State Consumer Disputes Redressal Commission
Anwarul Haque Ansari vs Dr.Amit Shukla on 21 October, 2010
CONSUMER DISPUTES REDRESSAL COMMISSION CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASTHRA STATE, MUMBAI Date of filing : 29/09/2008 CONSUMER COMPLAINT NO. 372 OF 1998 Date of order : 21/10/2010 Anwarul Haque Ansari R/at Room No.5, 1st floor, Club Bldg., Potia Compound, Belasis Road, Mumbai 400 008. Complainant. V/s. Dr.Amit Shukla Attached to Hinduja Hospital, Mahim, Mumbai. Opposite Party Quorum: Mr.S.R.Khanzode, Honble Presiding Judicial Member
Mr.Dhanraj Khamatkar, Honble Member Present : Mr.U.B. Wavikar, Advocate for the complainant.
Dr.M.S. Kamath, A.R. for O.P.
-: ORDER :-
Per Mr.Dhanraj Khamatkar, Honble Member Mr.Anwarul Haque Ansari had filed a consumer complaint on 29/09/2008 under section 12 of Consumer Protection Act, 1986. The complaint was subsequently numbered as Consumer Complaint No.372/1998.
The facts of the complaint in brief can be summaried as under :-
Complainant was having a gland on right side face and hence, he approached to O.P. for treatment on or about 17/09/1997. O.P. after diagnosis advised him for entire check-up. Accordingly, he did check-up and after seeing the report of the check-up, O.P. advised him for operation. Accordingly, complainant got admitted in the Hinduja Hospital on 24/09/1997 and he was operated on 25/09/1997. He was in the hospital from 24/09/1997 to 30/09/1997.
The complainant observed that after surgery, his face was completely changed and got slanted and complainant attributed this to the faulty surgery done by the O.P. When this fact was brought to the notice of the O.P., O.P. assured him that he will be alright within two months. When after two months, there was no recovery, O.P. directed the complainant to Dr.Anil Tibrewala, who is a Plastic Surgeon. Dr.Tibrewala also advised him to wait for a month and after a month also there was no improvement and hence, Dr.Tibrewala advised him re-operation. Thereafter, O.P. advised him to approach Dr.Nadir Bharucha, who is a Neurologist. Dr.Tibrewala as well as Dr.Bharucha had not given any guarantee that he will be alright. On the advise of O.P. he went to the Jaslok Hospital for plastic surgery and incurred expenses of Rs.60,000/-. However, there was no improvement. Hence, he had given a legal notice to the O.P. on 24/06/1998. O.P. had not given him any reply. However, Hinduja Hospital had given him a reply denying any liability. The complainant contends that he suffered physically, mentally and monetary and hence, he has filed consumer complaint with following prayers :-
1. To direct the Opposite Party to pay Rs.6,00,000/- as the compensation for the permanent disability to the Complainant.
2. To direct the Opposite Party to pay the Complainant Rs.2,00,000/- as the compensation for loss of business and future prospects.
3. To direct the Opposite Party to pay the amount of Rs.1,01,379/-
incurred by the Complainant for the said operation and further treatment.
4. To direct the Opposite Party to pay the Complainant amount of Rs.20,000/- towards the cost of this complaint.
5. And further other reliefs as the Honble Commission may deem fit and proper.
6. The Complainant craves leave of this Honble Commission to refer to the Statement of Claims duly annexed to this schedule.
Accordingly, notice was issued to the O.P. and O.P. has filed his written version. O.P. in his written version stated that O.P. had examined the complainant on 04/09/1997 in the Hinduja Hospital for swelling on his face on the right side. The Registrar of the Hospital diagnosed that the complainant has one of the Parotid Swelling and advised a Needle Biopsy to diagnose the nature of the problem. The complainant was advised to undergo diagnostic tests including the fine needle aspiration to diagnose the exact nature of the swelling. A CT Scan was also advised. However, as the complainant could not afford, CT Scan was not carried out. On 13/09/1997, a Fine Needle Biopsy was conducted and tissue was sent for Histopathology Test. As per said report, swelling was of a non-malignant type of tumour known as an Adenoma.
