Sunday, June 5, 2022

Medical Negligence - Error of Judgment in Not Negligence: NCDRC

Medical Negligence NCDRC

A bench comprising of Justice Dr. S.M. Kantikar, Presiding Member, and Binoy Kumar, the Member, has ruled that a simple deviation from standard professional practice is not always evidence of negligence. A simple accident is also not evidence of negligence. A professional’s error of judgement is also not considered negligence. 

Mr. Davis V.C. (‘Patient’) underwent Functional Endoscopic Sinus Surgery (‘FESS’) on his right sinus at Lissie Hospital, Ernakulam in this case. In the year 2000, he developed left-sided sinusitis and underwent FESS at M/s. Lourdes Hospital, Ernakulum (‘OP-1’). Dr. P. Y. Johan (‘OP-2’) performed the procedure. As a result, he developed a severe headache and fever. 

The patient developed intracranial injury symptoms. The OP-2 informed him that the headache was caused by nasal packing on the left side. The nasal packing on the left side was then removed, but the headache persisted. He was vomiting, so the doctor examined him and then referred him to a neurosurgeon. A CT scan of the brain revealed regional oedema with partial effacement and elevation of the left frontal horn, as well as a small hyper-dense opacity in the inferior part of the left frontal lobe about 1.2 cm above the diaphragm sellae. 

According to the complaint, the OP-2 delayed referring the patient to a Neurosurgeon in order to conceal the negligence. It was also claimed that the medical records were tampered with. Because of alleged medical negligence, the Complainant filed a complaint with the State Commission and sought compensation of Rs. 13,00,000/-. The State Commission granted the Complaint in part and ordered the Opposite Parties to pay the Complainant Rs.3,00,000/- in compensation. 

Dissatisfied with the State Commission’s decision, the complainant filed an appeal with the National Commission under Section 21(a)(ii) of the Consumer Protection Act for compensation enhancement, while the OPs filed an appeal for complaint dismissal. 

The question before the National Consumer Disputes Redressal Commission (NCDRC)  was whether the OPs were liable for the complainant’s displaced bony fragment in the frontal region of his skull. 

The bench observed that the FESS was performed on the maxillary and ethmoid sinuses, which are located away from the frontal sinus. As a result, the possibility of injury to the frontal bone is extremely remote. According to the reports, the patient had a mild infection at the displaced bone in the frontal sinus. The OP-2 administered stronger antibiotics to the patient, who improved. It should also be noted that if the complication is caused by FESS, there will be a CSF leak. 

The bench noted that the CT scan report prior to surgery shows thickening of the mucosa as a result of the chronic process. The patient was also referred to a Neurologist for further evaluation. The claim that FESS causes memory loss and headaches is unsubstantiated.
[5:49 pm, 05/06/2022] Satish Swami  Advocate: The bench cited a recent Supreme Court decision in Chanda Rani Akhouri vs. M. S. Methusethupathi and Jacob Mathew vs. State of Punjab and Anr, in which it was held that a simple lack of care, an error of judgement, or an accident does not constitute negligence on the part of a medical professional.

After considering the preceding judgments, the bench allowed the appeal and dismissed the complainant’s appeal. 

The bench noted that the State Commission awarded Rs.3 lakh and that if the Complainant received any amount from the State Commission, the Opposite Parties shall not seek its refund from the Complainant at this stage.

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