National Consumer Disputes Redressal
Manish Sood vs Dr. J.S. Arora, Holy Family Hospital And ... on 1 August, 2001
ORDER
D.P. Wadhwa, J. (President)
1. This is an action for damages for professional negligence. Complainant is Manish Sood, at the relevant time, a young Merchant Navy trainee. The opposite parties are Dr. J.S. Arora, an Orthopaedic Surgeon and Holy Family Hospital (Hospital, for short), Hospital is sought to be held liable vicariously. Manish was suffering from Lumbar Disc Prolapse and was advised laminectomy of L4-5 region. He was operated upon by Dr. Arora on 5.8.91 at Hospital Manish did not get any relief after the operation and when X-ray and MRI were taken it was found that laminectomy has been done at L3-4 region. Manish again went in for operation. This time operation was performed by Dr. (Col.) V.S. Madan, a Neurosurgeon, at Sir Ganga Ram Hospital who did laminectomy at L4-5 region. Manish recovered from his illness. He now complains of medical negligence by Dr. Arora and damages both special and general., he has put the figure at Rs. 20.00 lakhs. When the complaint was filed there were two respondents, Dr. Arora and Holy Family Hospital. Thereafter by an order New India Assurance Company was added as a third opposite party as it was stated that Dr. Arora had insurance cover for any alleged claim of medical negligence. Dr. Arora says that Manish was referred to him by Holy Family Hospital but Holy Family Hospital says Manish was the private patient though operation was performed in its hospital. However, it is their affair. Dr. Arora was admittedly a senior Orthopaedic Surgeon attached to the Hospital and services were provided by the Hospital. As to what arrangement inter se exist between Dr. Arora and Holy Family Hospital is not known to Manish.
2. Manish was admitted in the Hospital on 4.8.91 and discharged on 11.8.91.
3. Manish was a trainee in the Merchant Navy with Great Eastern Shipping Co. Ltd. and was getting a stipend of Rs. 1500/- per month. He was entitled to certain perks. after the completion of his training he would have been employed as Nautical Watch Keeping officer with a monthly salary of about Rs. 15,000/- plus perks. In April, 1991 he got pain in low back. He was admitted in the Padmini Nursing Home, Madras on 29.4.91 where he remained till 14.5.91 Dr. Derek D'Souza, Consulting Orthopaedic Surgeon examined him and diagnosed that he was suffering from lumbar disc prolapse and advised conservative treatment with bed rest, traction etc. Conservative treatment it appeared failed. He was advised to have 'Myelogram' done. This was got done on 7.5.91 which showed "extramural indentation in the dye column at L4 L5" He was advised Percutaneous Lumbar Discectomy and if that did not give complete relief, he was to under to surgery. Manish then came to Delhi. On coming to Delhi he consulted Dr. U.K. Sadhoo Orthopaedic Surgeon who confirmed that there was an indentation of the lumbar L4/L5 a region and advised operation (decompression). Manish came to know about Dr. Arora working as Consulting Orthopaedic Surgeon in Holy Family Hospital, a reputed and prestigious Hospital. He consulted Dr. Arora who first on 8.7.91 advised him to try physiotherapy and in case there was no improvement then, if fit, to go for surgery (disc decompression). Dr. Arora again examined him on 27.7.91 and advised surgery. In the prescription (Marked Exh. A1) he wrote:
R-15 "Mr Manish Sood (20 M) L4/5, Pivd-1/4/91; SLR -< L-40 © Ankle reflex; Stiff spine, Myelogram + ve intermittent claudication Rx will suggest surgery on 5.8.91 Admit HFH -2 Bedroom on Sunday 4.5.91 Sd/-
CBC, Urea, Sugar, Chest PA on Sunday.
Laminectomy of L4/5 region on Monday at 5.8.91 Sd/-
4. Dr. Arora suggested surgery on 5.8.91. Hospital was asked to admit Manish on Sunday - 4.8.91 Routine tests were suggested like CBC, Urea, Sugar, Chest PA were suggested on Sunday. Then Dr. Arora wrote "LAMINECTOMY OF L4/5 region on Monday at 5.8.91". As per direction of Dr. Arora, Manish got admitted in the Hospital on 4.8.91 Surgery was performed by Dr. Arora on the following day Surgery note was prepared by Dr. Munjal who assisted Dr. Arora Details of surgery note are as under:
_______________________________________________________________________________________ "Anaesthesia GA Date 5.8.91 Anaesthetist ..... Time started 2 PM Ended 2.30 PM Surgeon Dr. J.S. Arora Assistant DR. Munjal Pre-operative Diagnosis L4-5 Disc prolapse Sponge Count.....Whom Tessi Junas Post Operative Diagnosis Lumbar Canal Stenosis Operation Laminectomy Description ......
Laminectomy done L4-5 L5-S1 region disc found to be normal. But lamina + ligamentum flavum were hypertrophied suggestive of Lumbar Canal Stenosis."
