Case Study – Failure to diagnose/wrong diagnosis amounts to Medical Negligence

Case Study – Failure to diagnose/wrong diagnosis amounts to Medical Negligence

By Mohit Popli

Advocate

Contents: This article also contains the Arguments addressed by the Parties, Case Laws Referred with Medical Literature

Rajmal Singh & Others Versus Dr. Madhu Gupta  & Others

Decided on 8^th May 2014 By NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION IN ORIGINAL PETITION No. 207 OF  2000

  

 Intro:

The Complaint was filed in the year 2002, by Rajmal Singh, and his 5 minor sons. It was alleged that due to negligence of the Dr. Madhu, of Navjeevan Hospital, and Dr. Atul Aggarwal, of Shivam Hospital, Smt. Krishna Singh, wife of Complainant died. She died during the pendency of this case.
"That the incisional strangulated hernia is easily diagnosable by the patient’s symptoms and signs. At, first instance, in the month of May 1999, the patient was examined by Dr. Madhu, having acute abdominal pain. Again, on 14.08.1999, patient was presented with acute abdomen with sweating and vomiting. She has relied entirely upon the USG report. Even, by Per vaginal (PV) examination, she concluded as a case of torsioned ovarian cyst.

Hence, it is a case of failure to diagnose/wrong diagnosis."

Facts:

 Mrs. Krishna Singh, (herein referred to as, “Patient”) was suffering from abdominal pain, she was told by some doctors about the removal of uterus. Hence, in May 1999, she visited Dr. Madhu Gupta  who advised her ‘not to worry and that there was no need, for the present, for removal of uterus (Hysterectomy) and advised medication. Thereafter, again on 14.08.1999 she, with her son visited at Navjeevan Hospital  due to severe stomach pain. After performing ultrasound of lower abdominal at Shivam Nursing, reported as “possibility of Twisted Ovarian mass cannot be entirely ruled out sonographically and needs to be investigated further. Dr. Madhu Gupta admitted her for observations, administered painkillers, IV fluids and discharged her on the same evening. Severe pain again started at 1.00 AM of 15.08.1999, the patient was again admitted to Navjeevan Nursing Home at 6 am. Dr. Madhu Gupta, on examination insisted to perform urgent surgery, but the Mrs. Krishna Singh did not consent to the same. He left his wife in the care of the aforesaid doctor, along with his minor son, and went to Meerut to bring his mother-in-law, but on his return in the evening, he was surprised to know that the said doctor had operated his wife at 2 PM, who,landed her in an extremely serious condition. Dr. Madhu Gupta, in collusion with Dr. Atul Aggarwal, performed operation, without anybody’s consent, it was performed in the Labour Room at Navjeevan Nursing Home, without having any proper facilities, hence, developed septicemia and became more critical. Hence, on the same evening, at 11 p.m., the patient was shifted to ICU at Shivam Hospital. She was in ICU, kept on ventilator in Shivam Hospital, from 16.8.1999 to 10.09.1999. As, there was no improvement at Shivam Hospital, the patient, shifted his wife to Batra Hospital, New Delhi on 10.9.1999. Unfortunately, after 10 days, on 20.9.1999, she expired due to septicemia. The death summary dated 20.9.1999 confirmed that there was overwhelming sepsis with MODS. The patient, sought entire medical records from Dr. Madhu, through his letter dated 14.02.2000, but there was no response. Complainant alleged negligence on Dr. Madhu Gupta to Shivam Hospital, that the death of his wife was due to the surgery which was done unnecessarily, the diagnosis was wrong; operation was performed in labour room, without any consent.

Prayer: Complainant prayed for compensation of Rs.24,79,453/-, along with interest @ 24% per annum, from the date of filing of this complaint. Also, prayed for interim directions to produce medical records and to appoint a local commissioner to examine labour room of Navjeevan Nursing Home.

          

Defence taken by the Opposite Parties:

They have denied any negligence or lapses on their part during diagnosis, operation and post-operative management. The death occurred due to septicemia after about 1 month at Batra Hospital, hence they should not be held liable, and prayed for dismissal of complaint.

