State Consumer Disputes Redressal Commission
E.Syamala (Died), vs Dr. Alaxander Abraham, on 28 February, 2013
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. A/11/104 (Arisen out of Order Dated 23/12/2010 in Case No. CC/03/92 of District Pathanamthitta) 1. E.SHYAMALA ULIKKANAMKOTTU VADAKKEKARA HOUSE,PARAKODE .P.O,ADOOR PATHANAMTHITTA KERALA ...........Appellant(s) Versus 1. DR.ALEXANDER ABRAHAM MARIYA HOSPITAL ADOOR PATHANAMTHITTA ...........Respondent(s) BEFORE: SRI.M.K.ABDULLA SONA PRESIDING MEMBER PRESENT: ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NO. 104/11
JUDGMENT DATED: 20.02.2013
PRESENT:
SHRI. K. CHANDRADAS NADAR : JUDICIAL MEMBER
SHRI. A. RADHA : MEMBER
1. E.Syamala (died),
D/o Eswariamma,
Ulikkanamkottu Vadakkekara House,
Parakodu.P.O, Adoor Taluk,
Pathanamthitta District.
2. Eswariamma,
Plavila House, Puthussery Bhagam,
Erathu Village, Adoor, : APPELLANTS
Pathanamthitta District.
3. Vineeth Kumar,
S/o late Syamala,
Ulikkanamkottu Vadakkekara House,
Parakodu.P.O, Adoor Taluk,
Pathanamthitta District.
(By Adv: Sri.T.S. Mohanan)
Vs.
1. Dr. Alaxander Abraham,
S/o V.C. Abraham,
Mariya Hospital, Adoor,
Permanent address at T.C.1/826,
Jesu House, Kumarapuram,
Thiruvananthapuram.
Present residence address at
P.O.Box No.94666, Abudubai, U.A.E.
(R1 by Adv: Sri.Ajith Prabhav)
2. Dr.M.J.John, M.S.Ortho,
Mariya Hospital, K.P.Road, Adoor,
Pathanamthitta District.
3. M/s Mariya Hospital, Adoor,
R/by Managing Partner-
Rajan Thomas, Mariya Hospital,
K.P.Road, Adoor,
Pathanamthitta District.
(R2 and R3 by Adv: Smt. Sreeja Sasidharan)
JUDGMENT
SHRI.K. CHANDRADAS NADAR : JUDICIAL MEMBER Appellants were additional complainants 2 and 3 in OP.92/03 in the CDRF, Pathanamthitta. That complaint was originally filed by one Syamala as the sole complainant claiming compensation of Rs.12,09,500/- in the CDRC, Thiruvananthapuram. Subsequently on enhancement of the pecuniary jurisdiction of the district Forums it was transferred to CDRF, Pathanamthitta. Later the complainant died and her mother and son were impleaded as additional complainants 2 and 3. Smt. Syamala filed the complaint on the following allegations. She approached the opposite parties on 29.11.2000 for treatment with complaints of pain, weakness and paralysis to her right leg. She consulted opposite parties 1 and 2 and continued her treatment till 30.6.2001. During her treatment repeated laboratory tests were conducted and X-rays and scan were taken. Though she took medicines for several days there was no relief. So she enquired the doctors whether she had to go to any other hospital for better treatment but the doctors advised her to continue treatment as inpatient in the hospital. Accordingly she got admitted in the Maria Hospital. The 3rd opposite party is the Managing Director and partner of the Maria Hospital. The doctors told the complainant that a minor surgery would solve her problems as complications were due to varicose vein and degeneration of her discs. There was compression in the veins in between the vertebra. The complainant was made to believe that surgery will be done by Neuro Surgeon. But the opposite parties have not disclosed the fact that the proposed surgery was a Neuro surgery and they had no facilities for such a surgery. Subsequent to the surgery performed by the opposite parties to the complainant she was completely paralysed below the hip and she was further advised to undergo another surgery at a cost of Rs.90,000/-. Since she had no improvement till then. She did not accept the proposal for the 2nd surgery. In the meanwhile she was subjected Physiotherapy but there was no use. Anyhow she got discharged but continued Physiotherapy in the hospital of the 3rd opposite party. Cortisone drug were administered to her and she was further subjected to radiation by frequent taking of X-rays. So she consulted other doctors who advised her to go to the Medical College