Sd/-
______________________________________________________________________________________
5. Discharge summary of the Hospital shows the date of admission on 4.8.91 and that of discharge 11.8.91, diagnosis - L4-L5 Disc prolapse, Operation/Treatment _ Laminectomy L4-5, Result - satisfactory Admission and Discharge report of the Hospital shows that Manish was admitted on 4.8.91 and discharged on 11.8.91. at the time of admission diagnosis was PIVD L4-5. Finally diagnosis was LCS (Lumbar Canal Stenosis), operative procedure shown is Laminectomy L4+5. It also contains signatures of father of Manish giving authorisation for operation. Further case summary and discharge record shows presenting symptoms- pain in back - one year. Treatment is Laminectomy L4+L5. Operation findings shows canal narrow, lamina hyprtrophid. There isa separate authorisation for surgical treatment given on 4.8.91 by father by Manish. It shows operation: Laminectomy L4-L5 under general anaesthesia. GOPD continuous sheet starts from the date 4.8.91. It records for Laminectomy tomorrow, L3-L5 for? Disc. the persons who wrote this portion marked red, did not perhaps know which disc it was to be of which Laminectomy was to be performed. That is why he put the sign of (?). Then it reads that myelogram already done. On 19.9.91 Dr. Arora again examined Manish and noted that he had not got sufficient relief. He advised X-ray of Lumbo sacral spine. Manish consulted Dr. (Mrs.) J.S. Khurana on 1.10.91, as suggested by Dr. Arora, who found evidence of laminectomy at L3-4 region. Her report is as under:
"Lumbo sacral spine: AP, lateral with cone view L5-S1, there is evidence of laminectomy at L3-4. Posterior arches of L3-4 are not visible Vertebral bodies are normal. Intervertebral disc spaces, pre and paravertebral spaces are normal".
6. Manish has deposed that after Dr. Arora saw the X-ray report taken by Dr. (Mrs.) Khurana, he was visibly perturbed but gave no explanation to Manish. Manish says Dr. Arora then avoided meeting him. He was not available for consultation. Then suddenly Dr. Arora went aborad. At this stage Dr. (Col) V.S. Madan, Senior Consultant Neurosurgeon, Sir Ganga Ram Hospital came into the picture. Dr.(Col) Madan examined Manish on 31.10.91. He found that post operative X-ray showed evidence of laminectomy L3-4 and that there was no reliefs to Manish after surgery. At the advice of Dr. (Col.) Madan, MRI of the L.S. Spine of Manish was taken on 8.11.91 Dr. (Mrs.) N. Bajaj, Radiologist who took the MRI gave her report as under':
"FINDING" Normal signal intensity form the bone marrow within the vertebral bodies. There is decreased signal intensity of the L4-5 disk. The anterior epidural space shows indentation at L4-5 & L5-S1 levels and there is compromise of the posterior epidural space at L3-4 level on the right of midline.
Axial images shows an area of signal fail out both on T1 & T2* in the right side at L3-L4 level lamina which is compromising on the spinal canal and carrying (causing?) compression on the thecal sac (slice 16).
L4-5 shows a moderately large central and bilateral posterolateral herniation of the nucleus pulposus compressing the thecal sac and nerve roots bilaterally.
L5S1 shows a small central bulge compromising on the anterior epidural space.
Mixed heterogenous signal intensity obtained from the posterior vertebral osseous and soft tissue elements from L3 to L5 level.
IMPRESSION:
1. Post operative study demonstrates moderately large central an bilateral posterolateral HNP at L4-5 compressing the thecal sac and nerve roots.
2. Compression of the thecal sac at L3-4 level from the posterior aspect by? Cortical bone fragments? Mettalic (metallic?) shavings.
3. Mild to moderate lumbar canal stenosis".
7. When Dr. Madan saw the MRI he noted that it was a case of L4-5 disc prolapse and wanted Manish to get himself admitted in the Nursing Home. Manish was admitted int he Nursing Home on 17.11.1991. He was operated upon by Dr. Madan next day. He was fit for discharge on 29.11.91. Discharge report shows that diagnosis was Disc L4-5 Prolapse. At the time of discharge the condition of Manish was satisfactory. Thereafter condition of Manish progressively improved with the result he fully recovered. In his prescription dated 14.2.92 as a follow up case of Disc L4-5 Prolapse, he was advised by Dr. (Col.) Madan to get his X-ray and asked Manish to come to him on 17.2.92 for review of his fitness. On 18.2.92 Dr. Madan gave medical report of Manish which is as under:
"Manish Sood was examined by me on 31.10.91 at my clinic. He developed back ache and Rt. Sciatic pain on 1.4.91 He had his myelogram in Madras on 7.591 which showed protrusion of L4-5 intervertebral disc. He was subsequently operated upon and Laminectomy L4-5 was carried on 5.8.91 in Holy Family Hospital, Delhi. Patient had no relief after surgery on examination he had weakness of Right Extension Halluis and restricted straight leg raising more on the right side. Neurologically he had compression of L5 root on the right side. Post operative X-ray Lumbar spine dated 1.10.91 showed L3 and partial L4 Laminectomy. MRI dated 8.11.91 on my advice showed moderately large central disc protrusion at L4-5 and posterior compression at L3-4 level. he was re operated at Sir Ganga Ram Hospital Delhi by me on 18.11.91. L4 laminectomy was extended and large protruded L4-5 disc was removed. Posterior compression by bone fragment at L3-4 was also removed. Following second surgery he had complete relief of symptoms. He is asymptomatic since 3rd week of December, 1991.
At present he is able to walk for more than ten kilometre. He is driving his own scooter. On examination straight leg raising is 90 degrees each side. There is no neurological deficit.