Dr. Madhu Gupta, submitted that, the patient was examined by her in the month of May 1999 during consultation. The patient had got herself examined elsewhere, and produced 2-3 ultra sound reports and on OPD papers of other doctors advised her hysterectomy for a tumor in the uterus. Dr. Madhu Gupta, carefully examined the patient, which revealed that the patient had a small mass in the left fornix (ovarian cyst) with normal size uterus. Hence, She advised her of no necessity for any surgery, immediately, however cautioned her that, she may have to undergo an operation in case the size of the ovarian cyst increases or if there is any twisting of the cyst or if there arises any menstrual problem leading to acute pain.  

Treatment Given: On 14.08.1999, Patient said that she had acute abdominal pain; her husband brought her to Dr. Madhu Gupta. After examination, Dr. Madhu Gupta treated her by IV fluids and by analgesics and discharged her on same day. Since the patient was not in a condition to move, a portable ultrasound machine from Shivam Ultrasound Centre was arranged .The ultrasound was performed and it revealed, that the “possibility of Twisted Ovarian mass cannot be entirely ruled out sonographically and needs to be investigated further”  Again, on the next day, i.e. 15.08.1999, patient’s husband brought her to Navjeevan Nursing Home, nursing home, at 6 am in serious condition, with complaints of severe abdominal pain, sweating and vomiting. The patient and her husband insisted Dr. Madhu Gupta to do surgery to relive her pain. Thereafter, her husband without botheration, left her, all alone, in the nursing home, under the care and custody of Dr. Madhu at Navjeevan Nursing Home. Meanwhile Dr. Madhu carried out all necessary investigations, blood tests and thorough physical examination of the patient. Despite painkillers and intra venous fluids, condition of the patient was not stabilizing and she continued to be in deep pain, agony. Dr. Madhu sought assistance of Dr. Atul Aggarwal, after going through previous history and USG report; they arrived at a conclusion, that the patient had a twisted ovarian cyst, which warranted for an emergency laparotomy operation. As, further delay could prove fatal for the patient, Dr. Madhu Gupta and Dr. Atul Aggarwal, took a bonafide decision and proceeded for the surgery, without waiting for the relatives to give their consent. According to Opposite Parties, they have acted, as per medical ethics, hence no negligence.  

Submissions Made By Doctor:

They submitted that, while performing the operation, it was found that the patient had a strangulated hernia.  Mere physical examination or by carrying the investigatory tests, it was not possible, for Dr. Madhu or for any other qualified medical practitioner, to have detected and diagnosed a strangulated hernia. On further examination, it was aggravating in nature, which demanded emergent care, therefore, the hernia was cured and the said operation was performed by Dr. Atul Aggarwal, who is a qualified General Surgeon, duly experienced and competent to perform such emergency operations. Therefore, it was farsightedness and bonafide attempt by the Opposite Parties, which saved valuable time. The operation was successfully performed; the condition of the patient was improved, after the operation. Some post-operative complications are normal and do take place, generally. Dr Madhu submitted that during post-operative stage, patient had some respiratory discomfort, for which, she was provided oxygen support. However, Dr. Madhu and Dr. Atul Aggarwal, after clinical assessment, suspected that she may land up in endo-toxic shock and associated complications. Therefore, the patient was advised to be shifted to Shivam Hospital and Heart Centre on 16.08.1999, at 8.00 p.m., for further post-operative care and treatment. Hence, on the same evening, at 11 pm, the patient was shifted to ICU at the Shivam Hospital, and in ICU, she was kept on ventilator and her treatment was continued up to 10.09.1999. However, on 10.09.1999, at the request of the Complainant/husband, the patient was discharged from the Shivam Hospital; however, the patient and the Complainant were duly explained of the consequences of shifting her to another hospital. Thereafter, her husband shifted her to Batra Hospital, wherein she died on 20.09.1999.

Hence, Dr. Madhu and Dr. Atul Aggarwal submitted that there was no nexus between the performance of the operation by them and the death of the patient at Batra Hospital. At the Shivam Heart Care Center (SHIVAM HOSPITAL), the patient had shown signs of improvement, and was able to perform all her normal activities, on her own.

The patient had not expired due to septicemia, resulting from the operation, performed on 15.08.1999, but expired, after a long gap, of more than a month, from the date of the operation, due to multiple causes.

Dr. Madhu Gupta further submitted that all the treatment, as detailed above, was offered by her, at free of cost and on humanitarian grounds. Dr. Madhu Gupta further submitted that her nursing home (Navjeevan Nursing Home), has well, past record of successfully performing various minor and major operations. Therefore, there is no negligence by Dr. Madhu Gupta and Dr. Atul Aggarwal, in treating the patient and during the postoperative care.

