State Consumer Disputes Redressal Commission
Apollo Children Heart Hospital ... vs Master Purushottam ... on 12 July, 2012
BEFORE THE A
BEFORE THE
A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.
FA.No.1191/2010
against C C.No.652/2008 District Forum-I,
Hyderabad.
Between
1.Apollo Childrens Heart Hospital Apollo Hospitals, Jubilee Hills, Hyderabad-500 033.
Rep. by its Managing Director.
2. Dr.K.S.Murthy MS MCH, Chief Departent of Pediatric Surgery Apollo Childrens Heart Hospital, Apollo Hospitals, Jubilee Hills, Hyderabad-500 033. ..Appellants/ O.P.Nos.1 & 2 And
1. Master Purushottam S/o.P.Nagabhushanam Aged about 3 years, Indian, Occ:Nil, Being Minor, rep. by his father and natural Guardian Sri P.Nagabusham, R/o.Qtr.
No.D-3/2, Type-II, Site-A, Sivarampally, Hyderabad-52.
2. Sri P.Nagabhushanam, S/o.late Mallappa, Aged about 42 years, Occ:Head Constable /ADI, R/o.Qtr.
No.D-3/2, Type-II, Site-A, Sivarampally, Hyderabad-52. Respondents/ Complainants
3. United India Insurance Co. Ltd., 2-4-1/4, 1st floor, M.G.Road, Secunderabad. Respondent/ O.P.No.3.
Counsel for the Appellants : M/s.Indus Law Firm Counsel for the Respondents :
M/s.V.Gourisankara Rao-R1 & R2 R3-served.
QUORUM:
THE HONBLE SRI JUSTICE D.APPA RAO, PRESIDENT, AND SMT.M.SHREESHA, HONBLE MEMBER, THURSDAY, THE TWELFTH DAY OF JULY, TWO THOUSAND TWELVE Order (Per Smt.M.Shreesha, Honble Member) *** Aggrieved by the orders in C.C.No.652/2008 on the file of District Forum-I, Hyderabad, opposite parties preferred this appeal.
The brief facts as set out in the complaint are that the complainant No.1 is the minor son of complainant No.2, who was working as head constable in Sardar Vallabhabhai Patel National Police Academy and he was born on 03-1-2005. The complainant submitted that on 05-9-2005, complainant was admitted in opposite party No.1 hospital with complaint of fever-intermittent type cold and cough for 10-15 days having already consulted at Medwin hospitals. Opposite party No.2 is the Chief of Department of Head Cardiac Surgery in opposite party No.1 hospital and he examined the child and after conducting CT scan, MRI scan, Ultrasound guided FNAC and other tests, diagnosed that the child was having a large intrathoracic tumor on the left side Neuroblastoma and suggested an operation for excision of the said tumor. Complainant No.2 consented for surgery and the surgery was conducted by opposite party No.2 on 15-9-2005. The complainant submitted that the child had weakness in left upper limb immediately after the operation and was not able to move his left hand and though he was put on physiotherapy there was no improvement but he was discharged on 25-10-2005 with an advise to take physiotherapy and come for review after one month and meet the plastic surgeon Dr.Bharatendu Swain. Accordingly the patient was shown to Dr.Bharatendu Swain, Plastic surgeon and Dr.G.Rajasekhar, Consultant Neurologist who report was consist with severe brachial plexus lesion. The complainant submitted that further more nerve conduction study tests on 24-4-2005, 28-12-2005 by Dr.Sudheer were suggestive of severe brachial plexus injury predominantly involving distal cord and nerves. The complainant submitted that on the advise of the Plastic Surgeon, the patient was admitted in Cancer block on 02-1-2006 and excision of neuroma and introplexal neurotization was done on 03-1-2006 but there was no improvement in left upper limb at the time of discharge on 11-1-2006 and chemotherapy was planned on 17-1-2006. The complainant submitted that Biopsy of removed lymph nodes was positive for metastic disease and the patient was given 13 cycles of chemotherapy between 19-1-2006 and 05-122006 and as PET CT evolution showed no evidence of cancer, further chemotherapy was stopped and there was no improvement in left upper limb inspite of physiotherapy. Dr.S.V.S.S.Prasad, Consultant Medical Oncologist was consulted thrice and on 16-6-2007, he observed that the patient was unable to use left wrist joint or fingers and the same was also observed during review after 3 months on 03-10-2007 and inspite of physiotherapy and drugs, there was no improvement and the certificates issued on 11-7-2008 and 18-7-2008 by Chief Medical Officer, Sardar Vallabhabhai Patel National Police Academy reveal that:
i) the patient is still suffering from weakness of left hand with wrist drop
ii) motor power of left wrist is almost zero
iii) No sweating on left half of the body
iv) Shortening of left hand when compared to right hand and wasting of muscles of left hand The complainant submitted that the improper surgery performed by opposite party No.2 resulted in severe brachial plexus injury and though about Rs.3,00,000/- was spent, there was no improvement and the principles of Res ipsa loquitor squarely applies and submitted that there is gross negligence on the part of the opposite parties. Hence the complaint to the opposite parties to pay compensation of Rs.19,50,000/- towards severe inconvenience, hardship and mental agony together with costs of Rs.25,000/-.