In view of the symptoms and excellent improvement after second surgery and no recurrence of symptoms after moderate physical activity he is declared medically fit so far as his spinal problem is concerned."
8. Manish joined his duties in the Merchant Navy in March, 1992 after having undergone all this trauma of two surgical operations. He served a notice through his Advocate on Dr. Arora as well as on the Hospital complaining negligence and seeking damages. He alleged that from the examination of medical reports and various tests and investigation it was found that instead of performing laminectomy of L4-5 region Dr. Arora due to gross negligence performed laminectomy of L3-4 region. He sought Rs. 20.00 lakhs as damages. Dr. Arora replied through his advocate. There is no reply from the Hospital. He writes;
"On 5.8.91 surgery was performed. Since on clinical assessment a pressure on the 4th Lumbar root was demonstrable a fenestration technique i.e. partial laminectomy of the Lumbar 4th vertebra was carried out. Small fragments of disc were removed. To give him the benefit of decompression of lamina of the III Lumbar veterbra was also exercised (excised?), and nerves were seen to relax. The muscles and skin sutured in layers.
.....
Dr. J.S. Arora while operating Mr. Manish Sood, carried out a fenestration technique i.e. partial laminectomy of the lumbar 4th vertebra and removed small fragment of disc and thus to give him the benefit of compression that Lamina of the III Lumbar vertebra was also exercised and nerves were seen to relax. The muscles and skin sutured in layers. Please take notice that Dr. J.S. Arora gave him the aforesaid treatment as was required at that time".
9. We may refer in detail of para 12 of Manish's notice and reply to that para of Dr. Arora.
Manish:
"That it is thus apparent from the examination of medical experts and various test and investigations that instead of performing LAMINECTOMY OF L4-5 region you Dr. J.S. Arora due to gross negligence and incompetency performed LAMINECTOMY of L3-4 region".
Dr. J.S. Arora "Para No.12, as stated, is wrong and incorrect, hence denied. It is specifically denied that Dr. J.S. Arora in the present case committed any negligence and/or incompetency by performing Laminectomy of L3-4 region. In reply it be stated that on 5.8.1991 Dr. J.S. Arora carried out operation of Mr. Manish Sood as it was required in view of the situation and circumstances. Dr. J.S. Arora acted as a prudent and experienced Surgeon and id all the required medical surgery/treatment. In view of it, it is specifically wrong malafide and misconceived to say that Dr. J.S. Arora committed any error or negligence or showed any incompetency while giving medical treatment to your client."
10. Since there was denial of claim of Manish of by Dr. Arora and the Hospital he field a complaint in the National Commission seeking damages.
11. As noted above at a later stage during the proceedings New India Assurance Company Ltd. was also added as a third opposite party. Case of the Insurance Co. is as to what has been stated by Dr. Arora and the Hospital in their respective replies. In the reply of the Hospital it had been denied that Dr. Arora had been appointed in the Hospital. it is stated that he is an Orthopaedic Surgeon and has been given facility to bring his patients for hospitalisation and surgery purposes and that it is the Hospital which has charged fee from Manish and also fee for Dr. Arora. Dr. Arora in his evidence said that Mr. Manish was referred to him by the Hospital. There is no rebuttal by the Hospital to the statement.
12. In reply to the complaint Dr. Arora now states that laminectomy was performed not only at L3/4 region but as well as L4-5 region. Parties went to trial Manish examined himself as his witness and also produced Dr. (Mrs.) N. Bajaj and Dr. (Col.) V.S. Madan as witnesses. Dr. Arora examined himself but did not produce and other witness. He did not examine Dr. Munjal who assisted him in the operation on 5.8.91. One other witness Dr. Jawahar Dev, a Neurosurgeon, cited by him was given up without his being produced in the Commission.
13. Before the discuss evidence and reach our conclusion it would be appropriate to refer to certain basic principles in the case of medical negligence. There is a duty of care which doctor owes to his patient. when there is breach of that duty harm follows as a result. Primary consideration is the diagnosis. First conservative treatment is advised and when it appears that conservative treatment does not bring desired results doctor advises surgical treatment, if that would cure the patient. In a civil case burden of proving that the defendant was negligent, rest with the plaintiff. It is note for the defendant to show that he was not negligent. The standard of proof required is the normal civil standard, 'on the balance of probabilities' which means more likely than not-not the criminal standard of "beyond reasonable doubt". But the cases of professional negligence create particular problems and, in practice it has to be higher standard of proof than for ordinary civil cases of negligence. In a given case plaintiff may be able to rely on an inference of negligence where the circumstances are such that the injury of which he complains does not normally happens in the absence of negligence. This is based on the principle of res ipsa loquitor (the thing speak for itself). This requires defendant to provide some reasonable explanation of the all incidents which could have occurred without negligence by him.