Points of Arguments:

Complainant Side:

The counsel for complainant stressed the point that,  “The Dr. Madhu has conducted the operation, without consent, which resulted in septicemia and death, was due to consequences of unhygienic hospital/labour room conditions of Navjeevan Nursing Home. The Opposite Parties are negligent, who have not followed the standards of medical practice. The counsel for the complainant brought the attention of Hon’ble National Commission to the letterhead of Navjeevan Nursing Home which describes Navjeevan Nursing Home, as a Centre of family planning procedures. Also, submitted few medical literatures on the subject of Diagnosis of Incision Hernia, the Septicemia shock. The Counsel for the Complainant relied upon few Judgments of Hon’ble Supreme Court, which are as follows:

a)    V. Kishan Rao Vs. Nikhil Super Speciality Hospital & Anr (2010) 5 SCC 513.

b)    Cipla Limited Vs. Commissioner of Central Excise, Bangalore (2010) 5 SCC 534.

c)    Ramesh Chandra Agrawal Vs. Regency Hospital Limited & Anr (2009) 9 SCC 709.

d)    PGIMER Vs. Jaspal Singh And Others (2009) 7 SCC 330.

e)    Savita Garg (Smt.) Vs. Director, National Heart Institute (2004) 8 SCC 56.

Arguments Made By Opposite Parties:

The counsel for Dr. Madhu Gupta vehemently argued that the Navjeevan Hospital has got good reputation, fully equipped and was having facilities to conduct major and minor surgeries. Hence, totally denied that the operation was performed in the labour room. The Counsel brought attention of the Hon’ble National Commission to the office copy, having performed operations, from July 1992 to December 1999;. He argued that both the Opposite parties acted as per standards of medical practice, during the course of diagnosis, operation and follow up. Hence, there was no negligence.

 Arguments were further advanced on the point of “No Consent”. The counsel submitted that it was due to the careless attitude of the husband of patient, who left her in the hands of Dr. Madhu, without any attendant/family member. When, the condition of the patient critically aggravated, the Opposite Parties performed the emergency exploratory laparotomy operation, without waiting for Consent. It was done, in good faith of the patient and to protect her life. It was performed for therapeutic and diagnostic purpose. During surgery, it was found that the patient had strangulated hernia, which was not possible to diagnose earlier physical examination or by any other investigations or with the symptoms of the patient. The hernia was repaired by Dr. Atul Aggarwal with due care and precautions. Counsel submitted that due to the operation patient was saved from the pre-operative shock  He further argued and denied that the said operation was a cause for Septicemia, which ultimately resulted into the death of the patient/deceased. There is no nexus between the performance of the operation and the death of the patient. In fact, the patient unfortunately expired, after a long gap, after performance of the operation due to multiple causes. The Counsel further contended that, her condition might have deteriorated further at the Batra Hospital, who failed to take proper care of the patient, hence developed the fatal conditions, like Pyopneumothorax, ARDS and MODF. It was the Complainant/Husband of patient who acted in collusion with the Batra Hospital. The Batra Hospital has not been impleaded as a party, who, in order to hide their own acts of negligence and misconducts. Hence, Opposite Parties could not be held responsible.

To prove his contentions ,the counsel for Opposite Parties brought the attention of Hon’ble National Commission to  Dr. Kadam’s Expert opinion  dated 6.2.2012, produced an extract from Bailey and Love’s Text book of Surgery, 12^th edition, page 1078 and Farquahrson’s Textbook of Operative Surgery. He relied upon several judgments of Hon’ble Supreme Court namely;

                     i.        State of Punjab Vs. Raj Rani (2005) 7 SCC 22.

                    ii.        State of Punjab Vs. Shiv Ram (2005) 7 SCC 1.

                   iii.        INS. Malhotra Vs. Dr. Prabha Manchanda (2008) 4 SCC 705.

                  iv.        Martin F D’Souza Vs. Md. Ishfaq (2009) 3 SCC 1.

                    v.        Samira Kohli Vs. Dr. Prabha Manchanda (2008) 2 SCC 1.

                  vi.        C. P. Sreekumar Vs. S. Ramanujan (2009) 7 SCC 130.

                 vii.        Jacob Mathew Vs. State of Punjab  (2005) 6 SCC 1

Findings:

It has been held and discussed by the Hon’ble National Commission that “It is surprising and beyond our imagination that How, a qualified Sonologist has failed to diagnose, Hernia? his USG report dated 14.08.2000, is also erroneous one. It appears that mind of OP-1 was a prejudiced, hence she repeatedly diagnosed the patient as, “Torsion Ovarian Cyst” instead of Strangulated Hernia.

