State Consumer Disputes Redressal Commission
Dr.Amod Dattatraya Pendharkar vs Shri Babanrao Haribhau Pawar, on 22 March, 2010
CONSUMER DISPUTES REDRESSAL COMMISSION CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE, MUMBAI First Appeal no.616/2008 Date of Filing: 28/04/2008 Consumer Complaint No. 170/2007 District Consumer Forum: Satara Date of Order: 22/03/2010 Dr.Amod Dattatraya Pendharkar, Appellant R/at- Somwar Peth, (Org.Opp.Party no.1) Satara V/S 1. Shri Babanrao Haribhau Pawar, Respondents 17, Ajinkyatara, Talathi Hsg. Society, (Org.Complainant) Satara. 2. Dr.Sanjay Ramchandra Korde, (Org.Opp.Party no.2) R/at- Deshmukh Colony, Behind S.T.Colony, Satara. 3. Dr.Anil Yashwant Patil, (Org.opp.Party no.3) R/at- Yashwant Neuro Surgery & Trauma Centre, S.No. 313, Karanje Tarf, Satara. 4. M.D./Administrator, (Org.Opp.Party no.4) Sanjeevan Speciality Hospital, Sadar Bazar, Satara. And First Appeal no.1376/2008 Date of Filing: 22/10/2008 Consumer Complaint No. 170/2007 District Consumer Forum: Satara Date of Order: 22/03/2010 1. Shri Babarao Haribhau Pawar, Appellant 17, Ajinkyatara, Talathi Hsg. Society, (Org.Complainant) Satara. Through Power of Attorney Holder Shri S.B.Pawar. V/S 1. Dr.Amod Dattatraya Pendharkar, Respondents R/at- Somwar Peth, Satara. (Org.Opp.Party no.1) 2. Dr.Sanjay Ramchandra Korde, (Org.Opp.Party no.2) R/at- Deshmukh Colony, Behind S.T.Colony, Satara. 3. Dr.Anil Yashwant Patil, (Org.opp.Party no.3) R/at- Yashwant Neuro Surgery & Trauma Centre, S.No. 313, Karanjee Tarf, Satara. 4. M.D./Administrator, (Org.Opp.Party no.4) Sanjeevan Speciality Hospital, Sadar Bazar, Satara. Quorum : Justice Mr.S.B.Mhase, Hon'ble President Mr.S.R.Khanzode,Honble Judicial Member.
Mr.D.N.Khamatkar, Honble Member.
Present:
Adv.Mr.S.P.Kadam for org.complainant.
Dr.Amond D.Pendharkar/Org.Opp.party no.1 in person.
Adv.Mr.Milind Oak for Org.Opp.Party nos. 2 & 3.
Adv.Mr.Shailesh Chavan for Org.Opp.Party no.4.
:- ORAL ORDER :-
Per Shri S.B.Mhase, Honble President :
Both these appeals are directed against the order passed by District Forum, Satara in consumer complaint no.170/2007 decided on 27/03/2008. By the said order District Forum has directed the org.opp.party no.1 to pay an amount of Rs.5 Lakhs towards damages, compensation and mental agony. Org.Opp.party no.1 is also directed to pay Rs.1,000/- by way of cost of the complaint. As against org.opp.party nos.2 to 4 the complaint was dismissed. Being aggrieved and dissatisfied with the said order, org.opp.party no.1/Dr.Amod D.Pendharkar has preferred A.No.616/2008. In the said appeal org.complainant is respondent no.1 while org.opp.party nos. 2 to 4 are the respondent nos. 2 to 4 respectively.
Appeal no.1376/2008 has been filed by the org.complainant for enhancement of the amount of compensation, because according to him, District Forum ought to have passed an order of compensation amounting to Rs.18,21,668/- and cost of litigation. In the said appeal, the appellant is the org.complainant while the respondents are org.opp.parties.