14. In Bolam v. Friern Hospital Committee - [1957] 2 All ER 118 address of McNair, J to the jury on medical negligence has since become the hallmark on the test of medical negligence. it is called the Bolam Test. This is how the address, in relevant part, proceeds:
"Before I turn to that, I must explain what in law we mean by 'negligence'. In the ordinary case which does not involve any special skill, negligence in law means this. Some failure to do some act which a reasonable man in the circumstances would do, or doing some act which a reasonable man in the circumstances would not do, and if that failure of doing of that act results in injury, then there is a cause of action. How do you test whether this act or failure is negligent? In an ordinary case it is generally said, that you judge that by the action of the man in the street. he is the ordinary man. In one case it has been said that you judge it by the conduct of the man on the top of a Clapham omnibus. He is the ordinary man. But where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not is to eh test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not posses the highest expert skill at the risk of being found negligent. It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art....The case of a medical man negligence means failure to act in accordance with the standards of reasonably competent medical men at the time...... There may be one or more perfectly proper standards than he is not negligent... A mere personal belief that a particular technique is best is no defence unless that belief is based on reasonable grounds. That again is unexceptionable.... In recept Scottish case, Hunter v. Hanely - [1955] S.L.T. 213 at page 217, which dealt with medical matters the Lord President (Lord Clyde) said this:
"In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion, and one man clearly is not negligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill or knowledge than others would have shows. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor or ordinary skill would be guilty of if acting with ordinary care".
McNair J. than summed up which is known as Bolam Test:
'A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. I do not think there is much difference in sense. it is just a different way of expressing the same thought. Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of pinion that takes a contrary view. At the same time, that does not mean that a medical man can obstinately and pig-headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion. Otherwise, you might get men today saying 'I don't believe in anaesthetics. I don't believe in antiseptics I am going to continue to do my surgery in the way it was done in the eighteenth century'. That clearly would be wrong".
15. Bolam Test was approved by the Supreme Court. It reference can be found in Achutrao Haribhau Khodwa & Others Ors. Vs. State of Maharashtra and others - (1996) 2 SCC 634 Justice Bharucha, speaking for the Court, said:
"Before considering whether the respondents in the present case could be held to be negligent, it will be useful to see as to what can be regarded as negligence eon the part of a doctor. The test with regard to the negligence of a doctor was laid down in bolam v. friern Hospital Management Committee-(1957)2 ALL ER 118. It was to the effect that a doctor is not guilty of negligence if he acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. This principle Bolam Case has been accepted by the house of Lords in England as applicable to diagnosis and treatment. (See Sidaway v. Board of Governors of Bethlem Royal Hospital-(1985) 1 All ER 643, HL (AC at 881). Dealing with he question of negligence, the High Court of Australia in Rogers v. Whitaker - (1913) 109 ALR (sic) has held that the question is not whether the doctor's conduct accords with the practice of a medical profession or some part of it, but whether it conforms to the standards of reasonable care demanded by the law. That is a question for the court to decide and the duty of deciding it cannot be delegated to any profession or group in the community. It would, therefor,e appear that the Australian High Court has taken a somewhat different view that the principle enunciated in Bolam case. This court has had an occasion to go into this question in the case of Laxman Blakrishna Joshi (Dr.) V. Dr. Trimbak Bapu Godbole AIR 1969 SC 128. In that case the High Court had held that the death of the son of the claimant was due to the shock resulting from reduction of the patient's fracture attempted by the doctor without taking the elementary caution of giving anaesthetic. In this context, with reference to the duties of the doctors to the patient, this court, in appeal observed as follows:
"The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice 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 talks 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 law requires".
16. In Whitehouse v. Jordan and another - [1980] 1 All 650, Court of Appeal observed that an error of clinical judgment by a medical practitioner did not itself amount to negligence in the legal sense. Trial Judge had decreed the claim of the plaintiff against Jordan, a medical practitioner, holding him guilty of negligence and awarded (SIC) 100,000/-. Court of appeal reversed that judgment. Leading judgment was delivered by Lord Denning MR. Lord Lawton LJ. in its concurring judgment, quoting Lord Denning in earlier cases, said:
"The standard of proof which the law imposed on the plaintiff was that required in civil cases, namely proof on the balance of probabilities, but as Denning LJ said in Hornal v. Neuberger Products Ltd. [(1956) 3 All ER 979 at 973: 'The more serious the allegation the higher the degree of probability that is required. In my opinion allegations of negligence against medical practitioners should be considered as serious. First the defendant's professional reputation is under attack. A finding of negligence against him may jeopardise his career and cause him substantial financial loss over many years. Secondly, the public in test is put at risk, as Denning LJ pointed out in Roe v. Ministry of Health [(1954)2 All ER 131 at 139]. If courts make findings of negligence on flimsy evidence or regard failure to produce and expected result as strong evidence of negligence, doctors are likely to protect themselves by what has become known as defensive medicine, that is to say, adopting procedures which are not for the benefit of the patient but safeguards against the possibility of the patient making a claim for negligence Medical practice these days consists of the harmonious union of science with skill Medicine has not yet got to the stage, and may be it never will, when the adoption of a particular procedure will produce a certain result. As Denning LJ said in Roe v. Ministry of Health [(1954) 2 All ER 131 at 137] "It is so easy to be wise after the event and to condemn as negligence that which was only a misadventure. We ought always to be on our guard against it, especially in cases against hospital and doctors. Medical science has conferred great benefits on mankind, but these benefits are attended by considered risks. We cannot take the benefit without taking the risks".
