National Consumer Disputes Redressal
Mrinmoy Dutta vs Dr. Anupam Golash Pvt. Ltd. & Anr. on 11 May, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 380 OF 2013 (Against the Order dated 12/03/2013 in Complaint No. 5/2006 of the State Commission West Bengal) 1. MRINMOY DUTTA S/O. SHRI MURARI MOHAN DUTTA,
R/O. AT 1/4,
DESHPRAN SASMAL ROAD HOWRAH - 711 101 WEST BENGAL ...........Appellant(s) Versus 1. DR. ANUPAM GOLASH PVT. LTD. & ANR. S/O. DR. BALKRISHNA GOLASH, FLAT NO. 15 BELVEDERE ESTATES, 8/8, ALIPORE ROAD, KOLKATA-700027 WEST BENGAL 2. MEDLINE NURSING HOME 48/30, PURANA CHANDRA MITRA LANE, SWISS PARK, KOLKATA-700033 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE D.K. JAIN, PRESIDENT HON'BLE MRS. M. SHREESHA, MEMBER
For the Appellant : Mr. Rahul Sharma, Amicus Curiae with
Appellant in person For the Respondent : Mr. Partha Sil, Advocate and
Mr. Tavish B. Prasad, Advocate
Dated : 11 May 2016 ORDER
Challenge in this Appeal under Section 19 of the Consumer Protection Act, 1986 (for short "the Act"), is to the order, dated 12.03.2013, passed by the West Bengal Consumer Disputes Redressal Commission (for short "the State Commission") in Case No.SC/5/O/2006. By the impugned order, the State Commission has dismissed the Complaint, observing that the Petitioner/Complainant had failed to establish that there was any deficiency in service or medical negligence on the part of the Respondents.
2. The brief facts, as set out in the Complaint, are that in the year 1986, while playing cricket, the Complainant met with an accident and hurt his nose, resulting in breathing complications. Subsequently, a septoplasty operation was performed removing most of the septum along with the tip support in the columella region. The Complainant felt sudden structural weakness in his nose which was solved three years later, by a plastic surgeon of N.R.S. Medical College, by grafting with the iliac crest bone. The Complainant averred that he was successful in his business and was also acting in T.V. serials and that in this profession the structure of his facial features is extremely important. During the year 2005, the Complainant again started feeling some functional disorder in his nose as the graft got dissolved giving rise to weakness in the support at the tip. The Complainant pleaded that on 27.03.2005 he had consulted the first Opposite Party, (hereinafter referred to as "the treating Doctor"), who, on physical examination and analysing the history of the Complainant, gave him an option of fixation of support at the tip by way of an L-shaped graft.
3. The Complainant averred that on 07.08.2005, the treating Doctor had advised him to undergo rhinoplasty costing Rs. 22,000/- and subsequently, on 15.08.2005, the operation was performed on his nose by the treating Doctor at the Nursing Home of the second Respondent. The Complainant pleaded that after the operation, he found a much longer columella scar extending above the original tip position. There was further dumping of that portion of the skin below the nose, which was done to hide the scar and this resulted in aggravating his discomfort, on account of refunctioning of the Ala muscles. The Complainant brought to the notice of the Doctor that the soft tissue above the dorsum on the end (tip) had bent down in a vertical direction through the columella. On 28.08.2005, the plaster was removed and a red infected patch was found in the nose above the graft and on top of the dorsum. He was asked to come again after two weeks and certain medicines were prescribed. The Complainant pleaded that the treating Doctor did not take proper care, though pus was oozing out of the nose. On 03.09.2005, the Complainant visited the treating Doctor, who advised proper drainage and complete washout under anaesthesia. On 27.09.2005, the Complainant once again visited the clinic of the treating Doctor at CMRI with continuous infection and pus accumulation.
4. The Complainant pleaded that the treating Doctor operated his nose with vertical incision through columella and tip, on account of which a scar was caused extending from the base to the tip on the top of the nose and the Doctor had tried to hide the scar and dispositioned the tip by bending it down. It is pleaded that only because of the negligence of the treating Doctor that the Complainant found it difficult to breathe as the Ala muscles of the nose were made dysfunctional. Due to non-clearance of the right passage properly, the Complainant was facing problems of suffocation during his sleep. It is also averred that the treating Doctor did not cut/remove the stitches even after a lapse of six months from the date of operation which caused tremendous pain in the nose. The Complainant stated that he had suffered a lot on account of this scar which changed his looks affecting the beauty of his face, more so as he was a professional actor in T.V. serials and cinema. Hence, the Complainant approached the State Commission on 02.02.2006 seeking direction to the Opposite Parties to pay an amount of Rs.90 Lac under the following heads:
S C H E D U L E
Treatment required for further 15,00,000/-
operation abroad
Scar Revision 1,50,000/-
Cosmetic to conceal the scar 10,80,000/-
(Rs.3000/- x 12 months x 30 days)
Mental agony 10,00,000/-
Loss of earning and compensation 52,70,000/-
for 30 years Rs.90,00,000/-_
5. The treating Doctor filed his written version stating that the Complainant had visited him, for the first time, on 17.03.2005 and informed him that he had undergone septoplasty about 20 years ago and Rhinoplasty with bonegraft about 12 years ago and complained of the following problems:
Internal Valve problem
Tip support lacking
Dorsal deformity
Short stem graft
6. The treating Doctor suggested that the Complainant should undergo a rhinoplasty surgery after taking admission at CMRI. The Complainant handed over a notesheet to the treating Doctor indicating what he wanted from the operation and how the operation should be conducted. As it was not possible for any Doctor to operate as per the command of the patient, he refused to conduct the surgery on the Complainant. Again on 07.08.2005, the Complainant came to the treating Doctor for consultation when it was explained to him that the nasal deformity which he had perceived, did not exist; that the Ala muscles had no role to play in the normal day to day breathing; columella was not an important path of blood supply to the nose and also that his perception of the chest pain caused by the existing nasal structure in not allowing adequate exchange of gases was only a figment of his imagination.