The complainant was asked to undergo an operation for removal of Parotid Gland (Salivary Gland in front of the ear) as the swelling was quite large and was causing cosmetic problems. In addition, there was a chance that the tumour could suddenly turn malignant. Before the operation, a Standard Consent for surgery which mentions details of the operation and all risks was willingly signed by the complainant. At the time of surgery on 25/09/1997 the entire gland measuring about 6 cms x 5.5 cms x 4.5 cms was excised and sent for pathology test. At the time of surgery, the Facial Nerve which carries impulses to the muscles of the face was found deeply embedded in the Parotid Gland and removal of gland without disturbing the continuity of the nerve was not possible as the nerve could not be separated from the main gland itself. O.P. tried to maintain continuity of the nerve to the extent possible.
There were good chances of the complainant recovering use of the facial muscles over a period of time and this was an expected and anticipated complication. The pathology report of the Parotid Gland dated 29/09/1997confimred that the tumour was benign. O.P. further explained that the Parotid Gland was swollen to a large extent and the Facial Nerve which traverses through it, was deeply embedded in it. As it could not be saved, the same had to be cut and sacrificed along with the gland. The above findings are corroborated with the record of the Hinduja Hospital. The side effects or after effects of surgery are known, expected and accepted complications in such type of surgery, attracting the maxim volenti non fit injuria. O.P. therefore requested to dismiss the complaint as it is based on inadequate facts and improper conclusions.
The complainant had filed an affidavit-cum-rejoinder to the written version of O.P. which is at page-79to146. Complainant also filed Dr.K.S. Galerias Medical Report of Mr.Anwar Ansari dated 25/06/2008. and Parotidectomy FAQ & Patient Information, Otolaryngology Houston. O.P. had filed his evidence on oath along with an affidavit of one Mr.Digvijay Bajpai. His educational qualifications, record of Hinduja Hospital, copy of Oxford Text Book of Oncology Vol. 1 Salivary Tumours, Recurrent Pleomorphic Adenoma of the Parotid Gland Report of 126 cases and a Review of the Literature by P. Perry Phillips and Kerry D. Olsen.
The complainant as well as O.P. had filed brief notes of arguments.
In the notes of arguments, complainant contended that he had filed a complaint for deficiency in service and for professional negligence while performing operation on right side gland on complainants face by the O.P. Face of the complainant got completely changed and slanted by faulty operation. O.P. had advised him the operation which was performed by the O.P. on 25/09/1997 in Hinduja Hospital. Operation took six hours. On the next date, the complainant was shocked to find that his face had completely changed and slanted due to faulty operation. It is allegation of the complainant that O.P. has not explained the risks involved in the said operation. Had the O.P. explained the risks involved in the operation, complainant would have not gone for the operation. Disability caused is a permanent disability. O.P. failed to disclose said risk involved in the operation. The complainant had spent `22,171/- for the said operation.
Medical negligence is defined as a lack of reasonable care and skill or willful negligence on the part of doctor in respect of acceptance of patient, history taking, examination, diagnosis, investigation, treatment, medical or surgical resulting in injury or damage to the patient. Damages means, physical, mental or functional injury to the patient. O.P. is responsible for the permanent damages of the complainant. Though the O.P. had stated that O.P. advised him CT Scan, the same is not carried out as the complainant could not afford it. However, complainant submits that said statement is totally false and baseless and made with an ulterior motive to escape the liabilities. Because of faulty operation, complainant was under depression and could not chew the food properly due to no strength in the teeth. There used to be continuous water discharge from his right eye. He was not able to close his right eye. As there was no recovery, O.P. referred to Dr.Tibrewala, who first advised to wait for one month and after one month, advised to undergo re-operation to set right the defects caused by the previous operation. Dr.Tibrewala had not given any guarantee to restore normalcy. Because of faulty operation by O.P., the complainant had to consult various doctors i.e. Saifee Hospital, Dr.Nadir Bharucha, Dr.Mukund Thatte, Dr.B.K. Goyal, Dr.Hemang Koppikar and Dr.Katrak and unnecessarily incurred the heavy expenses.
The complainant finally consulted Dr.K.S. Galeria of the Jaslok Hospital for the plastic surgery for the facial nerve paralysis and had to pay Rs.60,000/-. Because of faulty operation by the O.P. the right eye of the complainant got damaged permanently. The complainant is a manufacturer of readymade garments and because of this faulty operation, he could not concentrate on his business and suffered a loss of `1,77,935/-.
Hence, the complainant claimed reimbursement of the expenses incurred by him on surgery, consultation with several doctors, various tests and compensation for permanent disability Rs.9,21,379/-.