17. Donaldsons LJ gave a dissenting judgment. In his concluding portion of the judgment he said:
"Mr. Jordan is entitled to think and to say that the judge's judgment was wrong. I cannot. But I can and do say this, if it is of any comfort to him. There are very few professional men who will assert that they have never fallen below the high standards rightly expected of them. That they have never been negligent. If they do, it is unlikely that they should be believed. And this is as true of lawyers as of medical men. If the judge's conclusion is right, what distinguishes Mr. Jordan from his professional colleagues is not that on one isolated occasion his acknowledged skill partially deserted him, but that damage resulted. Whether or not damage result from a negligent act is almost always a matter of chance and it ill becomes anyone of adopt an attitude of superiority".
18. This judgment of the Court of Appeal was challenged in the House of Lords which dismissed the appeal. [1981] 1 All ER 267. Two observations in the judgement of the House of Lords one of Lord Wilberforce and the other of Lord Russel of Killowen, are relevant which were reproduce.
LORD WILBERFORCE "one final word, I have to say that I feel some concern as to the manner in which part of the expert evidence called for the plaintiff came to be organised. This matter was discussed in the Court of Appeal and commented on by Lord Denning Mr. While some degree of consultation between experts and legal advisers is entirely proper, it is necessary that expert evidence presented to the court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation. To the extent that it is not, the evidence is likely to be not only incorrect but self defeating."
LORD RUSSEL OF KILLOWEN:
My Lords, I wish at the outset to emphasise one matter. Some passages in the Court of appeal might suggest that if a doctor makes an error of judgment he cannot be found guilty of negligence. This must be wrong. An error of judgement is not per se incompatible with negligence, as Donaldson LJ pointed out. I would accept the phrase 'a mere error of judgement' if the impact of the word 'mere' is to indicate that not all errors of judgment show a lapse from the standard of skill and care required to be exercised to avoid a charge of negligence"
19. In Dr. Laxamn Balkrishna Joshi v. Dr. Trimbak Bapu Godbole and another - AIR 1969 SC 128, Shelat, J. speaking for the Court, quoted the following observations with approval from Halsburry's Laws of England, 3rd ed. Vol. 26 p.17:
"The duties which a doctor owes to his patient are clear. A per son who holds out ready to give medical advice 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 begin 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.
20. We may at this stage consider what was the surgery that was to be performed on Manish.
21. Vertebral column or the back bone consists of vertebras (also called vertebrae) Each vertebra consists of a bone which has a hole in it through which the main nerve in the human body called the spinal cord passes. A vertebra has two portion one at the back which consists inter alia of two laminas (which are like plates) which protect the spinal cord from the back side and a round bloc (called body of vertebra) which protects the spinal cord from the front side towards the abdomen. Between each pair of these round blocks there are circular discs which act like washers. Inside each disc there is a jelly like substance. The discs serve the purpose of cushions between each pair of the vertebrae. (Different regions of the vertebrae have different names.) In the lumbar region, which occurs in the lower back, thee are 5 vertebrae, which are numbered as lumbar 1 to lumbar 5 which in short are also called L1 to L-5. Sometimes a disc bulges out and the jelly-like substance then presses the nerves roots emanating from spinal cord causing pain in the portion of the body supplied by those particular never roots. The pain down the legs and calves caused by pressure over the lumbar/sacral nerve roots, is in layman's language called 'sciatica'.
22. Prolapsed intervertebral disc (PIVD) between L4 and L5 results in compression of the 5th lumbar root with consequential pain in legs suggestive sciatic and development of relevant clinical signs.
23. Laminectomy is a surgical procedure whereby the lamina is cut and the part of the disc protruding and pinching the nerve is scooped out so as to relieve the pressure on the nerve roots. The affected nerve roots relax which in turn provides the patient relief from the severe pain Laminectomy can be of two types; partial and full. In partial laminectomy only one Lamina (i.e. hemilaminectomy) either fully or partially is cut and necessary procedure performed. In case of full laminectomy, both the laminae are cut and corrective procedures performed.
24. Consistent stand of Manish has been that Dr. Arora performed laminectomy of L3-4 region i.e. he operated on the disc between vertebrae L3 and L4 when laminectomy was to be performed of L4-5 region i.e. vertebrae between L4-5. Stand taken by Dr. Arora in his reply to the complaint is that he performed laminectomy both at L4-5 as well as L3-4 region. We record his explanation as under:
"It is submitted that laminectomy at 4th lumbar i.e. L4/5 region was done Laminectomy can be of two types full and partial. In partial laminectomy, only one Lamina is cut and necessary procedures performed. in case of full Laminectomy, both the laminas are cut and corrective procedures performed. In the present case, only partial laminectomy was done on the 4th Lumbar vertebra i.e. L-4/5 region. Small fragments of the disc were removed. To give benefit of decompression, the lamina of the 3rd lumbar vertebra was also exercised and nerves were seen to relax. Thereafter, the muscle and skin sutured in layers".