7. The treating Doctor pleaded that he had refused to operate on the Complainant on two previous occasions as the Complainant had shown nagging behaviour and only due to the continuous insistence from the Complainant's side, he had finally agreed to conduct the surgery only after explaining to the Complainant clearly the prognosis and the expected risks. Having understood and agreed that there were risks involved, the Complainant signed the informed consent form and only then the treating Doctor had performed the operation. The scar, which existed on the columella was due to the previous operation. It is averred that the Complainant had requested to conduct the operation at a low cost and hence the Doctor performed the operation at Medline Nursing Home at Tollygunge. It was explained to the Complainant that the scar had not become bigger but only seemed stretched due to the elevation of the columella. The Complainant was discharged on 17.08.2005 with necessary advice. On 20.08.2005, the Complainant visited the treating Doctor for removal of the stitches and on the same day, the plaster was removed and there was no infection cited at the operation site. It is pleaded that the Complainant was obsessive with the shape of his nose and, therefore, he had started handling and fiddling with his nose too much. He was advised by the Doctor to keep the handling down to the minimum to avoid any kind of heamatoma formation or infection.
8. The treating Doctor averred that on 01.09.2005, the Complainant had contacted him over the phone and complained of swelling and redness of his nose. He was advised immediately to have antibiotics and to visit him for a check-up, which the Complainant had failed to follow. The Complainant had visited him only on 03.09.2005 and on examination, it was found that the patient had an infected collection of pus on the dorsum of the nose and immediately the treating Doctor attended to him and aspirated the pus. He was also advised to have proper drainage and washout under general anaesthetia but the Complainant had refused to comply and decided to continue with the antibiotics. Thereafter, on 27.09.2005, the Complainant came to his clinic at CMRI with infection and pus accumulation. He was advised to get admitted for surgical drainage of pus. The Complainant had refused to get admitted due to financial constraints and the treating Doctor arranged for drainage of the infected pus in the minor O.T. at CMRI on an outpatient basis. He was given fresh antibiotics and advised to come again after two days for review. The Complainant did not turn up for any follow up treatment. Treating Doctor stated that he had taken utmost care and precaution in treating the patient and therefore, there was no negligence on his part while performing his professional duties and that he had observed standard medical procedures and practices and sought for dismissal of the Complaint with costs.
9. Initially an Appeal No. 290 of 2007, was preferred by the Complainant, before this Commission seeking amendment of the Complaint to include a few paras relating to his medical treatment, which this Commission had allowed, by its order dated 22.1.2010 and directed the State Commission to dispose of the Complaint afresh. The State Commission vide its order dated 12.3.2013 dismissed the Complaint, observing as follows:
"From the evidence as discussed above it is palpably clear that after undergoing Rhinoplasty operation at OP No. 2 the complainant had undergone treatment including surgery at different medical units and ultimately went to New Hope Centre, Chennai where it was found that there was sebacious cyst and the Complainant had undergone (1) reduction Rhinoplasty and (20 sebacious cyst excision. It is contended by the learned counsel for the OP No. 1 that sebacious cyst was the real cause for his subsequent nasal discomfort, for which the OP no. 1 cannot be held negligent. In the petition of complaint it has been averred that 20 years ago he suffered injury while playing cricket and three years later the problem was solved by a plastic surgeon of NRS Medical College by grafting with the iliac crest bone from the waist.
On 16.7.07 the complainant went to Max Health Care where it was noted that there was "SMR, tip support lost, twice rhinoplasty". From the discharge certificate issued by Repose Clinic and Research Centre Pvt. Ltd. dated 11/3/08 it appears that there was excision of offending nasal cartilage.