Hospital, Thiruvananthapuram. A reference letter was issued from the hospital of the 3rd opposite party to the Medical College Hospital, Thiruvananthapuram. At the Medical College Hospital, Syamala was subjected to many investigations and scan was taken. It was revealed from the scan that at the lower part of the spine where surgery was done at the Maria Hospital, there was no deformity either to discs or vein. On the other hand the deformity was on the upper part of the spine. A bulging was found on the upper area of the spinal cord. The Neuro surgeon by conducting an operation removed the cyst. The opposite parties failed to diagnose that deformity in the D5 area was the cause of the complaint. Instead they conducted surgery at the lower portion ie at the level of L5 and L4. Instead of removing the cyst in the D5 area the opposite parties removed portions of vertebra causing injury to the nerves from the brain. Consequent to the said unnecessary surgery the complainant became paralysed below her hip. After the treatment at Medical College Hospital she continued Physiotherapy and she had regained partially, her ability to walk. After physiotherapy she is able to walk with the help of others. The treatment given by the opposite parties was negligent. This was the root cause of the paralysis suffered by the complainant. Opposite parties 2 and 3 are not qualified and competent to conduct neuro surgery. As a result of the negligent acts of the opposite parties the complainant sustained huge financial loss and suffered mental agony. Hence the complaint.
2. The opposite parties filed joint version. They admitted that the complainant Syamala was treated at their hospital. She met the opposite parties with complaints of weakness of the left lower limb and instability of the left knee. X-ray revealed spondylosis L-5 pedicle with probable spinal stenosis L4-5 S-1. Opposite parties suggested MRI scan but she was not in a position to afford it due to financial stringency. She was given oral medication for her symptoms and she went back home. On 4.1.2001 she again came with complaints of increased pain. The 1st opposite party advised her to get MRI of lumbar spine. MRI scan was taken by her on 9.1.2009 at Devi Laboratory, Kumarapuram which showed degeneration of L3-4 and L4-5 intervertebral discs with mild bulging annuli of L3-4 and L4-5 discs causing compression over existing nerve root bilaterally and indentation over the thecal sac
3. On the basis of the findings surgery was done on 17.1.2001 after obtaining consent of Smt. Syamala and after conducting all pre-operative investigations. The surgery was fully successful and on the 3rd day after surgery she was allowed to stand on her own and she was shifted to her room and she was discharged on 24.1.2001. The sutures were removed on 1.2.2001 and the power of her knee was slowly improving. But on 24.3.2001 the complainant came to the hospital complaining of weakness of both lower limbs which developed due to a fall, two weeks prior to the said visit, X-ray was taken which showed no new fracture. The 1st opposite party asked the complainant to get new MRI scan but she did not care to take the same for want of money. The 1st opposite party advised the complainant to go to the Medical College Hospital but she was not amenable to the suggestion and wanted to be treated at Maria Hospital. Accordingly she was administered medicines considering the possibility of cord oedema and she was discharged on 3.4.2001 with advice to go for the neuro check up at a higher centre. But the complainant again approached the 1st opposite party on 17.4.2001 with worsened symptoms. The 1st opposite party advised her to seek neurological consultation, but she was reluctant to do so. On 17.7.2001 the X-rays and treatment summary of the complainant were given to her relatives for the purpose of availing treatment at the Medical College Hospital, Thiruvananthapuram.
