Suffering of ailment by the patient after surgery does not simply mean medical negligence

Dr KK Aggarwal & Advocate Ira Gupta 

In the matter titled as “Dr. S. K. Jhunjhunwala versus Mrs. Dhanwanti Kumar & Anr., the Hon’ble Supreme Court of India vide judgement dated 01.10.2018 has held that simply proving the suffering of ailment by the patient after the surgery does not amount to medical negligence. The doctor can be held for medical negligence only if the suffering of any such ailment is because of improper performance of the surgery and that too with the degree of negligence on the part of the doctor.

Facts of the case: Mrs. Dhanwanti Kumar (patient) had filed the consumer complaint case claiming compensation for the loss, mental suffering and pain suffered by her throughout after the surgery on account of negligence of the appellant in performing the surgery of her Gall Bladder on 08.08.1996.

She complained that firstly she had never given her consent for performing general Surgery of her Gall Bladder rather she had given consent for performing laparoscopy Surgery only but the doctor performed general surgery of her Gall Bladder which resulted in putting several stitches and scars on her body.

Secondly, even the surgery performed was not successful inasmuch as the patient thereafter suffered for several days with various ailments, such as dysentery, loss of appetite, reduction of weight, jaundice etc.,

Thirdly, in June 1997, she was, therefore, required to undergo another Surgery in Ganga Ram Hospital, Delhi for removal of stones which had slipped in CBD. It was alleged that all these ailments were incurred due to the negligence of the doctor, who did not perform the surgery properly and rather performed the surgery carelessly leaving behind for the patient only mental agony, pain, harassment and money loss and hence she filed a complaint to claim the reasonable amount of compensation under various heads as mentioned above.

Doctor filed his reply and stated in his reply that he, after examining the patient No.1, advised her to go for surgery of Gall Bladder, which may even include removal of Gall Bladder. It was stated that consent of patient for performing the laparoscopic cholecystectomy was duly obtained before performing the surgery.

Doctor stated that after starting laparoscopic surgery, he noticed swelling, inflammation and adhesion on her Gall Bladder and, therefore, he came out of the Operation Theater and disclosed these facts to patient's husband and told him that in such a situation it would not be possible to perform laparoscopic surgery and only conventional procedure of surgery is the option to remove the malady. The husband of patient agreed for the option suggested by the doctor and the doctor accordingly performed conventional surgery. The patient was discharged after spending few days in the Hospital for postoperative care.

Doctor, therefore, denied any kind of negligence or carelessness or inefficiency on his part in performing the surgery on the patient and stated that all kinds of precautions to the best of his ability and capacity, which were necessary to perform the surgery were taken by him and by the team of doctors that worked with him in all such operational cases.

Judgment of the Court

44. In our opinion, there has to be a direct nexus with these two factors to sue a doctor for his negligence. Suffering of ailment by the patient after surgery is one thing. It may be due to myriad reasons known in medical jurisprudence. Whereas suffering of any such ailment as a result of improper performance of the surgery and that too with the degree of negligence on the part of Doctor is another thing. To prove the case of negligence of a doctor, the medical evidence of experts in field to prove the latter is required. Simply proving the former is not sufficient.

45. In our considered opinion, respondent No. 1 was not able to prove that the ailments which she suffered after she returned home from the Hospital on 08.08.1996 were as a result of faulty surgery performed by the appellant.

48. In the light of the detailed discussion made above on the issues arising in the case including the issue of grant of consent, we are unable to accept the aforesaid submissions of learned counsel for respondent No.1.

49. It is apt to remember the words of the then Chief Justice of India when he said in Jacob Mathew’s case (supra) which reads as under:

“The subject of negligence in the context of medical profession necessarily calls for treatment with a difference. There is a marked tendency to look for a human actor to blame for an untoward event, a tendency that is closely linked with a desire to punish. Things have gone wrong and therefore somebody must be found to answer for it. An empirical study reveals that background to a mishap is frequently far more complex than may generally be assumed. It can be demonstrated that actual blame for the outcome has to be attributed with great caution. For a medical accident or failure, the responsibility may lie with the medical practitioner, and equally it may not. The inadequacies of the system, the specific circumstances of the case, the nature of human psychology itself and sheer chance may have combined to produce a result in which the doctor’s contribution is either relatively or completely blameless. The human body and its working is nothing less than a highly complex machine. Coupled with the complexities of medical science, the scope for misimpressions, misgivings and misplaced allegations against eh operator i.e. the doctor, cannot be ruled out. One may have notions of best or ideal practice which are different from the reality of how medical practice is carried on or how the doctor functions in real life. The factors of pressing need and limited resources cannot be ruled out from consideration. Dealing with a case of medical negligence needs a deeper understanding of the practical side of medicine. The purpose of holding a professional liable for his act or omission, if negligent, is to make life safer and to eliminate the possibility of recurrence of negligence in future. The human body and medical science, both are too complex to be easily understood. To hold in favour of existence of negligence, associated with the action or inaction of a medical professional, requires an in-depth understanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability.”

