet of patient, in my view; the complainant was 92 kg weight, the EDD (Expected date of delivery) was 8.6.2001, the USG study on 11.6.2001 was revealed the baby''s weight was 3.9 kg. The OP examined patient on 15.6.2001 revealed that there was no engagement of head despite cervix dilated about 3/4th, hence the decision for emergency LSCS was taken. After pre -anaesthetic checkup and proper informed consent the OP -2 administered proper dose of anaesthesia inj. 5% heavy 1.5 ml (75 mg) via drip. Hence, it was not an overdose considering the weight of patient as 92 kgs. This view was supported by the expert onion of Dr. K.P. Dubey and Dr. Priti Niranjan. Hence, it was as per normal reasonable care, and professional skill. It is also pertinent to note that, "foot drop" is possible in 1 in 10000 cases. It appears to me that, in this case the appellant/complainant filed this appeal on presumptions that, her previous deliveries were normal, therefore, the fifth should be normal one. Even, the consent was not taken by force, because the LSCS operation is necessary to save life of child and mother as well. Hence, it was a valid consent. The OP -2 submitted that there was no continuation sheet available in OT in door case sheet, and hence he put the anaesthesia notes on the back of consent form. In my opinion it was not a blunder; the notes did not show any overwriting or any tampering. It was not negligence, but if the OP -2 fails to write any notes, it would have amounted to negligence. The OP relied upon the judgment of this Commission in the case Mrs. Shantaben Muljibhai Patel and Others v. Breach Candy Hospital Research Centre, I (2005) CPJ 10 (NC) where it was held that inference of deficiency cannot be drawn simply because something goes wrong. Specific proof of negligence and deficiency in service is a mandatory requirement for initiating any action against the doctor. The Complainant did not lead any evidence of any expert opinion to prove her allegation.

THE jury in the action of Hatcher v. Black and Others, (1954) Times, 2nd July, the Trial Judge said: "In the case of an accident on the road, there ought not to be any accident if everyone used proper care and the same applies in a factory; but in a hospital, when a person goes in who is ill and is going to be treated, no matter what care you use there is always some risk. Every surgical operation involves risks. It would be wrong, and indeed bad law, to say that simply because a misadventure or mishap occurred, thereby the hospital and the doctors are liable. Indeed it would be disastrous to the community if it were so. It would mean that a doctor examining a patient or a surgeon operating at a table, instead of getting on with his work, would for ever be looking over his shoulder to see if someone were coming up with a dagger. For an action for negligence against a doctor is for him like unto a dagger. His professional reputation is as dear to him as his body, perhaps more so, and an action for negligence can wound his reputation as severely as a dagger can his body. You must not, therefore, find him negligent simply because something happens to go wrong, as for instance, if one of the risks inherent in an operation actually takes place or because some complications ensue which lessen or take away the benefits that were hoped for, or because, in a matter of opinion, he makes an error of judgment. You should only find him guilty of negligence when he falls short of the standard of a reasonably skilful medical man."

In the case of Roe and Woolley v. The Ministry of Health and an Anaesthetist,, (1954) 2 All ER 131, which went to the Court of Appeal, it was held that neither the anaesthetist nor any other member of the hospital staff had been guilty of negligence and when delivering his judgment Lord Justice Denning said: "Every surgical operation is attended by risks. We cannot take the benefits without taking the risks. Every advance in technique is also attended by risks. Doctors, like the rest of us, have to learn by experience; and experience often teaches in a hard way."

Finally, it is observed that vital question is always whether the practitioner exercised reasonable skill and care in the circumstances. The circumstances inevitably vary from case to case.

SINCE the present case is based upon an allegation of deviation from ordinary professional practice, it is worth to quote the Scottish case Hunter v. Hartley, 1955 SC 200, in which Lord President Clyde, held: "In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care."

He also laid down the following requirements to be established by the patient to fasten liability in case of negligence committed by a doctor:

"To establish liability by a doctor where deviation from normal practice is alleged, three facts require to be established. First of all it must be proved that there is a usual and normal practice; secondly it must be proved that the defender has not adopted that practice; and thirdly (and this is of crucial importance) it must be established that the course, the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care. There is clearly a heavy onus on the pursuer to establish these three facts, and without all three, his case will fail."

IN Achutrao Haribhau Khodwa v. State of Maharastra, : I (1996) CLT 532 (SC) : IV (2006) CPJ 8 (SC) : 1996 (2) SCC 634, Hon''ble Supreme Court held: "The skill of medical practitioners differs from doctor to doctor. The nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the Court finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence. In cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in torts would be maintainable."

Thus the complaints/appellant failed to prove his case by any cogent evidence about the excessive dose of anaesthesia or the LSCS operation itself caused damage to the nerves which led to the numbness and further neurological symptoms in the complainant''s right leg. After going through extensive medical literature, the hospital indoor sheets, other documents and the judgments of this Commission and Hon''ble Supreme Court, I am of opinion that there is no apparent error which needs any interference in the well -considered order of State Commission. Accordingly, this first appeal is dismissed. The parties are directed to bear their own costs.