It has been contended by the learned counsel for the complainant that when the complainant had undergone Rhinoplasty at OP No. 2 there was infection in the nose which caused subsequent trouble. But from the treatment sheet issued by the OP No. 1 and OP No. 2 on different dates it appears that there was no endorsement about any infection in the nose. It is, therefore, clear that when the complainant remained admitted in OP No. 2 under the treatment of OP No. 1 there was no such infection and there was no complaint from the side of the complainant and, as such, he was discharged from the Nursing Home. The complainant has filed medical literature in support of his contention. We are of considered view that those medical literature would not come in support of his contention in the facts and circumstances of the instant case.
Having heard both sides and on perusal of the evidence on record, we are of the considered view that the complainant has failed to establish that there was any deficiency in service or negligence on the part of the OPs in conducting Rhinoplasty operation. The complainant is, therefore, not entitled to get any relief in this case.
In the result, the complaint fails and the same stands dismissed. We make no order as to costs".
10. Aggrieved by this, the Complainant has preferred this Appeal.
11. It is the Complainant's case that the L-shaped grafting was not done, soluble stitches were not used and that cartilages were implanted obstructing respiration. Learned Amicus Curiae representing the Complainant drew our attention to the prescription of the Doctor Bidhan Choudhuri, in which it is stated that "the Complainant had undergone surgery in August 2005 for grafting from the rib cartilage but that it resulted in more respiratory distress (mainly obstruction at the nose) along with the stiffness at the nose." Learned Amicus Curie submitted that it is an admitted fact that rhinoplasty was done on 15.08.2005, the discharge summary of which is silent about the procedure, nature and kind of rhinoplasty. The Complainant submitted that he had asked the treating Doctor several times about the details of the operation which was never given to him and he was informed that the operation notes were lost. Learned Amicus Curie submitted that Dr. S. A. Faizal in his prescription dated 30.10.2008, had stated, that the patient had breathing difficulty and right nasal tip needs exploration of the nose to restore the valvular function and he was advised for corrective surgery.
12. Learned Counsel for the treating Doctor admitted that the operation notes were not available and that procedure notes were not written in the said discharge summary or in the prescription. The treating Doctor stated that the Complainant had never come to him for fixation of support at the tip of his nose by way of an L-shaped graft.
13. Counsel for the treating Doctor further contended that the Complainant had undergone five surgeries subsequent to 15.08.2005 but the subsequent surgeries did not prove that there was any negligence or deficiency in conducting the operation on 15.08.2005.
14. The Counsel for the treating Doctor argued that the Complainant suffered from Body Dysmorphophobia, i.e. Body image disorder which is a psychiatric condition in which the patient is not happy with his looks. He drew our attention to the literature on 'problems faced by the Patient after Plastic surgery', mentioned in II Edition Volume I by James Barrett Brown, M.D. and Frank McDowell, M.D., in which it is stated that most patients who seek rhinoplasty are in the age of 20s and the patient can become very unhappy if the results of the surgery are criticized by family or close friends in the immediate postoperative period. It is not rare to see a patient soon after the surgery who is ecstatic on one visit and deeply depressed on the next. If the surgeon decides to operate on a perfectionist patient, he or she must accept a certain risk that the patient may not be happy or may arrive at some measure of acceptance only after many weeks and a good deal of annoyance and irritation to the surgeon and his or her staff.
15. It is the treating Doctor's case that between 29.09.2005 to 29.12.2014, the patient was treated by seven Doctors in 13 Medical Institutions and underwent five operations, which did not satisfy the patient. The counsel argued that the doctor had conducted the rhinoplasty surgery upon the patient as per standards of normal practice and that there was no negligence on his behalf.
16. It is the Complainant's case that despite several surgeries, which he had undertaken after the rhinoplasty, only because of the negligence in the operation conducted on 15.08.2005, that he was still suffering from breathing problems with a scar on the nose affecting his facial features.
17. What constitutes medical negligence is well settled through a catena of decisions of the Hon'ble Supreme Court, including in Jacob Mathew Vs. State of Punjab & Anr. (2005) 6 SCC 1, a three Judge Bench decision; Indian Medical Association Vs. V.P. Shantha and Ors. (1995) 6 SCC 651. Noted from these judgments, the broad principles to determine what constitutes medical negligence, inter alia, are: (i) Whether the doctor in question possessed the medical skills expected of an ordinary skilled practitioner in the field at that point of time; and (ii) Whether the doctor adopted the practice (of clinical observation diagnosis - including diagnostic tests and treatment) in the case that is accepted as proper by a responsible body of professional practitioners in the field. In this connection, in Jacob Mathew (supra) the three Judge Bench, elaborating on the degree of skill and care required of a medical practitioner quoted Halsbury's Laws of England (4th Edn., Vol.30, para35), as follows:
"35. 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, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operation in a different way; ..."
18. In Derr v Bonney, 231 p 2d 637, Wash, 1951, the Court's definition of negligent treatment is an excellent statement of the general definition of a physician's legal responsibility in treatment.
Before a physician or surgeon can be liable for malpractice, he must have done something in the treatment of his patient which the recognized standard of medical practice in his community forbids in such cases or he must have neglected to do something required by these standards.