O.P. in his written brief notes of arguments stated that the complainant had come to the O.P. on 04/09/1997 at Hinduja Hospital for swelling on his face on the right side. He was diagnosed for Parotid Swelling and advised him a Needle Biopsy to diagnose the nature of the problem. The swelling was firm and hard. O.P. advised the complainant to undergo diagnostic tests including a Fine Needle Aspiration to diagnose the exact nature of the swelling. CT Scan was also advised. However, the complainant stated that he could not afford it. On 13/09/1997 a Fine Needle Biopsy was conduced by the Registrar and tissue was sent for Histopathology Test. As per the report, swelling was non-malignant type of tumour known as Adenoma. Hence, the complainant was advised to undergo an operation for removal of Parotid Gland (Salivary Gland in front of the Ear) as the swelling was quite large and was cosmetic problems. In addition, there was chance that the tumour could suddenly turn malignant. O.P. has filed Standard Texts showing that such tumours may turn malignant. The complainant was admitted on 24/09/1997. A Standard Consent for surgery which mentions details of the operation and all its risks was willingly signed by the complainant. O.P. had filed an affidavit of one Mr.Digvijay Bajpai, who confirmed that the complainant was explained the complications of surgery and informed consent was taken from the patient. In surgery, the entire gland measuring 6 cms x 5.5 cms x 4.5 cms was excised and sent for pathology testing. During the surgery, facial nerve which carries impulses to the muscles of the face was found deeply embedded in the Parotid Gland and was identified. Removal of the gland without disturbing the continuity of the nerve was not possible as the nerve could not be separated from the main gland itself. O.P. tried to maintain continuity of the nerve to the extent possible.
The post-operative recovery was uneventful and there were chances of the complainant recovering use of facial muscles over a period of time and accordingly, the patient was informed and to wait for some time to give the nerve a chance to regenerate and the muscles to regain lost function. This was an expected and anticipated complication in such type of surgery. The complainant was discharged on 30/09/1997 with facial paralysis, a known, accepted and explained complication of such surgery. The patient was advised to see a Plastic & Re-construction Surgeon, Dr.Anil Tibrewala and Eye Surgeon, Dr.V.S. Parikh. The complainant was given an appointment on 09/02/1998 by the O.P. and Dr.Tibrewala on 16/02/1998. However, the complainant did not turn up. The complainant underwent a plastic surgery for the facial nerve paralysis at Jaslok Hospital. The surgery of Parotid Gland not only relieved the complainant of disfiguring swelling on his cheek, but also saved him from dreadful diseases like Cancer which he could have got in a few years time, if the complainant had not undergone to the surgery under cancerous changes. Complainant had not filed any medical report to support the allegation of disability and loss of income. Medical Text attached with the written version of the O.P. clearly mentioned the complications in the surgery for removal of Parotid Gland. There is no deficiency or negligence in the service in performing surgery by the O.P. The case of the complainant is based on false presumptions, suppositions and lack of propositions of science by the complainant. The complications were expected, accepted, attracting the maxim volenti non fit injuria. Therefore, O.P. prayed for dismissal of complaint.
On the basis of pleadings of both the parties, we frame followings points for our consideration :-
(1)Whether O.P. was deficient and negligent in performing surgery of the complainant?(2)
If yes, what is the compensation?