In the above referred circumstances for the sake of brevity and clarity, we have referred org.complainant as Complainant while the org. opp.party nos. 1 to 4 have been referred to as respectively opp.party nos. 1,2,3,4.
The complainant was a Government servant, who had retired as a Deputy Director of Sugar. He was suffering from a problem of watering from nose like cold and therefore, he had approached opp.party no.2. Opp.party no.2 thereafter has referred the complainant to Suyog Diagnostic Center, which was being run by Dr.C.S.Kejale ( he is not party to the proceeding). On a reference by the opp.party no.2, it appears that radiological examination was carried out and report dated 21/05/2005 was given by Dr.Kejale. Radiograph was carried for Paranasal sinuses-Modified water view. The said radiograph findings are follows:
1. Both frontal sinuses are minimally nazy. The sinus walls are intact
2.No destruction of the sinus walls or fluid level is noted.
3.Bilateral ethmoid sinuses are clear.
4.No obvious haze, collection or mass is noted.
5.Both maxillary antra are well aerated. The sinus walls are intact.
6.Lobulated lesions are noted in both antra at inferior angels.
7.No destructions or fluid level is noted in antra.
8.Bony nasal septum is in midline.
9.Both inferior bony nasal turbinates are normal.
10.No nasal destruction is noted.
11.Visulaised sphenoid sinus is clear.
The opinion given by Dr.Kejale is Frontal sinusitis. Bilateral antral polyps. Central bony nasal septum is noted with normal inferior turbinates. When the opp.party no.2 noted this report of radiologist from Suyog Diagnostic Center, he found that it is the case to be dealt with ENT specialist. Dr.S.R.Korde/opp.party no.2 is M.D. in medicine and was dealing with the cases, more particularly of the heart. Therefore, opp.party no.2 referred the complaint to opp.party no.1, who is an ENT specialist. It appears that after the report of 21/05/2005, the complainant had been to the opp.party no.1 on 16/06/2005 and that the opp.party no.1 advised the complainant for endoscopic surgery of the bilateral antral polyps and accordingly, it was decided that the operation for the bilateral polyps shall be carried on 17/06/2005 i.e. next day of the visit. On 17/06/2005 the complainant was admitted with opp.party no.1, namely, Shriram Nursing Home. The complainant has signed the consent form on 17/06/2005 and he had given consent for endoscopic ethmoidectomy with polypectory plus ITC sinusitis etc. After the consent as referred to above, the operation was carried out on 17/06/2005. Operation note shows that at 2.00 p.m. the said operation was carried. When after the operation the complainant was brought to the ward, he was normal. However, it appears that on 18/06/2005 the difficulty started with the complainant. At about 3.30 p.m., the note shows, that, the complainant had taken oral fluids, coughed, omitted and aspirated. So, immediately nasal pach removed and the patient was referred to Sanjeevan ICU under opp.party no.2/Dr.Korde to do aspiration pneumonitis and assessment of cardiac status due to old age of patient. It is stated that on examination no active nasal blood, watering from the nose. Thus, under these circumstances, on 18/06/2005 the complainant was shifted to the Sanjeevan hospital. The patient was in the Sanjeevan hospital up to 27/06/2005 and thereafter, he was discharged and transferred to Pune. It is to be noted that when the patient was in Sanjeevan hospital under opp.party no.2 a C.T. Scan was carried out on 20/06/2005. In the said C.T. Scan the opinion was given by Dr.D.N.Shete that Normal C.T. Scan study of brain for the pneumocranium.