In order to obtain a judgment against a physician or surgeon, the standard of medical practice in the community must be shown and further, that the doctor failed to follow the method prescribed by that standard.
It is not required that physicians and surgeons guarantee results, nor that the result be what is desired.
The testimony of other physicians that they would have followed a different course of treatment than that followed by the defendant or a disagreement of doctors of equal skill and learning as to what the treatment should have been, does not establish negligence.
19. Hence, the brief point that falls here for consideration is whether the treating doctor had treated the Appellant with a degree of skill construed to be reasonable and competent as per the standards of normal medical parlance.
20. It is an admitted fact that the patient in 1986, while playing cricket met with an accident and hurt his nose, resulting in breathing problems and other complications. Thereafter, septoplasty operation was performed. The discharge summary of this operation is not available on record. However, in the patient's history in all the subsequent procedures undertaken, it is noted that the patient had a history of septoplasty operation done 20 years ago. Thereafter, the Complainant underwent plastic surgery at NRS Medical & College Hospital, where grafting was done using the iliac crest bone from the waist.
21. For better understanding of the case, a brief chronological order of the prescriptions detailing the treatment rendered to the patient is given as under:
(Page: 76)
In this prescription dated 7.3.2005, by the treating doctor (Dr. Anupam Golash), the medical history of the patient showed that the patient had Septoplasty done 20 years ago, Rhinoplasty 17 years ago and also bone grafting.
It is stated in the prescription that there is an internal valve problem;the Tip support is lacking; there isdorsal deformity and short bone grafted. For better understanding of the prescription, the same has been scanned on page 16 of the order.
(Page-73)
In this prescription dated 7.4.2005, Dr. Rabindra Nath Manna, the Radiologist, explained the Nasal Bones and sent the film for review.
(Page-78)
In this prescription dated 8.4.2005, the treating doctor, advised for corsal cartilage graft and advised the patient to be admitted in his care.
(Page-79)
In this prescription dated 7.8.2005, the treating doctor, observed DNS with breathing problem and nasal valve problems and advised the patient to be admitted in his care.
(Page-85)
In this discharge certificate dated 17.8.2005, of Medline Nursing Home, medicines Tab clavum LB 625 mg., Tab Magadil, Tab Pan 40 mg. and Otrivin Nasal Drops were prescribed by the treating doctor.The line of treatment rendered by the doctor is not stated.
(Page-80)
In this prescription dated 20.8.2005, by the treating doctor, it is noted that stitches were removed and Neusperin Ointment was prescribed.Patient was advised to come for review after one week.
(Page-81)
In this prescription dated 28.8.2005, by the treating doctor, it is stated that Plaster was removed and he had prescribed Neusperin-H ointment for application.The patient was advised to come for review after two weeks.
(Page-86)
In this OPD card dated 8.9.2006, by NRS Medical College, Kolkata, it is noted that the patient had pain in the root of the nose and had medical history of Septoplasty.The patient was prescribed Furiderm Cream and Tab TRD and was referred for opinion.The patient was advised Revision Septorninopathy for continuous paracatheria (sic) and breathing difficulty.
(Page-67)
In this prescription dated 30.12. 2005, by Dr. Sheila Rohtagi, it is stated that Rhinoplasty was done in August 2005 and that there was a bad vertical scar extending from columella base to the tip, this apparently has given a bifid nose with difficulty in breathing and a deviated septum.
The patient was advised to wait for one year before undertaking any other surgery.The doctor further advised that the scar should be removed, first before final correction.It isrecommended to the patient, to refer to Dr. Sabyasachi Kar to aid in tip support, by way of any mechanical means.
(Page-68)
In this prescription dated 21.2.2006 by Dr. Manoj Khanna, Cosmetic Surgeon, Kolkata, it is noted that the patient had difficulty in breathing with tip dropping and had a deviated graft. The patient visited again on 11.8.2006 and it is recorded that there is difficulty in breathing with cosmetic problems.He was referred to Dr. Santanu Banerjee, Kolkata.
(Page-69)
In this prescription dated 27.2.2006, by Subarnabanik Samaj Polyclinic, Kolkata, it is stated that the patient had medical history of Nasal Septoplasty and Rhinoplasty and waslacking tip support.
(Page-99)
In this prescription dated 6.9.2006 & 11.9.2006 by Dr. P. Majumdar & Dr. R. Sinha (ENT Specialist) of National Medical College, Kolkata, it is stated that the patient had history of Septoplasty and was advised Tab Brief (500) and Fusidam ointment.
(Page-88)
In this OPD card dated 8.9.2006, by Dr. D. Barman, NRS Medical College, Kolkata, it is noted that the patient had pain and tension along the operative site.It was further stated that Revision Septorhinoplasty may be done.
