Saturday, June 29, 2019

Left hand fractured, plaster cast on right: Is it a never event or gross negligence?

 Dr KK Aggarwal

Earlier this week, a case of gross medical error from Darbhanga Medical College Hospital was reported where an orthopedic doctor plastered the wrong hand of the boy who fell from a mango tree. The 7-year-old boy had fractured his left hand, but the plaster cast was put on his right hand.

When I read this story, few questions arose in my mind.

·         Is this an error?
·         Is it gross error or a never event?
·         Should the patient be given compensation?
·         Should the doctor be suspended?

My opinion: It is a never event but has not damaged the limb in question. It’s a never event and a fit case of compensation to the patient. We have professional indemnity insurance to cover for such mishaps. If it goes to medical council, it is not a fit case for suspension of license.

Applicable laws

This is a medical error and can be classified as a ‘never event’ i.e. event that should never occur under any circumstance. Never events are defined as adverse events that are serious, largely preventable, and of concern to both the public and health care providers for the purpose of public accountability. They are usually a direct result of a negligent action and no trial of expert’s evidence is necessary

The US National Quality Forum has defined 29 never events segregated into seven categories: surgical, product or device, patient protection, care management, environmental, radiologic, and criminal.

In M/S. Spring Meadows Hospital & Anr vs Harjol Ahluwalia 25 March, 1998, the Supreme Court said “Gross medical mistake will always result in a finding of negligence. Use of wrong drug or wrong gas during the course of anaesthetic will frequently lead to the imposition of liability and in some situations even the principle of Res ipsa loquitur can be applied.”

The apex court in Martin F. D' Souza vs Mohd. Ishfaq on 17 February, 2009 said “For instance, he would be liable if he leaves a surgical gauze inside the patient after an operation vide Achutrao Haribhau Khodwa & others vs. State of Maharashtra & others, AIR 1996 SC 2377 or operates on the wrong part of the body, and he would be also criminally liable if he operates on someone for removing an organ for illegitimate trade.”

In Indian Medical Association vs. V.P. Shantha 1995(6) SCC 651 (vide para 37) it has been held that the following acts are clearly due to negligence:   (i) Removal of the wrong limb; (ii) Performance of an operation on the wrong patient; (iii) Giving injection of a drug to which the patient is allergic without looking into the out-patient card containing the warning; (iv) Use of wrong gas during the course of an anaesthetic, etc.

This is not gross negligence. “In Dr. Suresh Gupta vs. Government of N.C.T. of Delhi and another AIR 2004 SC 4091, the appellant was a doctor accused under Section 304A IPC for causing death of his patient. The operation performed by him was for removing his nasal deformity. The Magistrate who charged the appellant stated in his judgment that the appellant while conducting the operation for removal of the nasal deformity gave incision in a wrong part and due to that blood seeped into the respiratory passage and because of that the patient collapsed and died. The High Court upheld the order of the Magistrate observing that adequate care was not taken to prevent seepage of blood resulting in asphyxia. The Supreme Court held that from the medical opinions adduced by the prosecution the cause of death was stated to be `not introducing a cuffed endotracheal tube of proper size as to prevent aspiration of blood from the wound in the respiratory passage.' The Supreme Court held that this act attributed to the doctor, even if accepted to be true, can be described as a negligent act as there was a lack of care and precaution. For this act of negligence he was held liable in a civil case but it cannot be described to be so reckless or grossly negligent as to make him liable in a criminal case. For conviction in a criminal case the negligence and rashness should be of such a high degree which can be described as totally apathetic towards the patient…” (Martin F. D' Souza vs Mohd. Ishfaq on 17 February, 2009)

In Nizam’s Institute of Medical Sciences vs Prasanth S.Dhananka & Ors on 14 May, 2009, the Apex court said, “30. Mr. Tandale has, however, relied on Indian Medical Assn. vs. V.P.Shantha & Ors. (1995) 6 SCC 651, and in particular on the following observations:

It has been urged that proceedings involving negligence in the matter of rendering services by a medical practitioner would raise complicated questions requiring evidence of experts to be recorded and that the procedure which is followed for determination of consumer disputes under the Act is summary in nature involving trial on the basis of affidavits and is not suitable for determination of complicated questions.

It is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all complaints about deficiency in rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the outpatient card containing the warning (as in Chinkeow v. Government of Malaysia (1967) 1 WLR 813 P.C.) or use of wrong gas during the course of an anesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. One often reads about such incidents in the newspapers. The issues arising in the complaints in such cases can be speedily disposed of by the procedure that is being followed by the Consumer Disputes Redressal Agencies and there is no reason why complaints regarding deficiency in service in such cases should not be adjudicated by the Agencies under the Act. In complaints involving complicated issues requiring recording of evidence of experts, the complainant can be asked to approach the Civil Court for appropriate relief. Section 3 of the Act which prescribes that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force, preserves the right of the consumer to approach the Civil Court for necessary relief. We are, therefore, unable to hold that on the ground of composition of the Consumer Disputes Redressal Agencies or on the ground of the procedure which is followed by the said Agencies for determining the issues arising before them, the service rendered by the medical practitioners are not intended to be included in the expression 'service' as defined in Section 2(1)(o) of the Act.”

Dr KK Aggarwal
Padma Shri Awardee
President Elect Confederation of Medical Associations in Asia and Oceania   (CMAAO)
Group Editor-in-Chief IJCP Publications
President Heart Care Foundation of India
Past National President IMA

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