This was based on findings in the said report. However, the inference of pneumonitis was drawn by Dr.Shetye because of evidence of pneumocranium was noted, namely, air pockets are seen in both the front parietal, and the temporal region of flax. Thus, it can be safely stated that on 20/06/2005, doctors at Sanjeevan hospital became aware of the fact that the complainant/patient is suffering from pneumocranium and not from pneumonitis. After that the patient was shifted to Sahyadri hospital at Pune. It appears that there were three operations carried out. First operation was for LEFT FRONTAL TWIST DRILL AND DECOMPRESSION OF PNEUMOCEPHALUS UNDER LA. This, operation was carried out under local anesthesia in supine position under all aseptic precautions a twist drill was made on the frontal convexity and the dura was incised to let gush of air out. Closed in single layer after ensuring haemostasis. Second operation was carried for BILATERAL FRONTAL BURRHOLES AND DECOMPRESSION OF PNEUMOCELHALUS WITH PLACEMENT OF SUBDURAL CATHETORS UNDER LA DONE ON 28/06/2005, and the third operation was carried for BIFRONTAL CRANIOTOMY AND REPAIR O FTHE DURAL DEFECTS DONE ON 01/07/2005. The patient was discharged after these operations on 06/09/2005.
Thus, in between 28/06/2005 to 06/09/2005 three operation as stated above were performed by Dr.Charudatta Apte of Sahyadri hospital. The summary and condition at the discharge is that This elderly gentleman presented with tension pneumocephalus after nasal polypectomy. His CT showed defects in anterior skull base (apart from pneumocephalus) which mostly were congenital, but leak from them till now was contained by nasal mucosa. Copious rhiorrhea may have been precipitated by polyectomy which also lead to pneumocephalus by breaching the nasal mucosa. He did not respond to decompressive release of pneumocephalus and required bilateral repair of the dural defects with packing of basal skull sinuses. Repair of the dura was essential as air kept on accumulating despite repeated taps and he had developed tension pneumocephalus with severe mass effect on the brain. With such defect, CSF rhinorrhea and meningitis are also common if left unrepaired. He tolerated the surgery well. He has a prolonged hospital stay primarily due to very slow improvement in depressed sensorium and compounded by chest infection, but these have been cleared and now he is off tracehostomy for more than 10 days and is ambulant with support. His confusion is expected to recover completely over next few weeks. The rest is not relevant for our purpose.
Thus, after having recovered the patient with the three operations, the complainant was taken to home. However, since he could not come to the normal life as he was prior to the operations and since he had problem in sitting, walking, recalling memories, the complainant came with the case that all this happened because of negligent operations on the part of opp.party nos. 1 to 4.
Though, opp.parties have denied the negligence on their part, the fact which have been stated above so far as medical treatment carried out on admission of the patient are concerned are undisputed between the parties. The question which required to be addressed by the State Commission is as to whether there was deficiency on the part of opp.parties in giving medical treatment to the complainant. Ld.Counsel, who appeared for the complainant submitted that report as seen from the Sahyadri hospital at the time of discharge shows that the patient had suffered from pneumocephalus. The emphasis is in put on Copious rhiorrhea may have been precipitated by polyectomy which also lead to pneumocephalus by breaching the nasal mucosa and on this basis, it is submitted that while carrying out the endoscopic operation, the opp.party no.1 has caused CSF rhinorrhea which ultimately lead to pneumocephalus by breaching the nasal mucosa, and thus, pneumocephalus was the result of the operation act of opponent no.1.
Adv.Mr.Kadam submitted that even though it is a endoscopic operation of bilateral polyps, there are repercussions and side effects of the same. Opp.party should have relied upon the radiograph of Sanjeevan hospital given by Dr.Korde and he should have further investigated the complainant. According to him, simply x-ay was not sufficient but opp.party should have made a C.T. Scan, histopathological report to find any further complications. He submitted that Dr.Apte has found that apart from the p pneumonitis the complainant was having congenital defect in the nasal skull base and that would have been detected had further investigation been carried out. In short, their case is that opp.party no.1 has carried out the endoscopic operation in such a negligent manner that had detected into nasal mucosa which allowed to passage of air into brain which resulted into pneumocephalus. He further submitted that these complications were not pertaining to the ENT but it was a problem to be dealt by neurosurgeon. Therefore, Ld.Counsel submitted that the minimum it was necessary fro the opponents that either the neurosurgeon in the Sanjeevan hospital should have carried out the operation or they should have discharged the patient so as to take the patient to Pune and therefore, he submitted that opp.party no.3 being a neurosurgeon of the Sanjeevan hospital was equally responsible for not giving the said treatment. The grievance of the complainant is that patient was unnecessarily kept in the hospital till the date of discharge, namely, up to 27/5/2005. The patient was unnecessary in the hospital from 18/05/2005 up to 27/05/2005 and ultimately, it deteriorated the condition and thus, they claimed that opp.party nos. 1 to 4 are responsible for the deficiency in service.