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

Immediate Past National President IMA

Eight Zika-positive cases in Jaipur: It seems that Zika is now here to stay

Eight people in Jaipur have tested positive for the Zika virus. Of these, three are pregnant women, reports TOI. The first case was reported in the end of September. The health department has directed compulsory tests on pregnant women with fever in the Shastri Nagar area. There are 318 would-be mothers in the locality. Over 20 samples were sent to National Institute of Virology, Pune, and results of the remaining samples are awaited.

Last year in May, the WHO confirmed the first three cases of laboratory-confirmed Zika virus infection in India from Ahmedabad in Gujarat. The cases then detected were a 34-year-old female patient admitted to hospital with complaints of fever following delivery of a healthy baby, who had no travel history to any Zika affected country. The other two cases include a 22-year-old pregnant woman in her 37th week of pregnancy and a 64-year-old male with 8 days history of fever.

Eight people have reportedly tested positive for Zika virus. It seems that Zika is now here to stay in India.

Dengue and Chikungunya are already endemic in the country. Like Dengue and Chikungunya, Zika is a viral infection and also shares a common vector with them, the Aedes mosquitoes.

Here is an update of Zika virus disease.

·         Zika is caused by the Zika virus transmitted by Aedes mosquitoes. This is the same mosquito that transmits dengue, Chikungunya and yellow fever.

·         Zika virus derives its name from the Zika forest in Uganda, where it was first identified in 1947 in monkeys. It was then identified in humans in 1952. The first recorded outbreak of Zika virus disease was reported from the Island of Yap (Federated States of Micronesia) in 2007. This was followed by a large outbreak of Zika virus infection in French Polynesia in 2013 and other countries and territories in the Pacific.

·         In March 2015, Brazil reported a large outbreak of rash illness, soon identified as Zika virus infection, and in July 2015, found to be associated with Guillain-Barré syndrome.In October 2015, Brazil reported an association between Zika virus infection and microcephaly. Zika virus disease was declared as a Public Health Emergency of International Concern (PHEIC) by the WHO in February 2016, which was declared as ended in November 2016.

·         A pregnant woman can pass Zika virus to her fetus. Infection during pregnancy can cause serious birth defects such as microcephaly and other congenital malformations, known as congenital Zika syndrome. Other complications include preterm birth and miscarriage. Pregnancy loss due to asymptomatic Zika virus infection may be a common but under-recognized adverse outcome related to maternal Zika virus infection (Nat Med. 2018 Aug;24(8):1104-1107.

·         Zika virus infection is also a trigger of Guillain-Barré syndrome, neuropathy and myelitis, particularly in adults and older children.

·         The incubation period is 3 to 14 days.

·         Most people are asymptomatic or have mild symptoms such as fever, rash, conjunctivitis, muscle and joint pain, malaise or headache. Symptoms generally last for 2–7 days.

·         Dengue or Chikungunya-like symptoms of fever with a rash or joint pain, with red eyes, should not be ignored. Such cases could be Zika. Eliciting a travel history in such patients is very important.

·         At present, there is no vaccine or specific drug available to prevent or to treat Zika infection. Patients should be advised to take paracetamol to relieve fever and pain, plenty of rest and plenty of liquids. Avoid aspirin, products containing aspirin, or other nonsteroidal anti-inflammatory drugs (NSAIDs) such as ibuprofen.

·         Use of measures to protect against mosquito bites is very important to prevent Zika infection such as using insect repellent, covering as much of the body as possible with long, light-colored clothing, eliminating places where mosquitoes can breed and putting screens on windows and doors.

·         People traveling to high risk areas should take protections from mosquito bites. Pregnant women should avoid traveling to high risk areas.

These new cases tell us that all this time, the Zika virus has been circulating in the community and suggest low level transmission of Zika virus and the likelihood of more cases occurring in the near future. This should be of great concern to all, especially the public health authorities given India’s huge population, climate that is favourable to vector-borne diseases and India being a hotspot on the tourist map.

It has been suggested that the Zika virus in India “is distinct from the both African as well as pathogenic Asian strains; thus, it does not replicate profusely as the African and Asian prototype strains are known to do, and this is also the reason that there is low susceptibility in mosquitoes and they do not pick up and transmit the infection easily” (Indian J Med Res. 2017;146:572-5). But, if this Zika strain mutates to more efficiently infect mosquitoes, it could become a major public health problem in the future similar to Chikungunya virus, which re-emerged in India after decades of remaining dormant.

