The medical law reporter for Indian Doctors
Advertise with Medknow
Click here to view April 2016 issue as eBook Small font sizeDefault font sizeIncrease font size Print this article Email this article Bookmark this page
 


 

 
     
    Search
 

 
 
     
  
    Add to My List *
* Registration required (free)  


    Suggested precautions
    Facts of the case
    Patient's allega...
    Doctor's defense
    Findings of the ...

 Article Comments
    Comments [Add]    

Recommend this journal

 


 
Table of Contents   
Year : 2009  |  Volume : 2  |  Issue : 6  |  Page : 65
Compensation of one crore - Supreme Court raises benchmark

 
   Suggested precautions 
  1. Before agreeing to perform any procedure/surgery, you must be 100% sure that the same is within your area of expertise. In case of doubt, it is essential that the patient must be referred to consultants/surgeons who according to medical science may be competent to perform the procedure/surgery and their opinion must be obtained in writing. The aforesaid exercise must be duly recorded. (In the instant case, the patient's allegations were that he ought to have been referred to a neurosurgeon for opinion before surgery and a neurosurgeon ought to have been present during the surgery.)
  2. In appropriate cases, consultants whose help may be required during the surgery/procedure must be kept present in the OT.
  3. In case a surgery/procedure is postponed at the patient's request and the consequences thereof could be unfavorable, it is advisable to obtain the patient's request in writing and also to record the reasons in the medical records.
  4. Carry out appropriate preoperative tests.
  5. Opinion of the appropriate consultants must always be taken, especially in serious cases.
  6. In legal proceedings, failure to produce medical records is bound to result in an adverse order.
  7. Meeting or at least informing the anxious attendants/relatives of the patient after a procedure/surgery is the minimum courtesy expected from a doctor.
  8. Every doctor/hospital is bound to give copies of medical records to the patients within 72 hours of any such request.



   Facts of the case Top


The patient, a 20-year-old engineering student, visited the hospital (OP1) as the cause of his fever could not be identified. X-ray revealed a mass in the left hemithorax, with posterior mediastinal erosion of the left 2nd, 3rd and 4th ribs. Fine needle aspiration cytology (FNAC) under ultrasound guidance was attempted several times but did not give any useful information regarding the nature of the mass. Another attempt under CT guidance also failed. Hence the patient was referred to a cardiothoracic surgeon (OP2) for an excision biopsy. But the entire tumor was excised. Immediately after the surgery the patient developed acute paraplegia with complete loss of control over the lower limbs, possibly due to damage to the intercostal blood vessels. The patient was discharged from the hospital (OP1) after 7 months, completely paralyzed and with no improvement in his sensory deficit.


   Patient's allegation/s of medical negligence Top


  • It was alleged that preoperative diagnostic investigation had not been properly carried out. After four futile attempts at needle biopsies, the existence of the tumor would have been revealed if MRI, a noninvasive diagnostic modality (especially for vascular lesions), along with myelography to confirm the intraspinal findings, had been conducted by an experienced radiologist.
  • It was alleged that surgery on a neurofibroma or a schwannoma has neurological implications and warrants the involvement of a neurosurgeon. It was alleged that preoperative examinations had revealed a situation which required the intervention of a neurosurgeon. This proposition was supported by authoritative medical texts. Admittedly, neurosurgeons' opinion was not sought before the surgery nor was any neurosurgeon involved in the surgery.
  • It was alleged that the complications which could possibly result from an excision biopsy had not been spelt out to the patient prior to the procedure. It was also alleged that though consent was taken only for excision biopsy which was an exploratory procedure, but the cardiothoracic surgeon (OP2) had carried out a complete excision, removing the entire tumor mass and damaging the intercostal blood vessels leading to paraplegia.