Dr.Pendharkar, who is opp.party no.1 has personally argued the matter in person and submitted that on the basis of the report of Dr.Kenjale, who is a radiologist it was clear to him that the complainant was suffering from frontal sinusitis and bilateral antral polyps. He submitted that so far as the frontal sinusitis is concerned, no operation is necessary since it may be treated with antibiotics. However, the operation was necessary for bilateral antral polyps and accordingly, the operation was planned. He submitted that the complainant was given information in respect of the said operation and he submitted that so far as the operation of the bilateral polyps is concerned, it is properly carried out. He submitted that nowhere Dr.Apte of Sahyadri hospital has stated that operation was improperly carried out and of not of standard quality as required by ENT surgeon. He submitted that in such an operation the pneumocephalus is usual complication and therefore, it cannot be said that because pneumocephalus has taken place, the operation was carried out negligently. He submitted that in any operation since it was/is an intervention in body, some complications are expected either as a result of operation procedure or as a result of the post operative treatment. He submitted that even assuming that, pneumocephalus s has been caused because after removal of the bilateral polyps from the mucosa the air entered into the brain, yet he submitted that if bilateral polyps is to be removed one has to go up to the mucosa because these bilateral polyps like stem come out of from the pneumocramium mucosa and if they have to be removed from the bottom one has to enter into to membrane mucosa and if that happened, he submitted that membrane mucosa is such a difficult part which can be calculated in microns only and therefore, possibility of passing of air from the membrane mucosa is one of the usual complication in such a surgery and it cannot be attributed towards deficiency in service on the part of the doctor. He submitted that when such complication takes place, it requires to be treated by further treatment from neurosurgeon. Therefore, he submitted that when he realized on 18/05/2005 that the patient is omitting and respiratory system to some extent affected and patient is likely to go in comma, he shifted the patient to Sanjeevan hospital which is a polyclinic where ICU unit is available with heart expert- Dr.Korde. He submitted that neurosurgeon is also available in the same hospital and thus, he submitted that there was no negligence on his part and moment it is found that case is required to be dealt by different expert, he immediately on 18/05/2005 shifted the patient to the Sahyadri hospital. He also invited our attention to C.T. Scan report of 20/06/2005 and showed that as per report Normal C.T. Study of brain except for the pnemocranium. Thus, he pointed out to us that even in C.T. Scan report which was noticed by Dr.C.Apte pneumocephalus. Said fact also was not evident and was not traced when the C.T. Scan report was carried out at earliest possible in Sanjeevan hospital. In short he tried to submit that the report which he tried to press at the time of operation was not showing that patient was suffering from any skull base defect. Therefore, there was nothing on record to show and give warning to him so that further investigation of complaint required to be carried out. Therefore, he submitted that he relied on radiograph report and has carried out the operation. According to him, therefore he was not negligent and/or there is no deficiency in service on his part. He also submitted that the patient was treated as VIP patient since he was retried person from Co-operative Department. He submitted that even the charges for hospitalization were not taken in advance and till date the said charges are not taken. In short, he tried to make out the case, since the charges and fees are not taken, there is no relation of consumer and service provider and the complaint is not tenable.