25. There was nothing wrong in the diagnosis that laminectomy was to be performed at L4-5 region. Myelogram on 7.9.91 showed an extramural indentation in the dye column at L4-5. The question is, did Dr. Arora perform laminectomy at L4-5 region? Dr. Arora did not prepare any surgery notes of the operation performed by him. It was a major surgery. It was expected of him to write his notes or have them written from the doctors assisting him. In the present case, notes were prepared by Dr. Munjal at the time of operation who was assisting Dr. Arora which note we have reproduced above in detail. This note does not mention anything of L3-4 region. In the discharge certificate issued by Holy Family Hospital there is no mention of any surgical operation in L3-4 region. In his own certificate which Dr. Arora gave on 28.11.91 on the the letter head of Holy Family Hospital, he mentions laminectomy of L4-5 under GA done on 5.8.91. Again we do not find any mention of L3-4 Dr. Arora wants us to believe that this was the spot decision to do surgery at L3-4 region. Dr. Arora is disowning these notes of Dr. Munjal. Dr. Arora extensively cross-examined Dr. (Col.) Madan as to the duty of operating surgeon to prepare notes of the surgery or to have those prepared by the surgeon assisting him at that time. He could not get any help from Dr. (Col.) Madan that it is not the duty of the surgeon to prepare notes. Dr. Arora cannot be heard to say that he was totally unware of the notes prepared by Dr. Munjal. At least Dr. Arora could not disown the note prepared by Dr. Munjal altogether. In any case not to have prepared notes himself or to have those prepared was in itself deficiency in service. Some of his questions to Dr. Madan and his answers on this aspect in his cross-examination, we reproduce:
Advocate: Now Doctors (the third) spot decision which you take and the surgical report is normally prepared in the case of busy surgeon, by his (their) juniors as to what operation has been done and not by the surgeon himself.
Witness: Normally, it is my junior who is doing but this remember, clearly that my junior was on leave, so I did that with the Registrar so this report is prepared by me.
Advocate: Normally, it is prepared by the junior, who is the Registrar, but it is counter signed by the junior consultant. He has enough experience in that field.
Bench: It is not seen by the operating surgeon at all.
Witness: Which one Sir?
Bench: The report prepared by the junior and signed by the Junior Consultant.
Witness: It is the Junior Consultant in the same unit who helps you. It is signed either by the junior or by the senior but it is signed by the consultant.
Bench: Does that pass to the eyes of the operating surgeon or not?
Witness: Operating notes, yes certainly.
Advocates: Do you know that in the Holy Family Hospital there are no junior consultants?
Witness; You see, we have in Ganga Ram Hospital, where I work now. In Army I did not have the juniors, so I have worked there for 23 for the last 12 years I am working in Ganga Ram Hospital and we have a Sr. Consultant and we have a junior consultant. Junior consultant means he is already MCH and then by competition we take them in and so unit comprises of, if I am staying there for 12 years, I am entitled, my junior will become associate, we have have another junior.
Bench: When you wee operating in the army units, you were doing alone.
Witness: Absolutely.
Bench: With the help of some resident.
Witness: Normally, we don't have the residents, we have the O.T. Technicians.
Bench: Who were preparing notes?
Witness: Surgeon himself.
Advocate: Dr. Madan, I suggest you that normally the Sr. Consultant who conduct the operation normally does not see the notes, they are only prepared by junior surgeon.
Witness: When the junior is writing you always scan, you don't countersign, but you always scan, whether he has missed something and if he has missed you can ask him to add that but you don't countersign.
Advocate: That is, if notes are prepared in you presence Witness: They are always. Before the patient is sent from O.T, the notes are prepared.
Advocate: Now, tell me, if the Sr. Consultant has to got immediately for another operation.
Witness: I can't say. Because I don't go anywhere else I can't say".
26. Now what does not trend of cross-examination by Dr. Arora means? Does that mean he was in a great hurry for another operation that he did not care to look into the note of Dr. Munjal?
27. It is difficult for us to disbelieve the note prepared by Dr. Munjal. He was certainly assisting Dr. Arora at the time of operation. If what he wrote is not acceptable to Dr. Arora he should have called Dr. Munjal as a witness. His not having done so, we must raise a presumption against Dr. Arora that note does not support his case now set up. At what stage did Dr. Arora think of his having done laminectomy at L3-4 region. It is not difficult to find. It is only after he saw the X-ray report of Dr. (Mrs.) Khurana dated 1.10.91 it dawned upon him that there was evidence of laminectomy at L3-4 and no evidence of laminectomy at L4-5 region which he was supposed to do. Manish says when he saw this X-ray Dr. Arora was visibly perturbed and he started avoiding him and then Manish was suddenly told that Dr. Arora had gone abroad. Dr. Arora did not offer any explanation to Manish as to why the X-ray showed laminectomy of L3-4 region and not on L4-5 region of which he performed. On the basis of the surgery note of Dr. Munjal, discharge slip of the Holy Family and medical certificate issued by Dr. Arora himself points to the fact there was no mention of laminectomy at L3-4 region. Obviously Dr. Arora has changed his stand. It is a case where the principle of res ispa loquiter applies and for that matter we have to go to the explanation of Dr. Arora if in the circumstances that in reasonable and does it satisfy the Bolam Test?
28. Dr. Arora tries to find another escape route. He wants us to believe that though he performed the operation well, it could be a case of relapse. In this regard we again refer to the cross-examination of Dr. Madan by Dr. Arora.
"Advocate: Now tell me after you have done an operation say on disc L4-L5, could there be a further protrusion after the operation from that very disc?
Witness: Yes, it can happen because the work you are doing is that through this you remove the protrusion and then you go into the disc space, you try to remove all the jelly. Now this is a recorded fact that if you see such patient in a very large number, you can have protrusion at the same level and the percentage given is 10% over 5 years. So 10% of the people over five years can have a disc protrusion from the same level. This is well recorded fact in literature.