Opposite parties 1 and 2 filed written version resisting the complaint. They submitted that was rapid growth in the chest cavity of the patient compressing blood vessels, airways and spinal cord. They submitted that complainant No.2 was explained of the risk and also likelihood of injury to the surrounding structures and risk to life and on 15-9-2005, lest posterio lateral thoracotomy was done and the mass was dissected from the surrounding structures without damaging the blood vessels, removed in toto after ligating the neural pedicle. The patient had weakness in left upper limb and was unable to lift it and nerve conduction study report on 22-9-2005 was suggestive of severe involvement of the entire brachial plexus/roots in all muscles.
Histopathology examination of the tumor revealed poorly differentiated type neuroblastoma and as the tumor arose from the nerve roots from the spinal cord extending into thoracic cavity and was closely abutting to the blood vessels, it was difficult to differentiate the tumor from the normal nerves and though the tumor was removed with utmost care and caution, the patient suffered brachial plexus injury. Surgery was planned on 11-10-2005 for localizing the place of injury but was postponed due to reluctance of complainant No.2 as the patient was improving and hence the patient was discharged on 25-10-2005 with advice of physiotherapy and review after one month. The patient was brought in November, 2005 with complaint of inability to lift the left hand and nerve conduction study on 14-12-2005 revealed absent responses from left median, ulnar and radial nerves, EMG of left Deltoid did not show any activity and neurogenic potentials, left Trapezium was normal consistent with severe brachial plexus injury. Physiotherapy was done as a preliminary step for conducting reconstructive surgery. The opposite parties submitted that the patient was brought on 02-1-2006 with inability to move his left upper limb and was surgery was performed by Dr.Bharatendu Swain, the Plastic Surgeon on 03-1-2006 removing three lymph nodes which showed metastasis while exploring the site of injury of brachial plexus injury and it was noticed that the tumor spread to the neck, which was removed and implantation of nerve was done to paralyzed muscle. As there was metastasis, the patient was administered 13 cycles of chemotherapy and was cured of cancer and was discharged on 11-1-2006 with advice to continue physiotherapy and follow up by Dr.Baratendu Swain and left upper limb function improved from a completely frail state to a functionally useful left upper limb. The opposite parties further submitted that the surgery has certain inherent risks and through the surgery was done with utmost care and caution, the patient had brachial plexus injury because of the complicated location of tumor and its connection with spinal cord nerves and submitted that there was no negligence on their part in treating the patient and prayed for dismissal of the complaint.
Third opposite party filed counter contending that it was unnecessarily brought on record by the complainant and opposite parties. It submitted that opposite parties did not inform about the joining of the patient in opposite party No.1 hospital and it is liable when there is omission or negligence in profession and if the error or negligence is not bonafide, the said transaction falls within exclusion clause 7 (d)(ii) and X of the policy and prayed for dismissal of the complaint.
Based on the evidence adduced i.e. Exs.A1 to A22 and B1 and the pleadings put forward, the District Forum allowed the complaint in part directing the opposite parties to pay compensation of Rs.8,00,000/- to the complainant together with costs of Rs.5,000/-.
Aggrieved by the said order, opposite parties preferred this appeal.
The main point that falls for consideration is whether the opposite parties in the conduction of operation on 15-9-2005 i.e. for excision of thorasic tumour, were negligent, resulting in left brachial plexus injury and also if cancer in the lymph nodes was ignored by the appellant doctors at that point of time.