   Doctor's defense Top


  • It was stated in defense that further investigation by MRI was not necessary as sufficient information about the extent of the tumor had already been revealed by the other investigations. It was stated that the possibility of an undetermined malignancy had to be examined and hence excision biopsy of the mass was carried out to determine the nature of the mass and plan the future course of action.
  • It was stated that the patient had been properly referred to a cardiothoracic surgeon (OP2) as the tumor was situated in the thorax. It was stated that as the tumor did not have any intraspinal extension, the presence of a neurosurgeon was not required. It was stated that vertebral erosion was revealed only during the operation. It was further stated by the cardiothoracic surgeon (OP2) that had he known preoperatively about the extension of the tumor into the intervertebral foramina, he as a cardiothoracic surgeon, would not have chosen to deal with it himself.
  • It was stated that the extent of the tumor was revealed only after opening the thorax and it was decided to excise the entire tumor as the 4th rib had been eroded. Moreover, even benign tumors can cause several medical complications and endanger a patient's life and can, besides, also turn malignant at a later stage; it was therefore thought fit to remove the tumor along with the involved ribs.
  • It was stated that the parents had consented for the surgery after they had been fully informed about all possible risks.



   Findings of the court Top


  • The court observed that diagnostic tests like MRI and myelogram were necessary as they would have provided information preoperatively on the extension of the mass into intervertebral foramina; this information would have brought the neurosurgeon in as the prime surgeon and the paraplegia could perhaps have been avoided. The court therefore held that complete preoperative investigations had not been carried out.
  • The court held that though the cardiothoracic surgeon (OP2) was competent to perform the surgery, he made a serious error in not involving a neurosurgeon at the preoperative stage as well as during the operation.
  • The court referred to the preoperative discharge record, wherein there was a clear reference to a mass lesion in the left upper chest with erosion of ribs and vertebrae. The court observed that this belied the defense of the cardiothoracic surgeon (OP2) that the erosion of vertebrae had been revealed for the first time during surgery. The court also took note of the fact that a neurosurgeon (OP3) had, in fact, been called into the operation theater (OT) at a late stage. The court referred to the three texts produced by the patient that pointedly refer to the fact that when there is a tumor in the posterior mediastinum, the possibility of extension of the tumor into the vertebral foramina and the vertebral column must be kept in mind and a neurosurgeon must be associated with the diagnosis and the actual operation. Hence the court held the cardiothoracic surgeon (OP2) negligent.
  • The court found that the purported written consent which had been taken was not bought before the court. The court further observed that consent given for excision biopsy cannot be taken as an implied consent for removal of tumour. The court therefore held that there was no consent.
  • The court drew adverse inference from the fact that the copy of the discharge record produced in court varied from the original discharge record and also from the fact that both the cardiothoracic surgeon (OP2) and the neurosurgeon (OP3) left the OT without meeting the anxious parents of the patient waiting outside.
  • The court observed that the compensation was computed in this case keeping in mind the fact that a brilliant career had been cut short and that there was no possibility of improvement in the patient's condition. The court observed that the compensation would ensure a steady and reasonable income for the patient as he would be unable to earn for himself. The court ordered a total compensation of Rs. 1,00,05,000 (Rs. 1 crore 5 thousand) which was rounded off to Rs. 1 crore computed as follows:

    • Rs. 7.2 lakh for a driver cum attendant for the patient, at Rs. 2,000/- per month for 30 years.
    • Rs. 14.40 lakh for nursing care etc., as the patient would be unable to perform even his daily ablutions without assistance, at Rs. 4,000/- per month for 30 years.
    • Rs. 10.80 lakh for physiotherapy at Rs. 3,000/- per month for 30 years.
    • Rs. 25 lakh for medical aid, which would involve expensive medicines and other material.
    • Rs. 25 lakh for loss of future earnings etc.
    • Rs. 10 lakh for the pain and suffering that the patient had undergone.


  • The court rejected the patient's claim for Rs. 2 crore to be deposited in his name and to be utilized by him in case some developments in the medical field would make it possible for him to undergo further treatment so as to improve his quality of life. The court felt that this was unjustified and hypothetical and was therefore declined.
  • Hence the hospital and the doctors (OPs) were held negligent.



 

Top