Advocate: I say from the same disc which has been operated upon.
Witness: Sure Advocate; There can be further protrusion. How long after can disc take place, I mean how soon after the operation?
Witness: Normally, it take some time, but it is my experience that I have done more than around 4000 of these cases personally myself and once in two years you do find a patient where in my case the disc protrusion, it occurred in four weeks and the patient started jogging and one fragment parked out in the same area and I re-operated. So it can happen.
Advocate: How soon can it happend? I mean earliest.
Witness: I said my case was four weeks. It can happend earlier, if you allow the patient, say walk up normally, you remove the stitches on tenth day and then you allow the patient to walk up out. It can come Advocate: As soon as the patient starts walking Witness: It can come, but I have very large experience, in my cases if there are only five or six cases like that, which it came within two weeks and I had to go again."
29. We are of the view that Dr. Arora is not right. What Dr. (Col.) Madan did was the laminectomy at L4-5 and not at L3-4 region which was done by Dr. Arora There could not be any case of relapse at L4-5 region of which laminectomy was not done by Dr.l Arora. Re-operation does not mean that you have open a wrong space. It means second surgery to reopen the same space and to remove whatever was left.
30. Manish has stated that after Dr. Arora advised him on 29.7.91 to get himself admitted on 4.8.91, he was not at all seen by Dr. Arora and that Dr. Arora came straight to the operation table on 5.8.91, did not talk to him and did not see the reports and met Manish on 4.8.91. Of course, Dr. Arora is not prepared to admit that the prescription is of 29th July, 199. He says it only reads 29th July. He says on 4th August, 1991 he did mention "myelogram already done" and "post for surgery tomorrow". when we see the record which Dr. Arora has referred to only the words 'myelogram already done' would appear to be in his handwriting. The words 'post for surgery tomorrow' are no there as such. The words are 'for laminectomy tomorrow L3-L5(/) disc". Dr. Arora has not explained as to what does terminology L3-L5 (?) disc would mean and which appears to be in a different handwriting of the person who wrote other portion of the note dated 4.8.91 at 1.00 PM. Dr. Arora was cross-examined with reference to his affidavit where he had stated as under:
"On 5.8.1991 I performed Partial Laminectomy at the Lumber Disc-L-4,L-5, level. After having done so, I observed that the nerve had not sufficiently relaxed and, therefore, I performed full Laminectomy of lumber disc Level 1-3, L-4 at lamina Level 3. Subsequent to the full laminectomy at Lumber Disc L-3, L-4 the nerves were seen to relax. Laminectomy at Lumber level 3 was done to provide benefit of decompression to the patient. Thereafter, the muscles and skin were sutured in layers and operation concluded".
31. Whatever, Dr. Arora stated now in the affidavit, is not mentioned either in the note prepared by DR. Munjal or in the discharge slop of the Hospital or even the medical report dated 28.11.1991 of the Hospital which bears the signature of Dr. Arora himself. There is no dispute that even after the operation since Manish was not getting relief he has been consulting Dr. Arora. There is no denial of the statement of Manish that when he was in the Hospital for a week after operation Dr. Arora visted him only once and that follow up treatments spread over a month. Dr. Arora administered oral drugs and pain killers which he changed quite frequently and also gave intra spinal injection. All this did not give any relief to Manish. Dr. Arora advised him to get X-ray of the spine. He in fact wanted the X-ray to be done by Dr. Khurana at B-45, Defence Colony, New Delhi. Manish says he got the X-ray and shoed the same to Dr. Arora the following and that Dr. Arora after seeing the same was visibly perturbed. It is not denied by Dr. Arora that he did not see the X-ray. The fact of the repot of the X-ray which showed laminectomy of L-3-4 has not been mentioned by Dr. Arora anywhere either in the prescription or any other place. This is how the cross-examination by Dr. Arora of Manish proceeds:
Que. After the operation you got the X-ray, the second X-ray done by Dr. Khurana.
Ans. Yes.
Que. That was done on 1.10.91...when did you show this x-ray to Dr. Arora?
Ans. I got the X-ray done. Immediately when I collected the X-ray, I went to Dr. Arora.
Que. On the same day?
Ans. On the same day.
Que. Until when were you under the treatment of Dr. Arora after the X-ray?
Ans. After the X-ray?... when Dr. J.S.Arora had seen the X-ray he had told me to come after 3-4 days, because after the operation I was regularly visiting him for about a month's time because I did not get relief from the pain. He used to advise different medicines. In fact after the 3rd or 4th time, he had finally given me intera-spinal injuection to get the plain relief.
Que. That was before the operation Ans. No, that was after the operation. I was having the problem of pain again after the operation. After the intra-spinal injunction also I did not get the relief. So he suggested X-Ray. So I went to Dr. Khurana. The X-ray was not given to me the same day I don't remember how may days but when I collected it, I shoed it the same day. I showed it to Dr. J.S Arora. Then he said, 'We will see what we can do' I don't remember the correct wording as such.
Que: Until how long after the X-ray was shown to him, were you having the pain?
Ans. The next time when I went to him, Dr. Arora was not there.
Que: When you shoed the X-ray after that, he prescribed some medicines to you?
Ans. No, he told me to continue the same medicines as the last ones.