Question Arises :  

Whether, there is any difficulty in diagnosing case of Hernia Clinically, especially, Strangulated Incisional Hernia?

Whether, a normal, reasonable MBBS doctor/Gynecologist /Surgeon can miss to diagnose hernia and Torsion ovarian cyst?

Medical Literature-Diagnosis of Hernia:

To ascertain, whether the diagnosis of incisional/ strangulated hernia is difficult, Hon’ble National Commission referred to standard medical books on operative surgery, and medical literatures,. The relevant extracts are reproduced below:

        HERNIA–Signs and Symptoms

A hernia is “the protrusion of an organ, organic part, or other bodily structure, through the wall that usually contains it.”

Most hernias are diagnosed by the presence of a bulge in the abdominal wall. A physical change occurs in a patient's habitus. These persons usually have little discomfort or pain, unless the hernia is incarcerated or strangulated. However, a close review of their history will reveal that many persons with hernia have experienced vague pain or discomfort, particularly with physical activity.

        Diagnosing an Incisional Hernia

Incisional hernias happen after an abdominal surgery and may seem to appear and disappear, which is referred to as a "reducible" hernia. The hernia may not be noticeable, unless the patient is involved in an activity that increases abdominal pressure, such as coughing, sneezing, pushing to have a bowel movement, or lifting a heavy object.

The visibility of a hernia makes it easily diagnosable, often requiring no testing outside of a physical examination by a physician. The physician may request that you cough or bear down in order to see the hernia while it is "out".

Routine testing can be done to determine which area of the body is pushing through the muscle. If the hernia is large enough to allow more than the peritoneum to bulge through, testing may be required.

When is, Incisional Hernia, an Emergency?

A hernia that gets stuck in the obstructed position is referred to as an incarcerated hernia. While an incarcerated hernia may not be an emergency, medical care should be sought, as it can become an emergency, quickly.

Thus, it is clear that the incisional strangulated hernia is easily diagnosable by the patient’s symptoms and signs. At, first instance, in the month of May 1999, the patient was examined by Dr. Madhu, having acute abdominal pain. Again, on 14.08.1999, patient was presented with acute abdomen with sweating and vomiting. She has relied entirely upon the USG report. Even, by Per vaginal (PV) examination, she concluded as a case of torsioned ovarian cyst.

Hence, it is a case of failure to diagnose/wrong diagnosis. It is pertinent to note that, at the first instance itself, in May 1999, the patient’s abdominal pain was not properly assessed Opposite Parties. There might be possibility of incisional obstructed hernia at that time. Subsequently, there was recurrence on 14.08.2000, which further progressed to obstructive/ incarcerated hernia and finally presented as Strangulation, on 14-15.08.2000 leading an emergency situation.        

“The Honble National Commission did not agree with the submissions made by Dr. Atul Aggarwal Surgeon, that, the diagnosis of hernia is difficult. It is not a prudent submission. In-fact, as per the literature (supra), it is a spot diagnosis, an ordinary doctor (Surgeon or Gynecologist) can diagnose, without any difficulty. His submission appears to support Dr. Madhu Gupta whose diagnosis was wrong. Hence, it is a deficiency in service.”

Decision and Amount of Compensation:

After the foregoing discussion before the Hon’ble National Commission, it was held that hold Dr. Madhu and Dr. Atul Aggarwal liable for medical negligence as wrong diagnosis and for the surgical management of the patient which subsequently resulted into the death of patient.  Further, the OPs are vicariously liable, due the negligence of Sonologist for wrong USG report. Accordingly, we pass the following order:-

Dr. Madhu Gupta and DR. ATUL AGGARWAL are directed to pay the Complainants/LRs, jointly and severally, a total sum of Rs.10,000,00/- with interest  @ 6% pa from the date of filing of this complaint, till realization. Also, they are directed to pay Rs.30,000/- to the Complainants/LRs, towards the litigation charges. The entire order should be complied within 90 days from the date of receipt of this order; otherwise it will carry further interest @ 9% pa, till its realization.