Almost every intervention / procedure has a known risk. Something could go wrong. While courts acknowledge this fact, doctors’ awareness and capability to manage the risks is also considered while adjudging such a case.
Irrefutable Facts
The patient was referred to gynaecologist by a physician for gynaec-related complaints. The Gynaecologist, after investigations, performed Dilatation and Curettage (D&C). HPE of D&C samples revealed, ‘hyperplasia of endometrium without atypia’. Accordingly, the patient was advised to undergo laparoscopic hysterectomy, which was performed by the laparoscopic surgeon.
After discharge, patient consulted the gynaecologist with complaints of abdominal pain and vomiting, for which she was treated conservatively. However, she did not get any relieft and hence, she was referred to a urologist and a gastroenterologist.
The patient was advised CT scan by the urologist, but lower ureters were not visualized, hence a cystoscopy and retrograde pyelography were performed which revealed strictures in the ureters of both sides. The urologist performed ureteric stenting on both sides, yet the patient did not get relief. Therefore, she was referred to a second hospital to rule out Tuberculous infection; and it was found to be negative.
The patient was then referred to a second urologist and based on a repeat CT scan report ‘hydroureter upper part’ and hydronephrosis on both sides was diagnosed. On the next day, the patient underwent per cutaneous nephrostomy (PCN) and thereafter underwent laparotomy with ureter ileal replacement construction with implantation of ureters on both sides. The patient was later discharged from the second hospital.
Gynecologist and laparoscopic surgeon were sued by the patient. She alleged that laparoscopic hysterectomy was not needed; it injured the ureters and necessitated another major surgery leading to urinary complications and permanent need of regular follow-up with doctors.
It was also alleged that laparoscopic surgeon performed the procedure without taking patient’s / attendant’s consent.
Doctor’s Plea
The gynaecologist stated that the patient was initially managed conservatively, but the response was not satisfactory. She displayed symptoms of bleeding and complained of abdominal pain, therefore hysterectomy was advised.
The laparoscopic surgeon pointed out that injury to ureters on both sides during laparoscopic hysterectomy is a known complication. Furthermore, the strictures of mid ureters on both sides were pre-existing and were due to retro-peritoneal fibrosis, a rare disease suffered by the patient.
Court’s Observations
The court observed that the decision to perform hysterectomy was based on patient’s clinical symptoms, and it was taken by the gynaecologist who was a well-qualified doctor and hence, did not further comment on it. The court perused the consent form and found that it was not signed by the treating doctor or by any witness; names of surgeons and anaesthesiologist were not written; and requisite details, such as name of the operation, anaesthesia, and possible complications were also not written. The court opined that it was “not an informed consent but a printed blanket consent”.
The court also perused OT notes, but could not conclude as to whether the ureteric injury was pre-existing or happened during surgery. The court wondered how laparoscopic surgeon rectified the error, as medical records were incomplete and drew adverse inference for the same.
The court further perused medical records and observed that the laparoscopic surgeon had not taken specific care and precautions to avoid the ureteral injury, and to check if there was any injury by performing intraoperative cystoscopy.
The court observed that the gynaecologist and laparoscopic surgeon initially attributed injury on account of patient suffering from a rare disease, retroperitoneal fibrosis’’, but later admitted that it was an accidental injury during surgery. The court drew adverse inference from the inconsistencies in their defence and observed that the diagnosis of retroperitoneal fibrosis was an afterthought.
Both doctors were held negligent.
Prevention Is Better Than Cure
- ‘Expected complications’ during or after intervention are legally acceptable. The duty of surgeon is to take requisite precautions to avoid complications, identify the same at the earliest, keep the patient / attendants informed, take requisite efforts to correct them, and to document the aforesaid specifically
- Medical records of OT should have details of the intervention performed with details of adverse events if any. Any deficiency forces the court to draw an adverse inference as access to relatives / attendants is restricted in OT. Before courts, medical records are the only witness of events that happen in the OT
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Source : Shreya Nimonkar v/s Dr. Seema Shanbhag & Anr.