So far as the opp.party nos. 2 to 4 are concerned, what we find that complainant was admitted in their hospital and was there up to 27/05/2005. They have carried certain investigations but it appears that they suggested the patient at one point of time, since he was suffering from pneumonitis and pneumocranium, it requires to be operated. When he asked the patient whether he desires to operate at Sahyadri hospital or Pune, the complainant and his relatives expressed their willingness to go to Pune and discharge was given to them. Therefore for the so called negligence which have been agitated by the complainant for further operations which were required, opp.party nos. 2 and 3 are not responsible at this stage. The finding recorded by the District Forum exonerating them from the liability is proper and does not require any interference at the hands of State Commission.
Now coming to the main question whether opp.party no.1 is negligent and/or rendered deficient service to the complainant, we need not dialect on the facts once again since those are admitted. We have observed in the beginning itself the finding recorded on discharge card by Dr.Apte of Sahyadri hospital and it will not be possible to come to conclusion relying upon those findings or observations as to whether opp.party no.1 was negligent in carrying out the operation. Because Dr.Apte has seen the patient subsequent to operation and he has only noted that CSF rhinorrhea may have been percepted by polyectomy which also lead to pneumocephalus by breaching the nasal mucosa. He did not respond to decompressive release of pneumocephalus and required bilateral repair of the dura defects with packing of basal skull sinuses. Repair of the dura was essential as air kept on accumulating despite repeated taps and he had developed tension pneumocephalus with severe mass effect on the brain. With such defect, CSF rhinorrhea and meningitis are also common if left unrepaired. He tolerated the surgery well. He has a prolonged hospital stay primarily due to very slow improvement in depressed sensorium and compounded by chest infection, but this was cleared and he was off tracheostomy for more than 10 days and was ambulant with support. His condition was expected to recover completely over next few weeks. It further required to be noted that defect in antral skull base which was found to be congenital from the another defect than the pneumonitis. For that defect the opp.party cannot be held to be responsible because it is a defect by birth and thereby, finding defect in antral skull base, the opp.party no.1 cannot be held responsible. Responsibility of the opp.party no.1 is to the extent of pneumonitis only. Looking to the operation, one thing is very certain and clear that bilateral polyps was developed from the membrane mucosa and therefore, if one has to remove the bilateral polyps from its base so it should not recur, the doctor has to go to the root of the polyps and unless and until he removes the antral membrane mucosa from the bottom, it can not be removed completely. As we have observed that membrane mucosa is a thin lair which can be measured in microns and therefore, when polyps are removed from this membrane size mucosa lair, entrance of air through such lair appears to be possible.
In order to buttress the submission, opp.party no.1 has relied upon material from Management of Intracranial Complications of Sinus Surgery by Deborah Schnipper, MD, Jeffery H.Spiegel, MD, FACS. Specifically he relied upon the operation of pneumocephalus and tension pneumocephalus represent rare complications of endoscopic sinus surgery. Stammberger (66) observed (----- indicates the portion not legible and readable) that --- one case of pneumocephalus in more than 6000 patients undergoing--- in a 15 year period. Any injury that creates a communication between --- outside environment and the epidural,subdural, or subarachnoid --- pneumocephalus (67). Pneumocephalus following nasal -----occurs most often because of iatrogenic damage to the
---(68). More than 65 cm of intracranial air is thought to be --- for the development of tension pneumocephalus (69). Mechanism ---- the development of pneumocephalus include the ball-valve mechanism and the inverted-bottle mechanism. In the ball-valve mechanism, an increase in nasopharyngeal pressure caused by nose blowing, sneezing and coughing forces air through the cranial opening. The inverted-bottle mechanism occurs when CSF drains out of a dural tear creating negative intracranial pressure. The negative inctracranial pressure draws air through the dural defect to relieve the pressure gradient. Tension pneumocephalus with mass effect also develops by two different mechanism. The use of intracranial pressure in the presence of intracranial air and a closed cranium (70). The increased intracranial pressure resolves after the cessation of nitrous oxide use. The other mechanism involves increased extracranial pressure that forces air through a cranial perforation. Postoperatively, the anesthesiologist should avoid assisted ventilation using a facemask and bagging because air under pressure may be injected intracanially and result in pneumocephalus. Patient should be advised not to blow the nose postoperatively.
