Chapter: 5.1 Degree of Care expected of Doctors

Degree of Care expected of Doctors; Frivolous and Vexatious Litigation

Case history of Prashanth S. Ohananka v. Nizam Institute of A Iedical Science in brief: Patient 20-year-old student of an Engineering College at the relevant hme. He was having fever on and off at the time of admission to Nizams Institute of Medical Sciences NIMS. Several investigations and a CT scan were done in another private hospital. Dr. Ashish Bhogani, a Chest Physician and T. B specialist, saw him in the OPD and recorded his impression as "Neurofibroma". He was advised ultrasound-guided biopsy. Routine Chest X ray revealed a mass in the left hemithorax. CT Scan of the chest showed a large mass in the left hemithorax with erosion of the ribs. When two attempts at fine needle aspiration cytology under ultrasound guidance and trucut biopsy under fluoroscopic guidance (FLAB did not give any conclusive evidence, the complainant was referred to Dr. U.N. Das for further management. As Dr. Das suggested one more attempt at FNAB, it was carried out. As even the 4th attempt did not show any lesion, Dr. Das advised excision biopsy by thoracotomy and referred the complainant to Dr. P.V.Satyanarayana, Cardio Thoracic Surgeon. A posterolateral thoracotomy on the left side and excision of tumour was done. As revealed by the Discharge Record, the patient developed acute onset of paraplegia immediately after surgery and "had flaccid paraplegia with a sensory level at D10. Bladder and bowel paralysis was present. Lower limb reflexes were absent. Ischemic myelopathy was considered which was substantiated by MRI scan of spinal cord. Patient was managed by steroids and nimodepine and was on continuous bladder drainage and later on intermittent self-catheterization. During hospitalization, he developed spasticity and flexor spasms and diffuse pain in lower limbs". Thus the Complainant had paralysis of the trunk and lower limbs and lost urine and stool sensation and control and sensibility of buttocks, urinary bladder, rectum, flexor aspects of the thighs, legs and feet. After discharge from hospital after 7 months of hospitalization, the discharge record noted that the patient requires continuous physiotherapy and nursing care. Due to the paraplegia and other complications, the Complainant's condition was precarious and he spent a considerable time in hospitals.

The Complainant alleged negligence and deficiency in service rendered by the Nizams Institute of Medical Sciences DIMS, Dr. P.V. Satyanarayana, Professor of Cardio Thoracic Surgery (O.P No.2), Dr. I. Dinaker Professor of Neurosurgery (O.P. No.3), Dr. U.N. Das, Professor of General Medicine (O.P No.4), Director of NIMS, O.P No.5, and Chief Secretary Govt. of A.P (O.P NO.6). The National Commission laid down the epoch making decision (per Dr. (Mrs.) Thamarajakshi) holding that performing of surgery for excision of biopsy (patient became paraplegic and was confined to wheel chair) without performing adequate pre-operative tests and without complete involvement of a neurosurgeon is a serious lapse on the part of hospital and doctors. Further it was held that, hospital and doctors are liable to pay a compensation of Rs. 14 lakhs to the Complainant.

1.    The National Commission has in one of its landmark judgements, Brij Mohan Kher V/s Or. N. B. Banka and Anr. warned against the tendency of filing false and vexatious complaints against doctors as follows: "false and vexatious complaints lodged before the Consumer Forum with a view to harass and blackmail those who supply the goods and provide the services to the community, should be discouraged".
2.    In the case of K. Jayaraman V/s Poona Hospital & Research Centre & Ors., 1994 (2) CPR 31 wherein complainant claimed compensation on the ground of delay of 1.15 hours, the National Commission dismissed the complaint as malafide, vexatious and frivolous and the complainant was directed to pay cost of Rs. 10000/- to the respondent hospital.
3.    Shrimati Nirmala R. Parab & Anr. V/s Dr. Kalpana Oesai & Ors. III (19981 CPJ 66 (State Commission, Maharashtra).