(Page-110)
In this OPD Card dated 7.9.2006, by R.G. Kar Medical College, Kolkata, it is stated that the patient had Septoplasty, Rhinoplasty about 6 years ago.Pain in the left nasal vestibule.The patient was prescribed Tab Roxid (150 mg.) and Tab Ultracet.It is noted that there is no obvious ulceration over the left vestibule cartilage graft.Review after 10 days.
(Page-72)
In this Polysomnography report dated 18.11.2006, it is observed that there were 4 hypopneas and one obstructive apnoea, and the apnoea/hypopnoea index was 1. There were no significant episodes of desaturation.Minimum saturation was 90%.
(Page-93)
In this OPD Card dated 27.11.2006,by Dr. Aloke Gopal Ghoshal of NRS Medical College, it is noted that there is upper airway resistance syndrome and patient was prescribed Tab rophylhine (400), Tab Allegra (120) and was also advised to sleep in a lateral position.
(Page-108)
In this OPD Card dated 28.11.2006,by Dr. G. Guha, it isnoted that the patient wasan old case of Septoplasty.There wasa small skin tag in the upper part of left nasal vestibule and the removal of that skin tag will not improve the respiratory difficulty and the same had been explained to the patient.
(Page-105)
In this OPD Card dated 5.12.2006,by SSKM Hospital, Kolkata, it is stated that the patient had complaint of drooping of nose and nasal obstruction on theleft side.
It was notedthat nasal septum middle line was deviated .Part deviated on left side, bony part high up.The patient wanted correction ofdrooping of nose and of the deviation.It is stated that the procedure for the surgery had been explained to the patient.
(Page-126)
In this prescription dated 16.7.2007 by Dr. P.S. Sahane, it is notedthat the tip support was lost, the patient had undergone Rhinoplasty twice, Rib cartilage was unsuccessful.It was also noted that the patient had breathing difficulties with asthmatic problem.
The patient was advised - nasal valve repair, lifting ofthe tip and fixing ofthe graft.
(Page-89)
In this OPD Card dated 2.8.2007, by NRS Medical College, it is stated that the patient had undergone Rhinoplasty twice and that ANS+PNS is clear.There is drooping of the tip of the nose and nasal obstruction.It was recommended to the patient to see a Plastic Surgeon.
(Page-91)
In this OPD Card dated 21.8.2007, by NRS Medical College, it is stated that the patient had nasal deformity and nasal obstruction.The patient was advised for X-ray PNS-on view, X-ray chest-PA view, ECG, examination of blood test for TC, BT, CT, Sugar (F) etc.
(Page-95)
In this discharge certificate dated 14.9.2007, by NRS Medical College, Kolkata, the patient was advised to revision rhinoplasty with tip plant.It is noted that flap elevation, collumella retention was done and stitches wereremoved before discharge.
It is notedin the said prescription that external rhinoplasty was done and LA right sided remnant of rib cartilage (implanted in previous operation) wasremoved.
(Page-103)
In this prescription dated 12.1.2008, by SSKM Hospital, Kolkata, it isstated that the patient had undergone plastic surgery twice.It was recommended to the patient that he see a VS for opinion.
(Page-130)
In this prescription dated 21.2.2008, by Dr. Mrimony Nandi, it is noted that the patient had breathing difficulty with stiffness in nose and had undergone rhinoplasty 3 years ago.
It was advised to the patient to see and discuss with the same Surgeon who had donethe Septoplasty.
(Page-131)
In this prescription dated 5.3.2008, by Dr. Mrimony Nandi, the patient was advised to undergo removal of cartilage graft causing stiffness in the nose.
(Page-64)
In this prescription dated 8.3.2008 by Dy. Bidhan Choudhuri, it isnoted that the patient had undergone surgery in August 2005 with grafting from rib cartilage but it resulted in more respiratory distress such as obstruction andstiffness in the nose. The patient again underwent surgery by Dr. M. Nandy for removal of the grafts from the nasal area andgot good relief after this surgery, with removal of nasal obstruction and stiffness in the nose.The patient was advised to consult Dr. M. Nandy and ENT Specialist.
(Page-137)
In this discharge certificate dated 11.3.2008, by Repose Clinic & Research Centre, Kolkata, it isnoted that there should be excision of Nasal cartilage which has been grafted previously.
(Page-65)
In this prescription dated 30.9.2008, by Dr. Anirudh Bose, it is stated that the patient had history of breathing problems, Septoplasty done 20 years back resulting in septal collapse.It is notedthat the patient had infection and was advised removal of cartilage graft, if infection persisted.The doctor also advised the patient not to have secondary rhinoplasty before 9 months and to go back to the treating doctor for further treatment.
(Page-62)
In this discharge certificate dated 4.11.2008, by Labbaik Medical Centre Pvt. Ltd.,it is noted that the patient complained of airway obstruction.It is stated in the discharge certificate that costal cartilage graft had been shifted to the left.Coastal cartilage was relocated to the central plane.
