Doctors and technology – the legal tangle.

Are the rapid advances in technology a boon or bane for doctors? Mind you, I specifically said doctors, not medicine, because both are impacted in different ways. The case I am going to discuss today – Michael Rodrigues & Anr. Vs Dr. Shantaram N. Surme & Ors. – is relevant to this topic.

The patient, a 17 year old girl, consulted her family doctor of many years, a part-time private practitioner who also happened to be a gynaecologist (hereinafter referred to as Gynaecologist-1) attached to Govt Medical College (hereinafter referred to as GMC). The Gynaecologist-1 diagnosed her as a case of acute appendicitis and prescribed some medicines. The symptoms did not improve in next 5 days and hence the Gynaecologist-1 referred the patient to a small private hospital owned by a surgeon (hereinafter referred to as Surgeon-1) for appendicectomy. The owner-surgeon called another surgeon (hereinafter referred to as Surgeon-2) to perform the surgery, and Surgeon-2 was the HOD, Dept of Surgery, GMC. After appendicectomy, the patient was discharged, but she returned immediately the next day with abdominal distension. After 4 days of re-admission, an ultrasound was performed which revealed ascitis and a haemorrhagic cyst in left ovary. The abdominal tap was haemorrhagic. Lab investigations revealed leucocytosis, raised bilirubin and pus cells in urine. The patient was shifted to GMC, where the senior surgical resident under Surgeon-2 performed laparotomy and found 2.5L haemoperitoneum, and the corpus luteal cyst in the left ovary was excised by another gynaecologist on-duty. Subsequently, the patient expired on 19th day. The post-mortem revealed septicaemic shock, peritonitis, hepatitis, pancreatitis and lung consolidation as the cause of death.

The sister of the patient filed a complaint with the government, which formed a committee for investigation. In addition to a criminal case, a case was also filed in the State Consumer Disputes Redressal Commission wherein Gynaecologist-1, Surgeon-1 and Surgeon-2 were accused of negligence. The consumer forum, in concordance with the report submitted by the committee, observed the following:-

    • The committee had checked the phone call records of the doctors involved. The committee found that both the claims made by Surgeon-2 i.e. about the urgency of surgery for appendicitis and the resultant claim of frantic phone calls from the small hospital, were false. Call records did not support the claims made by the doctors. The other claim made by Surgeon-2 that he was at a distant location from GMC when the patient was shifted to GMC was also found to be false, since the phone location could be correctly traced by the authorities.

    • Requisite pre-operative investigations, including an ultrasound, were not performed. Surgeon-2 failed to ensure that the investigations were done, and he also did not examine if the consent form was properly filled. This conduct was unbecoming of a doctor.

    • Surgeon-2 claimed that the operation theater in the small hospital was in unhygienic condition. The forum said that in such a case, Surgeon-2 should have rather insisted on operating the patient at GMC. The decision of Surgeon-2 to operate in the small hospital was not on humanitarian grounds but on other considerations. Also, the unhygienic condition of the small hospital was an act of negligence.

    • The nurse attending the patient, apparently a relative of the patient, testified that the surgically removed appendix was small in size. The hospital did not send the appendix for histopathological examination. These facts, the forum said, indicated that it was likely to be not a case of acute appendicitis, and the surgery was a negative appendicectomy. The forum observed that today when diagnostic facilities are available at every nook and corner, no operations are done without confirming clinical observations with diagnostic tests (like sonography). The forum also iterated that in these modern days and times it is unheard of that anything which is removed surgically is just discarded without any histopathological examination.

    • The committee found that some pages from the records of the patient in the small hospital were altered later as an after-thought, which amounted to forgery. This raised suspicion about the veracity of other records as well.

    • The ultrasound scan performed upon re-admission was delayed and this delayed the shifting of the patient to GMC, which proved fatal for the patient. Delay in making the correct diagnosis of ovarian cyst contributed to the death of the patient.

    • It was inappropriate that the resident doctor performed the complicated surgery at GMC, despite senior unit in-charge surgeon being available. The forum concluded that this was done under instructions of Surgeon-2.

    • Though Surgeon-2 claimed that he had the experience of performing 3000 appendicectomies earlier, the forum observed that it wasn’t clear how many of those the surgeon had diagnosed by Alvarado Mantrel’s method and how many by sonography. The forum also observed that the claim of the surgeon that he had inspected uterus-ovaries at the time of appendicectomy was a false one because as per Shaw’s Textbook of Gynaecology ovaries are not easily accessible through the 8 cm incision for appendicectomy.

The consumer forum held the Gynaecologist-1, Surgeon-1 and Surgeon-2 guilty of negligence and awarded a total compensation of 19.1 lakh to the complainants, to be paid jointly and severally by the doctors. The opposite parties (doctors) contested that the deceased patient was lagging in her academics compared to her age, and it was likely that she would have been married off (and thus would not have been of any financial assistance to her parents). The consumer forum observed that these were imponderables and it was equally possible that she would have studied hard and remained a spinster, and thus the awarded compensation was fair, even considering that the alleged hospital was very small and modest.

So what are the lessons for doctors from this case? Apart from the obvious, this case illustrates how modern technology has changed the face of medical practice. In this case, on the one hand, mobile phone technology was used to test the veracity of the claims made by the doctors, while on the other hand, the doctors were held negligent for not making use of modern diagnostic techniques. Thus, technology is not only making medical diagnosis and treatment more sophisticated, it is also making it more legally accountable. Besides this, there is a technical point to learn. A consumer forum may admit hearsay evidence, which may not strictly fit within the bracket of Evidence Act, provided that such material has probative value and an opportunity has been given to the opposite parties to say what they want to about the evidence led. As has been said by Lord Diplock in R. V. Deputy Industrial Injuries Commissioner, ex parte Moore, a (1965) 1 All ER 21, the only limitation on tribunals or quasi-judicial authorities deciding disputes between the parties is that “he must not spin a coin or consult an astrologer”. So be vigilant and do due diligence!

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