Thus, we find that passing of air is normal phenomenon in such operation. It is very difficult to say that doctor was negligent and service was not provided up to standard. We have to keep in mind that service which is required to be given by any doctor is of the ordinary doctor and not of an expert doctor. Here in present case, the doctor/opp.paty no.1 is qualified as ENT. He has degree in post graduate. Apart from that it is admitted position that so far as removal of bilateral polyps is concerned, there is no recurrence and/or said operation was in any way defective. The problem was developed after removal of the polyps when the membrane mucosa was affected and air passed into brain as found in C.T.Scan which made further complication required to be dealt by the neurosurgeon. However, that is one of the consequences of such surgery which unfortunately has taken place in case of present complainant.
What we find that other postoperative complications cannot be attributed to the surgeon individually unless there is material on record to show that service of standard quality was not rendered by the surgeon at particular point of time. Here in the present matter the later finding of Dr.C.Apate will be justifiable reasons for as to why three operations were carried out as Neurosurgeon. If we accept that pneumocephalus is one of the consequence of the nasal surgery, then in that circumstances because said complications taken place it cannot be inferred that doctor who had carried out surgery was negligent in carrying out the operation. Thus viewed, we find that opp.party no.1 was not negligent. Apart from that the moment he found that the patient was into complication he himself removed and shifted him to the Sanjeevan hospital and at that hospital admittedly services of the doctors dealing with the cardiac problem and neurosurgeon were available. It is to be noted that once the pneumocephalus is caused, it is the neurosurgeon who is supposed to treat patient and not the ENT surgeon. Therefore, opponent no.1 rightly shifted complainant to Sanjeevan hospital where along with heart expert neurosurgeon was available. Therefore, so far as opp.party no.1 is concerned, we do not find that he has neglected the patient. It is further to be noted that it is the admitted position that while shifting the patient from his clinic to the Sahyadri hospital he himself accompanied the patient and when the patient was in the said hospital till the date of discharge he himself accompanied him. That conduct shows that in post operative status also he had not given up the patient. He continued to provide his services to the said patient.
So, after taken into consideration the total facts and circumstances of case, we are of the view that the finding recorded by the District Forum holding opp.party no.1 negligent is not correct. Therefore, we quash and set aside the said finding of District Forum.
Since we have noted that opp.party no.1 is not responsible and since we have also observed that opp.party nos. 2 to 4 are not responsible for the complications in post operative treatment, the complaint has to be dismissed as against opp.party nos.1 to 4.
So far as enhancement of the compensation is concerned, we need not to consider it because we have already found that there is no deficiency in service on the part of opp.parties. Then in those circumstances, it is futile to enter into enhancement of compensation.
So far as the relationship of the complainant and opp.party as consumer & service provider is concerned, it is admitted by parties that bills are not accepted by the opp.party no.1, yet facts remains that opponent no.1 has charged and bills were tendered. Therefore, looking to the status of the person, it appears that if the charges are deferred. The system of deferred charges is permissible under clause 2 (d) under Consumer Protection Act, 1986. Therefore the submission made by the opp.party no.1 that there is no relationship of consumer and service provider is not sustainable in law in view of the definition referred in clause 2 (d) of Consumer Protection Act, 1986. The appeal filed by the org.opp.party no.1 stands allowed. Hence, we pass the following order:-
:-ORDER-:
1.
Appeal no. 616/2008 is allowed.
2. Appeal no. 1376/2008 stands dismissed.
3. Order passed by the District Consumer Forum, Satara dated 27/03/2008 is hereby quashed and set aside.
4. In the given circumstances parties are left to bear their own costs.
5. Dictated on dais in presence of parties.
6. Copies of the order herein be furnished to the parties as per rules.
(D.N.Khamatkar) (S.R.Khanzode) (S.B.Mhase) Member Judicial Member President Nbh