New Delhi : The National Consumer Dispute Redressal Commission (NCDRC) has upheld the Maharashtra State commission’s order directing Parel hospital, Mumbai and Dr. Ajay Rathore, an Orthopedician to pay more than Rs 12 lakh in compensation to the family of a senior citizen, 15 years after her death due to excessive use of anesthetics during a surgery. Rejecting the appeal filed by the doctor and the hospital, NCDRC held the hospital vicarious liable and the orthopedic surgeon liable for being “The Captain of the Ship” and held them jointly liable to pay the compensation
As per the complaint Kusum the deceased patient was operated on by Dr Ajay Rathorea at the hospital for a fracture on her forearm and the anesthesiologist was Dr Mulji Khemji Gada (who died during the proceedings before the state commission). The operation was conducted in the morning but the patient did not regain consciousness due to excessive use of anesthesia. Her condition worsened further and she was intubated and put on a ventilator. The patient was hospitalised for a long period in an unconscious condition. The neurologist, after performing a CT scan and MRI, diagnosed her with ‘hypoxic encephalopathy’. Thereafter, the unconscious patient was shifted to another hospital, where she died.
The district commission appointed expert committee report from the department of Traumatology and Orthopedic Surgery of Grant Medical College and Sir J J group of Hospitals had given stated that there was no medical negligence on the part of the operating surgeon. However, Dr. Kamlesh Jagyasi the Neurosurgeon opined that, as the Hb% of the patient was 7.4 gm%, it was low and it should have been built-up before surgery, also pre-anesthetic fitness should have been recorded.
The NCDRC, however, referred to the opinion of one of the experts, a neurosurgeon, who cited that as a certain parameter was low, it should have been built up before surgery and pre-anesthetic fitness should have been recorded. “It was the valid point that the other experts have not commented on this point. As there was no recovery from anesthesia after the operation, in my view, the pre- and post-operative care was certainly doubtful in the instant case,” the commission noted. It further said that even though the anesthesiologist died during proceedings before the state commission and his legal heirs were brought on record “right to sue survives” against him.
“Though, negligence was attributable to the anesthesiologist, the hospital shall not be absolved from the vicarious liability,” the national commission said. Moreover, the ‘captain of the ship’ was the orthopedic surgeon before proceeding to surgery, he was supposed to be careful to ascertain proper pre-anesthetic check-up and fitness report, the NCDRC said, adding that that it didn’t not find any “error apparent” to interfere in the state commission’s order.