(Page-63)
In this discharge summary dated nil, by Dr. S.A. Faizal of Labbaik Medical Centre Pvt. Ltd., Kolkata, it is stated in the discharge summary that there was too much of cartilage in the plane and very tight sutures creating tension.It isstated that the doctor proceeded to debaulk the spreader graft and shift the costal cartilage graft to the Midline.The "L" alar cartilage was also replaced with its normal anatomical position.
(Page-58)
In this prescription dated 16.2.2009, by Dr. Atri Bandyopadhyay, it is stated that there is excessive costal cartilage, over Ala and tip of nose, which may lead to sleep disturbance and Asthma.
Advised debaulkingof costal cartilage with graft placed laterally and removal of excessive tension created by nylon stitches.Case to be jointly performed with a consultant Plastic Surgeon.
(Page-60)
In this discharge certificate dated 20.2.2009, issued by Hindustan Health Point,it is noted that debulking of excess costal cartilage graft placed laterally was doneremoving nylon stitches under LA.
(Page-109)
In this OPD card dated 7.8.2009,issued by Medical College, Kolkata, it is stated that the patient had past history of nose surgery and was referred to Prof. S. Gupta, Plastic Surgeon.
(Page-106)
In this prescription dated 25.8.2009, issued by SSKM Hospital, Kolkata, it is stated that the costal cartilage graft was placed in the nasal septum in 2005.It was also noted that the patient complained of pain especially during sleep.It was recommended to the patient to see anENT Specialist.
(Page-125)
In this prescription dated 28.6.2010, issued by Good Earth Medical Care Centre, it was advised to the patient to undergo removal of lateral cartilage both sides. Foreign bodies were left in the lateral walls near the nasal bone.Scar marks in columella both longitudinal and vertical present indicting previous operations.
(Page-122)
In this prescription dated 10.7.2010,issued by Dr. Shakaeb Yaseer Khan, it was observedthat cartilage was causing breathlessness, sleep disturbance and asthma.
(Page-123)
In this prescription dated nil, issued by Dr. V.S. Rathore, the doctor planned for removal of cartilage graft.
(Page-124)
In this discharge certificate dated 21.7.2010,issued by Royal Nursing Home & Health Care Ltd., it is noted that open Rhinoplasty with removal of dorso tab and collumella graftswith silicone implant for dorsum and collumella ("L" shaped) was done.
(Page-118-119)
In this discharge certificate dated 2.12.2011, issued by New Hope Medical Centre, reads as follows:
Septal cartilage defection from columella to wounds Right side abutting the Right mucoperi chondrial fixation (Broken)
Costal cartilage abutting from the roof of the left vestibule causing tension.
Deformed anatomy of vestibule due to costal cartilage on both sides.
A 3x3 cm sebaceous cyst is seen in back.
Flying bird incision was used.
(Page-100)
In this prescription dated 15.3.2012 issued by National College, it is observed that the patient had impotency, sleep disorder and pain in the nose.Patient was referred to Endocrinology OPD.
(Page-134)
In this prescription dated nil,issued by Dr. Suparna Ghosh, it is noted that the patient had hard and lifted tip with scar over durum.Cartilage was loose and flowing over tip with no support.
It was advised to the patient to undergo excision of "L" side cartilage and to also undergo rhinoplasty again with nasal endoscopy.
(Page-135)
In this prescription dated nil, issued by Dr. Suparna Ghosh, it is stated that cartilage which has been inserted laterally is also causing some airway obstruction.Advised forexcisionof "L" lateral cartilage which had been inserted.
(Page-136)
In this prescription dated nil, issued by Safdarjung Hospital, it is noted that the patient was advised to meet an ENT and to undergo nose endoscopy.
22. The main allegation of the Complainant is with respect to the Rhinoplasty done by the treating Doctor, whose prescription, is as under:
23. The aforementioned prescription shows that the patient had a history of septoplasty done 20 years ago; rhinoplasty done 17 years ago and had complained of the following problems:
Internal Valve problem
Tip support lacking
Dorsal deformity
Short stem graft
24. It is the Complainant's grievance that the surgery conducted by the first treating Doctor caused the following type of structural and functional damages to his nose:
Structural/Cosmetic
Functional
1.
Bad vertical incision on collumbela
1.
More than 1 cm of Nasal bridge (dorcum) broken at tip
2.
Distortion in shape and alignment of nose
2.
Rib cartilage grafted in both sides respiratory tract of nose.
3.
Change in inborn identity of face
3.
Tight hidden multiple prolene sutures causing tremendous pain and tension in nose and head.
4.
Deep scar on nose
4.
Suffering from breathlessness, Asthma and suffocation etc.
5.
Suffering from sleep & neurological disorder.
6.
Recurrent infection in nose at hidden sutured areas.
7.
Had to administer diluted chemotherapy injections to reduce fibrosis and tissue formation in nose airways due to presence of ribs grafts.