The facts not in dispute are that Master Purushottam, the first complainant was admitted on 05-9- 2005 in opposite party No.1 hospital for fever, cough and cold for the last 15 days and on investigation, it was revealed that there was a large intra thorasic tumor on the left side, neuroblastoma and a surgery was advised which was excision of this thorasic tumor and a CT scan was conducted on 6-9-2005 and a MRI scan was conducted on 07-9-2005 showing a large well defined soft tissue intensity intra thorasic mass seen in left henithorasic with its epicenter in posterior mediastinum 7 x 5 cms. Mass reached the thorasic inlet. Mass in close continuity with Aortic arch and descending aorta with extension into AORTO Pulmonary window. Mass also in contigue on to the pulmonary trunk and left PA. These findings are evidenced in the discharge summary, Ex.A1. Post operation had weakness in left upper limb and according to the advise of the plastic surgeon, MRI of brachial plexus and nerve conditional studies were done.
At the time of discharge the chest wound was healthy. The baby was asked to come for review after a month. The histo pathology report showed neuroblastoma and the neural extension showed no tumor. Nerve conduotion study on 17-10-12005 showed active clear notion in all muscles and spontaneous activity in the form fibrallations. It is the complainants case that because of improper surgery, the patient developed weakness in the left upper limb and was not able to move his left hand which resulted in left brachial plexus injury leading to problems in left upper limb.
It is the appellant/opposite partys case that all the tests revealed a large tumor in the chest cavity compressing important blood vessels, airways and spinal cord and there was no skeletal metastasis.
The tumor was removed on 15-9-2005 and the patient suffered brachial plexus injury. It is the appellants case that they informed the complainants family of the inherent risks and the second complainant has also signed the consent form dated 14-9-2005 which includes surgical risks of bleeding, tumour spillage, damage to great vessels and nerves. The appellant contend that brachial plexus injury is nothing but damage to nerves and the patient was completely cured of the life threatening cancer and the patient was on constant follow up by Doctor Swain and the left upper limb function improved from a completely frail state to a functionally useful upper limb. Treatment for brachial plexus injury is physiotherapy.
The counsel for the complainant drew our attention to Ex.A7 which is the impression of the Neurologist showing that the study is suggestive of several brachial plexus injury predominantly involving distal cord and nerves. It is an admitted fact that the patient suffered from left brachial plexus injury as evidenced under Ex.A10 which is a consequence of the neuroblastoma on 15-9-2005. Ex.A11 is the Department of Medical Oncology report dated 23-1-2006 stating that the patient had lymph nodal involvement with neuroblastoma for which chemotherapy was advised. Ex.A13 dated 05-12-2006 shows that the pet-CT evaluation showed no evidence of the disease, it was decided to halt further chemotherapy.
To reiterate, it is not in dispute that the removal of the tumour led to brachial plexus injury. But it is the case of the appellant/opposite party that it is an inherent risk which was explained to the complainant and consent was also taken.
It is not the case of the complainants that informed consent was not taken. P-45 of the case sheet, Ex.B1, is the consent form, which clearly states that damage to great vessels and nerves is one of the risks involved in the procedure which was signed by the patients father. It is also an admitted fact that thorsaic tumour excision was done on 15-9-2005 and thereafter the report show that there is no tumor. The learned counsel for the appellant relied on the literature from American Cancer Society about Neuroblastoma which reads as follows:
Neuroblastoma is a malignant (cancer) tumor arises from nerve cells and often involves in children. The best treatment for this disease is surgical excision of entire tumour aided by pre or post operative chemotheraphy (anti cancer drugs) o Radiotherapy (Irradiation) or combined.
Incomplete excision of tumor can cause recurrence, thereby leading to poor prognosis (long term outcome). It is very important to remove the entire tumor without any remnants, this will help in good outcome.
Like all forms of treatment, surgery poses some risk of complications. These can include reactions to anaesthesia, excess bleeding and damage to blood vessels, kidneys, other organs or nerves. Most complications are minor, but serious ones are possible.
Complications are more like if the tumor is large and growing into blood vessels or nerves.
Cancer tumour (Neuroblastoma) arose from nerve routes from the spinal cord extending into the thoracic cavity and closely abutting to the important blood vessels. It was, therefore, very difficult to differentiate or demarcate the tumor from the normal nerves. Despite the fact that the tumor was removed on 15-9-2005 with utmost care and caution the patient suffered brachial plexus injury.