While enhanced surveillance, community-based including at international airports and ports, to track cases of acute febrile illness is the need of the hour, creating public awareness about the disease including preventive measures should be the focus. At the same time, the public should be assured that there is no need to panic.

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

Immediate Past National President IMA

Mahatma Gandhi was hypertensive: What could have been the cause of his hypertension?

 Being of lean physique, it would appear that Mahatma Gandhi would be a fit person. The iconic image of the Mahatma leading the Dandi March, where he seems to be striding ahead of the others, certainly gives an impression of a person who is physically fit.

But the health records, released to commemorate his 150th birth anniversary indicate otherwise. Gandhi ji had hypertension and was reportedly on medication (sarpagandha or Rauwolfia serpentina).

We have his ECG tracing done at Calcutta  (now Kolkata) dated 28^th Oct., 1937. The record show that his heart rate was 72 per minute and was regular. On 26^th October, he had very early and slight fullness of neck veins, which were not present on 28^th Oct. His BP reading on 26^th Oct. was 194/130; on 28^th Oct. the BP was 150/98. He was prescribed adequate rest by the doctor “Adequate mental and emotional rest with 8 hours restful sleep in 24 hours are indicated” as the records show.

Let’s try to analyse his health status based on this information.

Mahatma Gandhi had hypertension and his ECG shows no left ventricular hypertrophy. There were only a few anti-hypertensive medications available then. Also, echocardiography was not available at that time.

Lifestyle factors, in particular obesity, are determinants of BP levels. Excess of body fat is a major factor predisposing to hypertension. Excess body fat, especially central obesity, is associated with metabolic syndrome and type 2 diabetes. This is ruled out.

Arteriosclerosis is ruled out as his diastolic BP was very high. In arteriosclerosis, the systolic BP is raised more than diastolic BP.

His BP on 26^th Oct. was 194/130; on 28^th Oct. it was 150/98. This is accelerated HT.

Gandhi ji lived by the principles of satya, ahimsa, sarvodaya and satyagraha. Yet he was hypertensive.

He had been advised adequate rest with adequate sleep by the doctor.

Could the stress of the country’s freedom struggle have been a factor in the genesis of his hypertension?

We can only speculate.

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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

Immediate Past National President IMA

Welcome to the Silver Jubilee celebrations of the Perfect Health Mela

This year, we are celebrating 25 years of the MTNL Perfect Health Mela, scheduled to be held from 23th October to 27th October 2018 at the Talkatora Indoor Stadium, New Delhi. The theme for the Mela this year is “Affordable Healthcare”.

This year, the Mela promises to be bigger, better and more exciting for everyone as we have introduced many new features such as the ‘Evening Conclaves’, ‘Mini Melas’ and ‘HCFI CSR Awards’.

The Evening Conclaves are thematic conclaves, which will bring together experts from various fields for panel discussion on relevant issues such as antimicrobial resistance, IVF, Indoor pollution. The panel discussions will be followed by entertainment programs like a comedy night, concert night, qawwali and others.

Mini Melas are melas within the main Mela with five different themes each day of the Mela such as Math Mela, Art Mela, female adolescent health.

The HCFI CSR Awards, under various categories, will honor the best CSR initiatives by organizations and individuals that have revolutionized the way healthcare and other social initiatives are delivered.

The Mela will also undertake campaigns on two issues – “Indoor air pollution” and “Make in India” - to raise awareness on the fact that indoor air pollution can affect health as much as outdoor pollution; and to realize the goal of affordable healthcare through the Make in India for Cure in India movement.

We often talk of pollution outside our homes. Indoor air pollution often goes unnoticed and can be a major health hazard even in urban areas. However, indoor air pollution is an equally urgent issue that needs attention because a major part of our life is spent indoors in homes, schools, colleges, offices etc.

Make in India is imperative for Cure in India and it must be promoted to ensure that no one lacks access to timely treatment. This covers medical devices as well. The aim is to achieve the overall goal of affordable health care for all by making all critical and lifesaving medical devices available and accessible at affordable prices.

The Mela will showcase its usual activities across categories such as free health check-ups, entertainment programs, lifestyle exhibitions, lectures, workshops, CPR training, inter-school competitions (Harmony and EcoFest), a unique competition for specially-abled children (Anmol),  inter-college competitions (National Youth Fest) among others.

Entry to the Mela is free for all.

Join us as we celebrate the silver jubilee celebrations of the Perfect Health Mela.

