मेरा मुंसिफ ही मेरा कातिल है

Medical Negligence: Karnataka Court Convicts Three Doctors For Death Of Woman Operated Without Ventilator Facility & Other Life Saving Equipment
Mustafa Plumber15 Jan 2022 4:30 PM

“A Judicial Magistrate First Class court in Bidar district of Karnataka recently convicted three doctors for causing the death of a woman who was operated on by them without having a ventilator facility in the hospital and other life saving equipment.

The 2nd additional Senior Civil Judge and JMFC Abdul Khadar, convicted Dr. Rajashree (32), Dr. Vaijinath ( 65 ) and Dr. Saibanna (52) of Susrut Nursing Home under section 304-A r/w Se.34 of I.P.C.

It sentenced them to undergo simple imprisonment (SI) of 2 years and fine of Rs 10,000 each and in default of payment of fine they shall undergo S.I. for six month for the offences under section 304A a/w 34 of IPC.

The Court also convicted Dr. Rajshekhar Veerabhadrappa Patil (52) of another hospital under Section 202 IPC for failure to give any information respecting the offence and sentenced him to undergo Simple Imprisonment for six month and fine of Rs.5,000 /-for the offence punishable under Sec.202 r/w 34 of IPC. In default of payment of fine he shall undergo S.I. for one month.

Case Background

On October 12, 2014, the deceased Sampavathi got herself admitted to the Susruth Nursing home for undergoing laparoscopic assisted vaginal hysterectomy operation. The accused No.1 to 3

  1. conducted the operation without maintaining the ventilator facility in the hospital,
  2. did not follow the pre-operation procedures, and
  3. did not give any intimation about the woman’s health condition to her family.

Thereafter, the accused shifted the deceased to the hospital of accused No.4, who admitted the deceased with an intention to screen the accused from their negligent act. He declared the death of Sampavathi to the complainant on the next day, even though she had died earlier .

Following which the brother of the deceased lodged a complaint with the New Town Police Station, Bidar against the accused.”

“Prosecution arguments

In order to bring home the guilt of the accused, prosecution examined 11 witnesses.

It was argued that

  1. at the time of surgery, the hospital authority had no I.C.U, ventilator and oxygen facility and 2. before conducting the surgery, the accused did not obtain the certificate of patient by physician or anesthesia department. my comment : (Pre-op fitness ??
  2. Further, they did not follow pre-surgery procedures as no blood test, X-ray, E.C.G. was done. my comment: No documentary evidence of pre-op checkup

Further, the major surgery was done under general anesthesia without ensuring that the life saving facilities are available in the hospital. (my comment: it’s high time to avoid general anesthesia without basic amenities of Ventilator, oxygen etc)

Relying on the postmortem report it was said that the cause of death was a complication of Laproscope Assisted Veginal hysterectomy and if accused No.1 to 3 had taken all precautions during the operation the patient would not have died due to complications.

“The prosecution also stated that accused No.4 knowing fully well that the death of Sampavathi occurred before 5:30 a.m, he made drama, for causing the disappearance of evidence in order to help accused No.1 to 3. Thereby, he intentionally did the same and hence the provision of Section 202 of IPC attracts negligence.

Defense arguments

It was submitted by the counsel for the accused no 1 that the prosecution has to establish beyond all reasonable doubt, the medical complications were the result of the alleged gross negligence and recklessness. The case sheet of both hospital and the opinion of the expert committee, FSL Report show that there is no negligence or where the line of treatment was questioned.” (my comment: opinion of Expert Committee that there was no negligence has been overruled bt Hon Judge)

“Further, it was stated that accused No.1 is a qualified laproscopic surgeon and the prosecution has failed to prove that complication of pulmonary edema is not likely to occur during the surgery, which is the most important fact and ingredient to prove the medical negligence.

It was argued that accused No.1 took sufficient care and attention to reduce the risk of the patient on a timely basis and stopped the surgery and shifted her to a better hospital. Moreover, the committee constituted by the District Surgeon to verify the allegation of medical negligence in its final report has said there is no negligence on the part of the accused during the performance of the LAVH surgery and also shows how the accused have tried to save the deceased.”