25. A brief perusal of the record shows that the rhinoplasty was conducted on 15.08.2005; the complainant was discharged from the second Respondent's nursing home on 17.8.2005 and stitches were removed on 20.8.2005. The discharge summary dated 17.8.2005 assumes importance in this case and reads as under:
"Discharge certificate of Medline Nursing Home
Patient's Name MRINMOY DUTTA
Age________________ Sex___________
Address______________________________
Date of Admission 14.8.05
Date of Discharge 17.8.05
Diagnosis____________________
Operation Rhinoplasty Done on 15.8.05
Doctor's Name ANUPAM GHOSH
Advice on Discharge
Tab Clavum LB 625 mg. twice daily x 4 days
TS Majodol - 1 tb. SS for pain
TS Pan 40 mg OE x 4 days
Cap. Becasule 2 -
Citra eye drops - B-th thrice daily
Renichol eye ointment - once at both time
Otrivin nosal drops - thrice daily- both nosils
Rev. Saturday CMRI specific for RO/stitches
(not properly legible)
Date: 17.8.05 Signature /Sd/-
26. The afore-said discharge summary nor the prescription mentions anything with respect to the operation done or if the L-shaped Graft was performed or not. It is the main contention of the treating Doctor that the patient wanted surgery to be performed in a certain manner and it was only due to his continuous insistence that he had agreed to conduct the surgery only after intimating him all the risks involved. The treating Doctor further submitted that the Appellant was properly counselled before the operation and that informed consent was taken.
27. The medical literature of Plastic Surgery of the Nose by James barrett Brown, M.D., Professor of Clinical Surgery and Frank McDowell, M.D., Assistant Professor of Washington University School of Medicine, filed by the Respondents, read as follows:
......For adequate restoration of support and build-up, a cartilage transplant should contain two components, a dorsal segment and a septal segment. It is much better if these two segments are contained in one solid transplant, carving it somewhat in the shape of an L. Such a transplant can be readily carved from the angular portion of the sixth or seventh costal cartilage.
......the dorsal section of the transplant is carved from the long or sternal portion of the cartilage, and the septal section is made from the short or rib end.
......at times, various workers have also used separate dorsal and columellar struts, either as two single pieces or hinged together by perichondrium or periosteum, or sutured together in some manner. All of these arrangements are quite unstable and will not work out routinely as successfully as the single L-shaped transplant."
28. The Medical literature shows that L shaped grafting is the most common and successful procedure adopted in such a case.
29. It is a well laid down law that Medical records are relied upon in a situation where medical negligence is alleged by the patient or the relatives. Medical records include a variety of documentation of patient's history, clinical findings, diagnostic test results, preoperative care, operation notes, post-operative care, and daily notes of a patient's progress and medications. The discharge summary is a crucial piece of evidence regarding the inpatient treatment. The discharge summary mirrors the case notes of the patient records with a brief summary, relevant investigations, and operative procedures, which was not done in the instant case.
30. Having regard to the fact that there are no operation notes available and the discharge summary is bald and the admitted subsequent surgeries which the Appellant had to undergo, we are of the considered opinion that the treating Doctor did not discharge his onus as laid down by the Apex court in Smt. Savita Garg v/s The Director, National Heart Institue, 2004 8 SCC 56. The medical literature filed before us clearly stipulates that the correction surgeries in such a case is best done by L-shaped grafting, which procedure, is not indicated in the discharge summary issued by the treating doctor.
31. It is pertinent to note that in his written version the treating Doctor admitted that he had agreed to perform the surgery without leaving any scars but the prescription of Doctor Mrs. Sheila Rohatgi, dated 30.12.2005, clearly shows that 'there was a vertical scar extending from columella base to the tip'. The Complainant submitted that he had suffered from breathing problems and sleeping disorders, substantiated in the prescription of Doctor Suparna Ghosh, which states that there is an airway obstruction and the excision of lateral cartilage and that the reforming of nasal tip with 'L' Graft is essential. Even in the Prescription dated 16.2.2009, Dr. Atri Bhandopadhyaya noted sleep disturbances and excessive costal cartilage and advised debaulking and removal of excessive costal cartilage and of tension created by nylon stitches.
32. The problems continued and it is an admitted fact that the Complainant had undergone the following surgeries subsequent to the rhinoplasty operation:-
(a) 1st Surgery- .04.09.2007 conducted at NRS Medical College and Hospital
Diagonis:- Deviated O/C framework of Revision Rhinoplasty.
Revision Rhinoplasty- Tip implant done under L.A. in ENT OT.
Marginal incision
Flap Elevated
I AC trimmed
Columella Retraction
Incision Closed
Stitches (put around-now removed) before dressing
External Rhinoplasty done under LA. Rt Sided remanant of rib cartilage (implanted in previous opn) rem oved columellar support pinna cartilage.
(b) 2nd Surgery - 08.03.2008- Rep9ose Clinic & Research Centre
"Excision of offending nasal cartilage which was implanted previously".