The complainant himself stated in his deposition that the cancer in his son has now been cured. It is his only case that left brachial plexus injury is not an inherent risk but is a consequence of the negligent operation done on 15-9-2005. The doctor in his deposition stated that the patient needed intensive physiotherapy and denied that the complications arose because of improper surgery. A brief perusal of pages 25 and 26 of Ex.B1 show that the doctor has sought the opinion of the Neurophysician, Dr.Suhasini Prabhakar and that brachial plexus trauma is because of the injury and the doctor also deposed that the patient recovered 90% of his normal strength. It is only because of the precarious position of the tumour that brachial plexus injury occurred. P.W.1 himself admitted that there is slight improvement after physiotherapy. It is not in dispute that the patient was in constant follow up with Dr.Swain. The medical literature supports that brachial plexus injury is an inherent risk of the surgery where the tumour is located in a precarious position. R.W.1 in his cross examination has categorically stated that there is 90% recovery in the condition of the patient. The learned counsel for the complainant relied on Ex.A22 which is the certificate given by Chief Medical officer of National Police Academy by name Dr.D.Chandrasekhar, who explained the present status of the patient. It is no where stated in this letter that there is any negligence in the conduction of the operation or in the line of the treatment given by the opposite parties. The complainant also did not file any expert opinion to establish that brachial plexus injury in such a situation is because of the negligent operation of the opposite parties. It is also not in dispute that multiple lymph nodes in the posterior triangle were noticed in the neck and Dr.Swain performed the surgery on 13-1-2006 and 3 lymph nodes were removed and the remnant tumour was removed. We find force in the contention of the appellants that even after extensive removal of the tumour conducted on 15-9-2005, there was tumour spread to the distant region, which was removed and the patient was discharged. The patient admittedly underwent 13 cycles of chemotherapy and was cured from cancer and the patient was also on constant follow up with Dr.Swain and the left upper limb function improved to a functionally useful upper limb.
We rely on the decision of the Apex court and National Commission, with reference to duties of the doctors to the patients, the National Commission in TARUN THAKORE v. Dr.NOSHIR M.SHROFF in O.P.No.215/2000 dated 24-9-2002 reported in Landmark judgements on Consumer Protection P-410 held as follows:
The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advise and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires In INDIAN MEDICAL ASSN. v. V.P.SHANTHA (1995) 6 SCC 651 the court approved a passage from Jackson and Powell on Professional Negligence and held that The approach of the courts is to require that professional men should possess a certain minimum degree of competence and that they should exercise reasonable care in the discharge of their duties. In general, a professional man owns to his client a duty in tort as well as in contract to exercise reasonable care in giving advise or performing services.
Supreme Court then opined as under:
The skill of medical practitioner differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence.
We also rely on the decision of Apex Court in Kusum Sarma vs. Batra Hospital reported in 2010 Mad. LJ-3-512 in which the Apex Court held that negligence cannot be attributed to a doctor as long as he performs his duties with reasonable skill and competence and exercised the skill as per normal medical parlance. We also rely on the decision of the Apex Court in Vinitha Ashok vs. Lakshmi Hospital reported in 2001 CPJ 797 in which the Apex Court clearly laid down as follows:
Thus in large majority of cases, it has been demonstrated that a doctor will be liable for negligence in respect of diagnosis and treatment inspite of a body of professional opinion approving his conduct where it has not been established to the Courts satisfaction that such opinion relied on is reasonable or responsible. If it can be demonstrated that the professional opinion is not capable of withstanding the logical analysis, the Court would be entitled to hold that the body of opinion is not reasonable or responsible.
Therefore in the absence of any expert opinion to establish that the brachial plexus injury was because of the negligent operation of the appellant/opposite parties, we are of the considered view that there is no negligence and the principle of Res Ipsa Loquitor applied by the District Forum cannot be applied in the instant case as it is not a case which can be adjudicated on the principle of Things Appear As They Are. The medical literature P-41 of the District Forum record filed by the opposite party read together with the consent form, the case sheet and the deposition of the doctors evidences that there is no negligence on behalf of the opposite parties and there is no expert opinion also filed on behalf of the complainant to prove otherwise. The complainant failed to establish that the appellant/opposite parties did not follow the procedure of normal medical parlance in the very conduction of the operation or in the line of treatment accorded to the patient and therefore we are of the considered view that no negligence can be attributed to the opposite parties and consequently the complaint is dismissed.
In the result this appeal is allowed and the order of the District Forum is set aside and consequently the complaint is dismissed.
No costs.
Sd/-PRESIDENT.
Sd/-MEMBER.
JM 12-7-2012