Brief facts of the case:
The complainant is the father of Mrs. Ashwini Rane, and he has filed this complaint on behalf of his daughter who is like a living vegetable and is unable to understand anything around her. The case of the complainant is that his daughter was under the medical treatment and care of the opposite party No. 1, Dr. Kalpana Oesai from fifth month of her pregnancy, since she had a previous history of 3 miscarriages in the 7th month of pregnancy. The Opposite Party No. 1 had put sutures on the womb of the patient and informed that sutures would be removed on 2nd May 1990 and the approximate date of delivery would be 12th AIay 1990. On 23rd April 1990 Mrs. Ashwini Rane was admitted to the Clinic of O.P. No. 1 in Matunga, with labour pains. A caesarean operation was performed and Mrs. Rane was delivered of a baby boy. Within a span of half an hour, four doctors rushed into the operation theatre as the blood pressure had suddenly fallen and so had the pulse. The patient was shifted to another hospital where better equipment and facilities were available.

It was held by the Hon'ble State Commission of Maharashtra, that O.P. No. 1 immediately gave cardiac massage to the patient and rushed all the other doctors and cardiologists. Emergency treatment as expected under medical standard has been given and arranged to shift the patient to another hospital for better ICCU facilities. The Complainant alleged negligence on the part of the doctors. It was held that the doctors had taken necessary precautions and given the best possible treatment. There is no deficiency in service on the part of the doctors and the complain t was dismissed.

THIS CASE MAY ALSO SERVE AS A CASE STUDY OF A FRIVOLOUS AND VEXATIOUS COMPLAINT FILED AGAINST A DOCTOR

Consumer Disputes Redressal Commission, Maharashtra in the original complaint 51/96 in Bhimrao Kashinath Dhaware Complainant V/s Dr. Viraj Lokur, Sangli Opponents considered the allegation that a kidney of the patient was removed by the doctor while he was undergoing treatment for hydronephrosis.

Brief facts of the case are as follows:
Opponent is a reputed doctor, has a Masters Degree in Surgery (M.S.) and is practicing at Sangli for several years. When the complainant approached him, he was duly attended, he (complainants was operated after obtaining his consent, the operation and post operation period went off smoothly and he was discharged thereafter. Further, at the request of relatives of the complainant, professional fees were reduced drastically and a total sum of Rs. 1000/~comprising of Rs. 800 paid initially and Rs. 200/- paid at the time of discharge was only received from the complainant.

Complainant approached the Opponent Dr. for the first time on 17-3-1 994 as an O.P.D. patient with complaint of abdominal pain on right side since his childhood. He was found to have a mass in kidney. He Eras investigated on the same day. His blood and urine examination was normal. His left kidney was found to be normal. While his plain X-ray of the abdomen vvas normal, sonography test revealed that there was gross hydronephrosis on right side with the pelvi-ureteric junction obstructed by a thinned-out cortex.

"Hydronephrosis is a chronic disease with excess accumulation of water in the kidney. It is usually caused by the blockage of the ureter leading from the kidney. In early stages it may be possible to unblock the ureter, but in later stages removal of the kidney itself may be necessary".


Further developments in this case:
Complainant came back again on 4-4-1994 to the hospital of the opponent and was admitted on the same day. His sister and brother-in-law accompanied him. On admission, the patient and his relatives were given a clear idea about the findings and diagnosis and were explained in detail as to what procedure was going to be performed. The Complainant/Patient had signed in evidence of his having approved / consented to the proposed surgery to be carried out to remove the obstruction in the ureter to facilitate the free flow of urine. Operation of the complainant/patient for hydronephrosis was performed on the very next day. It was observed that there was a band across the P.IJ. Jn. (Pelvi-Ureteric Junctions that was causing obstruction to the flow of urine down the ureter. The operation and post operative period went off smoothly. The patient was discharged on 12-4-1994 and discharge card was handed over to the brother-in-law of the patient. Complainant revisited the Opponent doctor for follow up on 16-5-1994 and again on 26-5-1994 and was found to be having no complaints. He visited again on 30-8-1994 and requested a certificate, which was given to him on the same day.