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

Immediate Past National President IMA

Follow the four principles of Gandhian philosophy

The 150th birth anniversary of Mahatma Gandhi starts today and gives us an opportunity to recall the four fundamental principles that Mahatma Gandhi taught: Truth (satya), non-violence (ahimsa), welfare of all (sarvodaya) and peaceful protest (satyagraha). These principles can hold people together and hence form the backbone of dharma, which means “to hold together”.

Satya means oneness in your thoughts, speech and actions. Gandhi believed that “there is no religion higher than truth”. The Yoga-shastras as well as the Yoga Sutras of Patanjali propagate truthfulness as one of the main components for living a disciplined life.

Gandhi preached the concept of “experimenting with truth”, a phrase that also formed the subtitle to his autobiography. He taught how to learn through trial and error, often admitting to mistakes and changing one’s behavior accordingly. Non observance of truthfulness is the root cause of any corruption in the society.

Ahimsa teaches us the path of non violence. It should be practiced not only in actions but also in thoughts and speech. Ahimsa also forms the basis of Jainism and Hinduism as a religion.

The third principle is sarvodaya or welfare for all. The basic fundamental teaching of the Vedic science is also based on sarvodaya. It talks about “bahujan hitay-bahujan sukhay” - “the good of the masses, the benefit of the masses”. Gandhi found in it a composite concept of social welfare and economic justice. Any action, which is aimed and seems to be aimed at the welfare of the people will be accepted by all.

Satyagraha is protest based on satya (path of truthfulness) and non violence and includes peaceful demonstrations, prolonged fasts etc. i.e. a non violence-based civil resistance. It is based on the law of persistence. Satyagraha is formed by two Sanskrit words satya (truth) and agraha (holding firmly to or firmness). Gandhi said “Satyagraha is a weapon of the strong; it admits of no violence under any circumstance whatsoever; and it ever insists upon truth”. He said that if you are firm in the truth in the long run you are going to win.

These are basic principles that doctors should also follow as doctors not only need to be scientifically and legally correct, they also should be morally and ethically correct. Non-maleficence (do no harm) and beneficence (do good) are the pillars of medical ethics

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

Immediate Past National President IMA

Aim at achieving a parasympathetic state of mind

Every adversity is an opportunity to learn and therefore giving up is not the answer. 

A new research from the University of Portsmouth in the UK has found that people can die simply because they've given up, life has even beaten them, and they feel defeat is inescapable to them. The study is the first to describe the clinical markers for 'give-up-itis', a term used to describe what is known medically as psychogenic death. It usually follows a trauma from which a person thinks there is no escape, making death seem like the only rational outcome.

Although not akin to depression, the act of giving up on life and dying usually within days is a very real condition often linked to severe trauma. There are five stages leading to progressive psychological decline. Research indicates that give-up-itis could stem from a change in a frontal-subcortical circuit of the brain governing how a person maintains goal-directed behaviour.

The five stages of ‘give-up-itis’ are social withdrawal, apathy, aboulia (severe lack of motivation psychic akinesia (profound apathy) and psychogenic death.

Giving up is not the answer. Youngsters today are prone to get dejected by the smallest of sufferings. It is important to be self-motivated.

According to Hinduism, the very fact we are born means that in our last life, we did not get liberation or Moksha. It also means that some sufferings in our last birth remained. Therefore, the purpose of this birth is to face those sufferings. When the purpose of our life is to face sufferings, why suffer from them? They should be considered as ‘sukh’ and not ‘dukh’. As per Vedic literature, every adversity is an opportunity to learn or to do something different.”

The four notable principles of Buddhism also talk about the same. The first is that suffering exists, second that there is a reason for every suffering and third that it is possible to neutralize the suffering by understanding the 8 paths of cessation of suffering.

Remember that in every ‘dukh’ you think of ‘sukh’ and in every ‘sukh’ you think of a ‘dukh’. Positive thinking produces nearly a 30% drop in perception of pain. Next time you have a problem, think differently and learn to enjoy them. One should learn to disassociate from, both, external pain as well as pleasure, and only then can one acquire true internal happiness.”

Just as photon is the smallest unit of light and quantum is the smallest unit of energy, Qualia is the smallest unit of thought. Quantum teleportation is the transportation of quantum information via the phenomenon of entanglement. At the level of quantum, consciousness is the extreme parasympathetic state of mind or Samadhi. Those engaging in activities such as music and dance are able to achieve a parasympathetic state of mind.

The 25th Perfect Health Mela 2018 will explore some of these concepts during the cultural conclaves and programmes.

Celebrating its silver jubilee this year, the Mela will be held from 23rd to 27th October at the Talkatora Indoor Stadium, New Delhi.