“Finally it was argued that every death during medical treatment can’t be proceeded against the doctors. If the courts were to impose criminal liability on the hospital and doctors for everything that goes wrong, the doctors would be more worried about their own safety than giving all the best treatment to their patients.

Court findings

Firstly the court noted that to prove the negligence on the part of the accused No.1 to 4 the prosecution has to prove its case through medical evidence and not based on eyewitness evidence.”

“It added “In this case the prosecution by examining the PW5 to 8 and 10 proved that the accused No1 to 3 have operated the deceased Sampavathi in the hospital of accused No.1 and the documents-PM Report, corroborates the evidence of PW1 to 4 regrading the surgical suture wound in at periumbilical region…The evidence of PW7 also shows that the accused No.1 to 3 during operation they cut the infundibular pelvic ligaments and cauterized, due to which blood was continuously bleeding and the water was collected in the lungs of Sampavathi.” (my comment: I am surprised, Hon Judge is commenting that due to cauterization of infundibular ligament, there was continuous bleeding and ‘water in lungs

The court also noted the accused conducted surgery without having ventilator facility, due care and caution to ensure the critical life saving equipment, and as a result Sampavathi died. (my comments: is he died because of lack of ventilation and resultant respiratory arrest? Is it that, had ventilator been there, these complications would not have occured? Is there something known as Manual -Ambu bag- ventilation)

Therefore, it was held that the prosecution has successfully proved the guilt of the accused No 1 to 4 beyond all reasonable doubt that they have committed the offence punishable u/s.304[A], 202 r/w 34 of IPC.

It held “Therefore, prosecution has proved the negligence on the part of the accused No.1 to 3 and has proved the destruction of evidence on the part of the accused No.4 beyond all reasonable doubt and hence the benefit of doubt is not extended to the accused persons.”
It is horrible to observe that in spite of non-negligent report of District Surgeon and Expert Committee Hon Judiciary is holding doctors of 65 and 52 yrs of age ‘totally negligent’ and giving severe punishment of 2 yrs imprisonment …..

Either, it is the fault of defence lawyer to plead adequately to the satisfaction of Hon judiciary or there were Inadequate documentation and Consents.

So, lessons to be learnt:

  1. Have adequate, basic minimum facilities in the Hospital, before giving any anesthesia or doing any procedure.

Now, issue is what is adequate, basic minimum facilities, which Hon Judiciary will accept?

Answer: Nobody knows….

There should be specific certification/protocol from either Local Govt Authorities or National Speciality (Anesthesia/Surgeon) Associations about these basic minimum facilities, which are adequate for doing a particular procedure. So that, a doctor will be assured that he won’t be held guilty for inadequate facilities.

Considering apathy of Govt as well as National Associations, this seems to be remote possibility!

  1. Adequate Documentation and Proper Consent
    I had given talks on these issues. It is observed that, by and large, unfortunately, doctors are too lazy, apathetic and reluctant to write proper notes and keep record, especially of all untoward incidences and precautions taken to avoid or treat them. Also, these records have to be maintained for long time, especially for unfavorable results or dissatisfied patients.
  2. Importance of proper Consent.
    I have separate 30 min talk on it….
    In summary, it should include all possible consequences , rarest of rare complications, which can occur. It should also mention about available facilities in the Hospital and need to shift patient to Tertiary Care Hospital, if situation arises.
  3. Professional Indemnity of minimum 50 lakhs by GPs, 1 Cr by physicians and less risky specialities and 2 Cr by high risk specialities like Intensivists, ObGy, Orthopedics and Surgeons including Neuro/cardiac etc
  4. Proper and regular communication with Patients and relatives. Convincing Communication
    Again I have separate talk on it. In Sumary, in case of untoward incidence, More time should be spent for frequent communication with patient/relatives, rather than tome spent of treating/saving the patient.

There are many who won’t agree with my comments or conclusions. But, remember, whatever is your view or opinion, it should be acceptable to Hon Judges as they are the final authority, to decide what is correct and what is negligence, even if your argument is logically, medically, ethically correct and non-negligent!

You have to mould yourself, according to existing situation, because your survival in the Profession is at stake!

Dr N J Karne, Pune

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