4. The opposite parties had only offered quality treatment to the complainant and they had not guaranteed any cure. The surgery performed to the complainant was a major one and her consent was obtained before the surgery. The 1st opposite party never told the complainant that she had varicose veins surrounding her spine. The surgery performed by the opposite parties was not a neuro surgery. The surgery done on her was Laminectomy of the L4 and L5 vertebra and the spinal cord of the complainant was not co-operated. The 1st opposite party who performed the said surgery is qualified and experienced Ortho Surgeon. The 2nd opposite party had not participated in the surgery, the surgery was successful. It is incorrect to say that the cause of paralysis of the complainant was due to the negligent surgery. The conditions of the complainant improved after surgery till 24.1.2001. There was no urinary infection for the complainant during the post operative period. The allegation that the opposite parties told her that another surgery costing Rs.90,000/- was required is false. The averment that when the complainant was subjected to scan at the Medical College Hospital, Thiruvananthapuram no fault was found with her spine at the region where surgery was done by the 1st opposite party itself goes to show that the surgery done was successful. The 1st opposite party by surgery removed the posterior bony part of the L4 vertebra to relieve cord pressure. The allegation that there was mistaken diagnosis is false. From the records at the Medical College Hospital, it can be seen that at the time of admission, there was power in the lower limb. Neuro surgical consultation and scan done at the Medical College Hospital showed meningioma and another separate cyst was detected. Hence that was the 2nd illness the complainant developed. As a result she developed weakness at levels much above the level at which the 1st opposite party performed surgery. Hence it was not the result of any fault in the surgery done by the 1st opposite party. The 1st opposite party cannot be blamed for the delay in the diagnosis of the 2nd illness namely meningioma. It was the complainant who delayed neurological consultation. There was no negligence from the side of the opposite parties. The allegation that dangerous medicines were administered and repeated X-rays taken had affected the spinal cord of the complainant is false. One person by name Vijayan demanded huge sum from the opposite parties alleging imperfect treatment at the Maria Hospital. The 3rd opposite party declined to give any money to him. So he has instigated and misled the deceased complainant to file the case. The opposite parties sought dismissal of the complaint.
5. Before the Forum 4 witnesses were examined on behalf of the additional complainants as PWs1 to 4. Exts.A1 to A11 were marked on their side. The opposite parties examined, 1st opposite party as DW1 Exts.B1 to B5 were marked on their side.
6. The Forum held that the complainants could not establish deficiency of service on the part of the opposite parties and accordingly dismissed the complaint. Hence the appeal by the aggrieved additional complainants 2 and 3. The only point that arises for consideration is:-
Whether the conclusion of the Forum that deficiency of service on the part of the opposite parties is not established can be sustained?
7. According to Syamala the deceased complainant she approached the opposite parties on 29.11.2000 with complaint of pain, weakness and paralysis to her right leg and she consulted opposite parties 1 and 2, two Ortho Paedic doctors at the Hospital of the 3rd opposite party. It is admitted that deceased Syamala was treated at the hospital of the 3rd opposite party Exts.A1 and B1 show that deceased Syamala went to the hospital of the opposite parties on 29.11.2000. But according to the opposite parties only the 1st opposite party had treated deceased Syamala. Not only that the contention is that deceased Syamala approached the opposite parties with weakness of left lower limb and instability of left knee. X-ray was taken at the hospital and according to the opposite parties X-ray revealed spondylosis L-5 pedicle with probable spinal stenosis L-4 and L-5, S1 level. Though the 1st opposite party suggested her to take MRI scan she was not willing due to financial difficulties. So oral medications were prescribed but on 4.1.2001 she returned with increased pain. When MRI scan was taken it revealed degeneration of L3-4 and L4-5 intervertebral discs with mild bulging annuli of L3-4 and L-4-5 discs causing compression over the nerve root bilaterally and indentation over the thecal sac. It was accordingly the Laminectomy was done at the hospital of the 3rd opposite party. According to the opposite party the condition of the patient improved for a while but again the condition worsened. According to the opposite parties neuro surgical consultation was advised. Though initially the complainant was reluctant, later she approached the Medical College Hospital, Thiruvananthapuram. Scan was taken there which revealed meningioma and growth of a cyst at D-9 level. So, the 2nd surgery was performed by PW2 who was the professor of Neuro Surgery at the Medical College Hospital, Thiruvananthapuram during 2001. Ext.A4 is the copy of the discharge summary issued from the Department of Neuro Surgery Medical College Hospital, Thiruvananthapuram.