Admittedly, the complainant was treated by the O.P. Before surgery, a Needle Biopsy was conducted to diagnose the nature of the disease. On 13/09/1997 a Fine Needle Biopsy was conducted and the tissue was sent for Histopathology Test and thereafter, complainant was asked to undergo an operation for removal of Parotid Gland (Salivary Gland in front of the Ear). The complainant was admitted on 24/09/1997 and the surgery was conducted on 25/09/1997. Before the surgery, consent for the surgery was taken from the complainant. Learned Counsel for the complainant vehemently pointed out that the consent of the complainant is not a informed consent. In the consent form, it is written on the certificate that I have been explained in the language I understand about the nature of disease and the nature of the procedure/operation to be performed and the benefits to be reasonably expected compared to alternative approaches and risks of the disease itself. I acknowledged that I have been explained the likelihood of major risks or complications/side effects of this procedure/operation including but not limited to infection, drug reactions, blood clots/bleeding, paralysis, loss of limb function, brain damage and loss of life. I have also been informed that no guarantee can be given for the results and there is always the possibility of unexpected complications which may necessitate procedures different from those contemplated and I hereby consent to the performance of additional procedures or operations that the doctor considers urgent and necessary. The complainant has signed the consent. From his signature, it is evident that he knows English and hence, to say that Consent was not informed consent cannot be accepted. The complainant has contended that surgery had taken 5to6 hours. However, Hospital record attached with the complaint or case papers, no where shows that operation took 5to6 hours. Complainant himself in his affidavit admitted that O.P. had advised him to go to Dr.Tibrewala, Plastic Surgeon and Dr.Bharucha, Neurologist. Not only this, but on the advice of O.P., complainant went to the Jaslok Hospital for plastic surgery. In the written version, O.P. admitted that Parotid Gland was swollen to a large extent and the Facial Nerve which traverses through it, was deeply embedded in it. As it could not be saved, the same had to be cut and sacrificed along with the gland. The above findings are corroborated from the operation notes. In support of that O.P. has relied upon extract of Oxford Text Book of Oncology Vol-1, which reads as Although plemorphic adenomas is a benign tumour, there is no doubt that occasionally a carcinoma can arise within the lesion. Cases are frequently seen where the macroscopic bosselations have insinuated themselves between the branches of the facial nerve, distorting the anatomy of the latter.
O.P. has relied upon extract of Recurrent pleomorphic adenoma of the Parotid Gland Report of 126 cases and a review of the Literature, which reads as In most patients, if the facial nerve was involved with recurrent disease, it was deliberately sacrificed, although unintentional injuries also occurred. When the facial nerve is involved with tumour, partial and occasionally total facial nerve sacrifice may be necessary. In the Parotid Gland, approximately 90% of these neoplasms present superficial to the facial nerve, with the remaining 10% presenting as deep lobe tumours or paraphryngeal space tumours.
O.P. stated that facial nerve which carries impulses to the muscles of the face was found deeply embedded in the Parotid Gland and was identified. Removal of the gland without disturbing continuity of the nerve was not possible as nerve could not be separated from the main gland itself. This contention of the O.P. is supported by the Text Book extracts.
The complainant has produced an opinion of Dr.Hemang Koppikar dated 28/10/1997 which is at page-112, Report of Jaslok Hospital, Department of Clinical Neurophysiology at page-130 and opinion of Dr.K.S. Galeria, which is at page-154 which attributes no negligence on the part of O.P. Learned Counsel for the complainant had vehemently argued that O.P. had not done CT Scan of the complainant. A.R. of the O.P. had stated that CT Scan was not done because complainant was not able to afford it. There was no vested interest of the O.P. in directing CT Scan. Therefore, O.P. did a Needle Biopsy and the tissue was sent for Histopathology Test and Histopathology Test report is on record. Hence, O.P. cannot be blamed for not doing the CT Scan as already explained and the complainant had given consent for performing surgery. It is not the case that without his consent surgery is performed or the consent is not informed one.
Thus, the O.P. had performed required pre-operation tests and before surgery, the complainant has given his consent. The entire gland measuring about 6 cms x 5.5 cms x 4.5 cms was excised. It is admitted by the O.P. that during surgery, facial nerve which carries impulses to the muscles of the face was found deeply embedded in the Parotid Gland and removal of gland without disturbing the continuity of the nerve was not possible as the nerve could not be separated from the main gland and he tried to maintain the continuity of the nerve to the extent possible. Thus, it is clear that O.P./doctor followed an established medical procedure in the surgery and treatment of the complainant. In support of his submissions he had produced an extract from Oxford Text Book of Oncology Vol. 1 Salivary Tumours and extract from Recurrent Pleomorphic Adenoma of the Parotid Gland Report of 126 cases. What the practitioner doctor is supposed to do is to bring to task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. A person is not liable for any negligence because some one else of greater skill and knowledge would have prescribed different treatment or operated in different way.
Honble Apex Court has observed that a medical practitioner is not liable to be held negligent simply because things went wrong from mischance or through error of judgement in choosing one reasonable course of treatment in preferences to another. Proving the medical negligence is responsibility of the complainant and in the instant case, complainant failed to prove his case. Therefore, we answer point No.1 in negative.
We hold accordingly and we pass the following order :-
-: ORDER :-
1. The complaint stands dismissed.
2. No order as to costs.
3.
Copies of the order be furnished to the parties.
(Dhanraj Khamatkar) (S.R. Khanzode) Member Presiding Judicial Member dd.