Opponent doctor was shocked to receive a legal notice from the patient's advocate on 5-5-1995 alleging that his right kidney was removed and he came to know about it when he was treated at Civil Hospital, Solapur. At the request of the opponent doctor, the Complainant visited the clinic and underwent an ultrasonography test (USG), which clearly showed that the right kidney was present but it was smaller compared to the left kidney. One significant finding observed by the radiologist was that the Right Kidney was not visible from front Anterior surfaced but was visible only from the back Posterior surfaced. The Right Kidney had become small after the operation because prior to the operation (hydronephrosis) acute pressure on the cortex caused by the accumulated urine reduced and thinned its size. The subsequent operation resulted in discharge of urine and consequent reduction in the size of the right kidney.

A CAT Scan was performed at the instance of the Complainant himself on 3rd July 1996 when he approached another doctor, a Gen. Surgeon for confirmation whether his right kidney exists. The Report clearly showed the presence of the Right Kidney. It even showed that the said kidney functions to some extent. A Xerox copy of the said film was produced. A copy of the Report containing Complainant Dhavare's signature on the report was also produced.

As the Complainant did not succeed by pressurizing the Opponent doctor, he lodged a CRIMINAL COMPLAINT OF THEFT on the Opponent doctor at Miraj Police Station. Opponent doctor was called to the police station for interrogation when all relevant papers were produced in police station. The police department then admitted the complainant to Civil Hospital, Sangli, had a panel of doctors investigate him, and a report was submitted to the Superintendent of the Police of Sangli. Complainant did not stop his coercive tactics even at this stage but persisted with harassment of the doctor in the following  manner:

a)    Complainant continued with vilification of the Opponent doctor by publishing defamatory articles demanding arrest of the opponent doctor. Specimens of such articles enclosed clearly shows that an attempt was being made to damage the career and reputation of the Opponent doctor;
b)    Complainant had written to Health Minister of Maharashtra as a result of which Deputy Director of Health Services, Dr. Dodwad, visited the hospital on 24-6-97 to ascertain the facts. Opponent doctor submitted the complete case history and documents to Dr. Dodwad who also obtained a copy of the report of panel of doctors at Civi 1 Hospital Sangli;
c)    Complainant had also written to Maharashtra Medical Council and consequently the Opponent Doctor was asked by the Registrar, Medical Council vide letter dated 8-7-97 to submit all relevant details and as result of the same all the available reports were sent Maharashtra Medical Council;
d)    Opponent doctor received threatening calls from time to time and false stories were periodically published in the local newspaper demanding the arrest of the doctor under ATROCITIES ACT alleging that a doctor belonging to a higher caste removed the kidney of a poor Dalit.

This case of the Opponent doctor was represented by the author of this module who submitted on behalf of Opponent doctor, that the allegation of the complainant that his affected right kidney was stolen was absolutely baseless and even medically absurd because as per the Kidney Transplantation Principles and Practice by Peter Morris -4th Edn. it is usually the left kidney and not the right kidney that is chosen. Also, an affected kidney can never be considered as medically fit for transplantation. Relevant extracts from the said report were annexed.

It was further submitted on behalf of the Opponent doctor that he was subjected to a great deal of mental torture and harassment on a continuous basis with a view to pressurizing him into giving in / yielding to the threats made by the complainant and his associates while demanding a huge amount of compensation amounting to Rs. 10 lakhs. When the Complainant found that the Opponent doctor was not giving into such blackmail, he reduced the demand to Rs. 7 lakhs.

Hon'ble State Commission did not find any merit in the complaint and dismissed the same for default of Complainant after hearing the advocate for Opponent doctor as the complainant failed to even appear before the commission in the matter.