8. The main grievance of the complainant is that the opposite parties due to wrong diagnosis operated her at L-4 and L5 level and removed portions of the vertebra causing injury to nerves. Consequently she became paralysed below the hip. Though Physiotherapy was done for a prolonged period she could not regain the strength of her legs. Actually her complaint was at D-9 level, so there was failure on the part of the opposite parties in correctly diagnosing her ailment, which is deficiency of service.
9. The learned counsel for the respondents relying on the decision of the Hon'ble Supreme Court in Kusum Sharma and Others Vs. Batra Hospital and Medical Research Centre and Others 2010 KHC 4094 urged that a medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor the very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of the other professional doctor. It is also settled law that even a wrong diagnosis need not necessarily be negligent diagnosis. In this case it appears that PW1 based his diagnosis on Ext.A2 scan report issued from Devi Scans, Thiruvananthapuram. X-ray was also taken. Ext.A2 MRI study revealed early dehydration (degeneration) of L3-4 and L4-5 inter-vertebral disk mild bulging annuals of L3-4 and L4-5 inter-vertebral disk causing compression over the existing nerve root bilaterally and indentation over the thecal sac. It was accordingly the 1st opposite party decided to perform the laminectomy on 17.1.2001. According to the complainant the surgery was not successful. Instead of removing the cyst in the D9 area, the opposite parties removed portions of the vertebra at L4- and L5 level causing injury to the nerves from the brain. According to the opposite parties the operation was successful.
10. It is an admitted fact that even after the operation performed at the hospital of the opposite parties the complaints persisted. It was accordingly the opposite parties advised the patient to have nuero surgical consultation. Treatment summary was issued to her and she consulted PW2 who was the professor of neuro surgery, Medical College Hospital, Thiruvananthapuram. MRI scan of dorsal spine was taken at the Medical College Hospital, Thiruvananthapuram. The diagnosis made in Ext.A3 report was intra dural meningioma at D9 level with small posterior media stinal cyst at D4 level. The patient was admitted at the Medical College Hospital, Thiruvananthapuram on 10.7.2001. Laminectomy was done at T8, 9 and 10 Excision of meningioma at D9 level was also done. According to the patient subsequently physiotherapy continued and her condition partially improved. The question is whether there was in fact wrong diagnosis of the ailment of the complainant and if so it was negligent diagnosis also. To decide this question the only expert evidence available is that of PW2, the Professor of Neuro surgery, Medical College Hospital, Thiruvananthapuram who treated Syamala. Evidence of DW1, the 1st opposite party can be said to be interested. Ext.A4 is the discharge summary issued from the Department of Neuro Surgery, Medical College Hospital, Thiruvananthapuram. As per Ext.A4 and the version of PW2, Syamala was admitted in the hospital with weakness of both lower limbs. She went there with weakness of both lower limbs for the last 8 months. On examination also it was found that there was weakness of both the lower limbs and the weakness was more in the right leg. Due to compression in the spinal cord reflex in the ankle and knee was found to be exaggerated. Sensation was reduced below L-1. As per the MRI scan report tumour was found at D9 position in the spinal cord. PW2 was of the opinion that as per the version of the patient the tumour might have taken 8 months to grow. As per Ext.A4 also such an inference can be taken. Tumour was removed by performing surgery.