(c) 3rd Surgery-04.11.2008 - Labbanik Medical Center under Dr. S.A. Faizal
Procedure - Open Rhinoplasty, debulking of speader grafts done, Costal Cartgilage relocated in the central plane.
(d) 4th Surgery - 21.07.2010 - Royd Nursing Home - under
Dr. S. Y. Khan & Dr. V. S. Rathore.
Operation/Treatment-Open Rhinoplasty - Removal of dorso-lab & Columella graft and silicon implant for dorsum & Columella (L-shape)
(e) 5th Surgery-01.12.2011 to 02.12.2011 New Hope Medical Centre, Chennai.
Patient underwent reduction rhinoplasty wherein the costal cartilages were shaved and most of removed on both sides. Anterior part of the septum excised and brought to Columella. Nasal packing done. Sebaceous cyst was excised from back and suturing done."
33 The surgeries dated 4.9.2007, 8.3.2008, 4.11.2008, 21.7.2010 and 1.12.2011, evidence that the Complainant had undergone open rhinoplasty & reduction rhinoplasty subsequent to the Rhinoplasty in which the treating Doctor, had not done the 'L' shaped grafting as per standards of medical parlance, on account of which the Complainant had suffered structural and cosmetic complications namely deep scar and alignment of nose, functional complications like breathing problems, sleeping disorder, causing pain, tension and mental agony. For these reasons, we find the treating Doctor negligent in the manner and the line of treatment rendered to the patient, for which the Complainant deserves to be compensated.
34. The Complainant had claimed an amount of Rs. 90,00,000/- under
the following heads.
Treatment required for further operation abroad 15,00,000/-
Scar Revision 1,50,000/-
Cosmetic to conceal the scar
(Rs. 3000/- x 12 months x 30 days)10,80,000/-
Mental agony 10,00,000/-
Loss of earning and compensation for 30 years 52,70,000/
Rs- 9000000
35. However, there is no material on record to evidence that the Complainant requires any specific kind of treatment to be done abroad; the type of treatment required; the cost of such a treatment, if any, and if such a treatment is imperative and essential in improving his condition today. With respect to loss of earnings for 30 years, the Complainant had not substantiated by way of any documentary evidence as to how the condition of his nose had affected his professional career in Television Serials; the number of television serials he had acted in; the approximate remuneration he was paid for each episode; if he had been dropped from any episode on account of the scar etc. Having regard to his age which was around 40 years when the Rhinoplasty was done and his history of Septoplasty, the loss of any roles in future episodes/serials may be a matter of speculation and it cannot be construed that the condition of his nose was the sole cause for his loss of earnings, if any, in his professional career. With respect to business loss, the Complainant has not established by filing any material on record, the line of business he was involved in and if the scar and his condition had affected the nature and extent of the business.
36. Be that as it may, the medical treatment record filed before us shows that the Complainant had undergone a lot of pain emotionally and functionally on account of the rhinoplasty performed on 15.08.2005. Taking into consideration that the Complainant underwent several procedures on his nose subsequent to the Rhinoplasty performed, and had undergone a lot of mental agony, we find it a fit case to award a lumpsum compensation of Rs. 5 lakhs towards the mental agony suffered. It is pertinent to note that the Complainant had not filed any comprehensive statement/bills of all the medical expenses incurred towards the treatment rendered till date. However, having regard to the fact, that admittedly the Complainant had undergone more than 5 procedures/surgeries, an amount of Rs. 1,00,000/- is being awarded towards medical expenses incurred. At the cost of repetition, it is observed that the Complainant did not substantiate by any documentary evidence, the type of medical treatment that may be required to be taken abroad or in the near future, which could be necessary to improve his condition. Hence, the prayer for Rs. 15 lakhs towards medical treatment abroad is hereby disallowed.
37. It is a well settled proposition that the hospital is also vicariously liable for the acts of its doctors vide Savita Garg vs. National Heart Institute, (2004) 8 SCC 56, also followed in Balram Prasad vs. Kunal Saha, (2014) 1 SCC 384.
38. Taking into consideration all the afore-mentioned reasons and facts and circumstances of the case, this Appeal is allowed and the order of the State Commission is set aside. The first and second Respondents i.e. the treating Doctor and the Nursing Home are jointly and severally liable to pay the compensation amount of Rs. 5 lakhs and the medical expenses of Rs. One lakh within four weeks from the date of receipt of this order, failing which, the amount would attract interest at 9% p.a. from the date of filing of the complaint till the date of realisation. We also award costs of Rs. 10,000/-.
39. Before parting with the case, we place on record our appreciation for the valuable assistance rendered by Mr. Rahul Sharma, the learned Amicus Curiae. He may be paid a sum of Rs. 10,000/-, as out of pocket expenses, if not already paid, from Consumer Legal Aid Account for the assistance rendered by him to this Commission.
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(D.K. JAIN, J.) PRESIDENT ...............................
(M.SHREESHA) MEMBER Ar/vs ......................J D.K. JAIN PRESIDENT ...................... M. SHREESHA MEMBER