‘Harrowing discomfort’: Kolkata hospital to pay Rs 26.5 lakh after 11-year battle over botched hysterectomy

“The patient was left to endure harrowing discomfort for days on end. It was only 8 days post-operation that a CT scan was finally commissioned, and thereafter, a urologist consulted. Such a profound delay, in total disregard of established surgical safeguards, constitutes a clear and indisputable act of medical negligence on the part of the doctor,” the consumer commission said on May 6.

Hospitals, nursing homes can’t escape liability

• A nursing home or hospital can be held vicariously liable for the negligence of a doctor who performed a surgery like a hysterectomy.
• It is a trite law that medical institutions are responsible for the acts of their doctors, regardless of their employment status.
• Hospitals and nursing homes cannot escape liability by claiming they only provided “infrastructural facilities” or that the doctor was an “independent contractor” rather than a direct employee.
• It is also settled that patients often seek treatment based on the reputation of the hospital itself, placing the duty of the institution to ensure proper care is provided by its staff.
• Therefore, vicarious liability applies to all types of consultations, including those who are permanent or temporary staff visiting or honorary consultants or engaged on a “job basis” or “contract basis”.

• Beyond that, the record poignantly reveals a gruelling odyssey of repeated surgeries to mend the damaged ureter, a journey that exacted not only a physical toll but a staggering financial burden of Rupees Twenty (20) lacs and odd.
• The complaint stands rightfully entitled to the restitution of medical expenditures alongside equitable compensation for their profound ordeal and the costs of this legal pursuit.
• In the case at hand, the doctor was found negligent in taking steps like a CT Scan or Dye Test despite vital signs appearing after the hysterectomy.
• From the clinical charts, no step was found to be taken by the Doctor qua assistance of any Urologist either at the intra-operative stage or at the post-operative stage.

Allegations of surgery without informed consent

According to the complaint, Datta had approached Dr Bhattacharya at Belle Vue Clinic with complaints of heavy and irregular menstrual bleeding that had persisted for nearly three months.

She alleged that on April 10, 2015, the doctor performed a hysterectomy “without knowledge and consent”, and during the surgery, her left ureter was cut.

The complaint stated that after the operation, she experienced severe bleeding, discharge from the stitch site and continuous leakage of urine due to the ureter injury.

She alleged that the treating doctor and hospital failed to promptly disclose the damage or undertake timely corrective steps.

Datta further claimed that she underwent five additional surgeries in 2015 in an effort to repair the injury and incurred medical expenses exceeding Rs 20 lakh.

She eventually had to be shifted from Belle Vue Clinic to Rabindranath Tagore Hospital for further treatment and management.

What medical records revealed

The state consumer commission undertook an extensive review of the clinical records and noted that immediately after the hysterectomy, the patient’s condition began deteriorating.

The order records that her blood pressure became unstable, dressings were repeatedly soaked with fluid, abdominal pain persisted, and she stopped taking food.

On April 18, 2015, fluid leakage from the wound site was noted, and a CT scan was advised.

The commission observed that by April 20, 2015, imaging studies showed severe complications, including distended bowel loops and pelvic collection, suggesting serious post-operative issues.

Datta was eventually shifted to the CCU on April 21, 2015, after her condition worsened and she developed persistent tachycardia.

The commission noted that a urologist was consulted only on April 21, 2015, eleven days after the surgery and an exploratory laparotomy was ultimately undertaken on April 23, 2015.

Clinical findings during the second surgery recorded “small lateral leak from ureter.”

Defence by doctor, hospital

Dr Bhattacharya denied negligence and argued that ureter injury is a known complication in complex gynaecological procedures.

The defence maintained that the patient had several pre-existing medical conditions, including diabetes and prior surgeries, which complicated the treatment process.

The doctor contended that specialists were consulted as soon as complications emerged and multiple reputed surgeons and urologists were involved in subsequent procedures to repair the leak.

It was also argued that the complainant had intentionally suppressed aspects of her prior medical history.

Belle Vue Clinic separately argued that the complaint was barred by limitation and that several doctors who later treated the patient had not been impleaded as parties to the proceedings.

Commission applies Bolam test, Jacob Mathew principles

While examining the issue of negligence, the state consumer commission referred extensively to the Supreme Court’s landmark ruling in and the Bolam test governing medical negligence cases.

The commission acknowledged that ureter damage is a recognised complication of hysterectomy procedures and does not automatically amount to negligence.

However, it held that doctors are expected to maintain a high degree of vigilance, identify possible ureter injuries during or immediately after surgery and promptly involve specialists where necessary.

According to the consumer commission, no evidence was produced to show that the patient’s anatomy was unusually distorted due to endometriosis, scarring or tumours, situations where such injury could sometimes be unavoidable despite proper care.

The commission also found fault with the absence of any record showing that the specific risk of ureter injury had been explained to the patient before surgery as part of informed consent.

Hospital held vicariously liable

Rejecting Belle Vue Clinic’s attempt to distance itself from the treating surgeon, the consumer commission reiterated that hospitals and nursing homes remain vicariously liable for negligent acts of doctors operating under their umbrella, irrespective of whether they are permanent employees or visiting consultants.

“It is also settled that the patients often seek treatment based on the reputation of the hospital itself,” the consumer commission said while holding the nursing home jointly responsible.

Compensation awarded

Taking note of the repeated surgeries, prolonged suffering and financial burden borne by the complainant, the consumer commission directed the doctor and Belle Vue Clinic to jointly pay Rs 21 lakh towards medical expenses, Rs 5 lakh for physical and mental suffering and Rs 50,000 as litigation costs.

The amount is to be paid within eight weeks along with 9 per cent annual interest from the date of filing of the complaint.

The interest rate would increase to 12 per cent per annum in case of default.