11. An argument is taken for the opposite parties that since nothing abnormal was found at D4-D5 level where operation was earlier performed, it can be inferred that the operation performed by the 1st opposite party was successful. While this much inference may not be possible if it is quite obvious that no harm was done by the earlier operation as claimed by the complainants.
12. Referring to Ext.A1 discharge summary issued from the hospital of the 3rd opposite party PW2 deposed that she had approached the opposite parties complaining of weakness of left lower limb and instability of left knee. On examination she was found to have spondylolisthesis with spondylosis L5 vertebra. It was accordingly laminectomy was done. Clinical findings are not mentioned in Ext.A1. The complaints in Exts.A1 and A4 might be common. The weakness of lower limbs was due to compression in the spinal cord. According to PW2 due to growth of tumour the complaints noted in Ext.A1 can develop but pain need not develop. This version of PW2 is material for it appears to be the common case that the patient returned in the opposite party hospital with increased pain in her legs. PW2 also explained that if as a consequence of the disease noted in Ext.A4 pain develops it would be first at D9 portion and would later spread to stomach area if pain develops as a consequence of the disease noted in Ext.A1 it would be at lumbar region. As explained earlier it may spread to the legs. This version of PW2 is very significant and it shows that in fact Syamala was having problems both at L4-L5 level and D9 level. So it cannot be said for a moment that the diagnosis at the hospital of the opposite parties was erroneous or negligent. The version that nearly 8 months time would have taken to develop the tumour at D9 level would indicate that it began to develop by or around the time, the patient went to the hospital of the opposite parties and at that time the tumour was at the initial stage of the development. A pointed question was asked to PW2 whether treatment was made at the hospital of the opposite parties wrongly diagnosing that there was disease mentioned in Ext.A1. PW2 answered that it was difficult to answer with the particulars in Ext.A1. According to him whether laminectomy was needed or not could be said only if MRI report and clinical findings are perused so PW2 refused to give an inference in the absence of clinical findings in Ext.A1. He also gave the opinion that if there was weakness and pain meningioma could be done and it is mentioned in Ext.A1 that the patient returned with greater pain. So, from the evidence of PW2 there is no material to arrive at the conclusion that the surgery performed at the hospital of the 3rd opposite party was unnecessary or was based on erroneous diagnosis. As mentioned earlier even a wrong diagnosis need not necessarily be negligent diagnosis. It appears that both opposite parties 1 and 2 are qualified Orthopaedic surgeons. The records as a whole show that they have discharged their duties with reasonable expertise.
13. There is yet another interesting aspect in this case. Dr.Vijayan who gave evidence as PW3 is conducting the case on behalf of the additional complainants. He has issued Ext.A5 cash bill for Rs.,260,000/- for doing physiotherapy and Ayurvedic treatment for the deceased complainant from October 2002. He claims to be a qualified Allopathic doctor as well as Ayurvedic doctor. In Ext.A5 registration numbers as A-class practitioner of modern medicine and ayurvedic medicine are mentioned. But there is nothing to show that he holds MBBS degree or BAM degree. The contention of the opposite parties is that he had infact instigated a complainant to approach the Consumer Forum. In support of their argument, the opposite parties relied on the version of PW4, the 3rd additional complainant. He admitted that amount is due to Dr.Vijayan towards the treatment of the deceased complainant. There is agreement between them and Vijayan that in case favourable order is obtained half the amount would be handed over to Dr.Vijayan. So, the intention is clear and at the same time opposite parties 1 and 2 are certainly highly qualified when compared to PW3. On the whole negligence in the matter of diagnosis and treatment of deceased Syamala is alleged without sufficient basis. There is no error in the findings of the CDRF, Pathanamthitta. Hence the appeal is devoid of merit.
In the result the appeal is dismissed but without costs.
K. CHANDRADAS NADAR : JUDICIAL MEMBER A. RADHA: MEMBER VL.
[ SRI.M.K.ABDULLA SONA] PRESIDING MEMBER