Que: All right. You continued the same medicines?
Ans. Yes.
Que: For how many days?
Ans: As far as I recollect, approximately for 5 to 10 days, after which I again went to Dr. J.S. Arora but he was not there, he had gone on holidays.
Que: Now you have said that when you shoed the X-ray to Dr. Arora, he was perturbed and he was shocked. Did you suspect that someting has gone wrong?
Ans: Yes, I had read the X-ray, the written report of the X-ray myself because I had been consulting since a long time. In my file it is already shown that I had shown to Padmini Nursing Home in Madras. Subsequently in Bombay. I consulted Dr. U.K. Sadhoo and Dr. J.S. Arora since I was very curious about the L-4L-5.
Que: Did you suspect something wrong at that time?
Ans: Yes, after I read the X-ray written report.
Que: You suspected something wrong after reading the X-ray Report?
Ans: I was not sure. I suspected what is the problem since L3 L4 was written, for which also I enquired from Dr. J.S.Arora.
Que: What did he say?
Ans: I don't remember the correct wordings, but the expressions and this thing made me feel that there was some problem, something fishy.
Que: Still you did not go to any other doctor immediately.
Ans. No. Dr J.S. Arora told me that I should come after a few days. which I did.
Que: Therefore, you did not go to any other doctor.
Ans: No, until later on when I went to Dr. V.S. Madan.
Que: That was quite long afterwards....Now I put it to you that you have wrongly stated in the affidavit that Dr. Arora was perturbed and shocked. If it was so, you should have gone to somebodyelse.
Ans: Not immediately.
Que; I am putting to you that it is when you said that he was perturbed. Is it right or wrong?
Ans: He was perturbed and shocked
32. Dr. Arora is silent if he saw the X-ray or not. Patterns of cross-examination of Manish by Dr. Arora shows that Dr.Arora admits that X-ray was shown to him. We will therefore, have to take the statement of Manish as correct. That X-ray was shown to Dr. Arora and what his reason was.
33. In the cross-examination of Manish by. Arora, he has put his case in the following words and the answer of Manish to that:
Que: I put it to you that so far as the operation was concerned, Dr. Arora did perform the operation of L4 & L5 and also L3 & 4. He did operate 4 & 5 also L 4 & 5. I am putting it to you. Both the discs between L3 & 4 and L4 & 5 were operated.
Ans: I did not think that was correct. That is the whole reason why I have filed this complaint. I feel that is incorrect.
[There is mistake in the form of the question, but meaning if clear as to what Dr. Arora wanted to convey]
34. The documents on record and the conduct of Dr. Arora after the X-ray dated 1.10.91 was shown to him belies his version.
35. Dr. Arora was asked in his cross-examination as to what was his clinical examination when Manish visted him first time. He said it was canal stenosis due to lumbar 4-5 disc prolapse. Dr. Arora was then questioned about the terminology of canal stenosis used by him and asked what symptoms were there for him to come to that conclusion or if that was his diagnosis. He replied that he would have to look into his papers but said that "otherwise the pain in the back is radiation of the pain in the leg, is normally the symptom". He said he must have mentioned in his outpatient slip. It was put to Dr. Arora by the Commission that outpatient slip must be with him. His reply was that Hospital record will not demonstrate that because after hospitalisation was done he had seen Manish in its outpatient department. He said Hospital record would only show whatever investigation were carried and why he was admitted in the Hospital Dr. Arora was confronted with prescription dated 29th July by which he had advised to get himself admitted in the Hospital on 4.8.91 for his operation on the following day. He was asked did he writ the terminology canal stenosis on the document. The question and answer are as under;
"Adv: Could you please find out `canal stenosis' on this document?
Wit: See, there is very important thing that I have mentioned a sword `intermitant claudication'. Intermitant claudication terms means that when you walk a few steps after that you find that your legs, just do not carry you. It happens in two conditions, either the blood supply to the limbs gets reduced and you cannot carry further or the nerves go under pressure and you cannot carry yourself any further. This is referred to as canal stenosis, in other words.
Adv; Is this in so many words written in the document?
Wit: It is written intermitent claudication, that I have explained to you. It is written sir."
36. In the book Fundamentals of Orthopaedics by John J. Gartland, M.D. photocopy of relevant portion of which was placed on record, spinal stenosis is described as under:
"Spinal stenosis is narrowing of any region or regions of the spinal canal or nerve foramina, usually with pressure on spinal nerves or on those vessels supplying the nerves. Spinal stenosis may have a congenital basis, such as might be encountered in a patient with achondroplasia. It may develop secondary to server degenerative spinal changes or spondylolisthesis. It could develop following spinal surgery, such as laminectomy or spinal fusion, or it may develop following trauma to the spine or in association with such medical disorders as Paget's disease or fluorosis.
Pain may be chiefly in the back but is usually also present in one or both legs and is described as consent or intermittent in character. The pain is often aggravated by exercise, which might also increases sensory disturbances and motor weakness. The patient may have to rest after walking a short distances, because of increasing leg pain. The paid often resembles intermittent claudication. One distinguishing feature, however, is that in spinal stenosis, unlike intermittent claudication, the leg paid is not relived by standing still.
Routine anteroposterior and lateral radiographic views, tomogram of the areas, and transsexual tomography are all helpful in verifying the diagnosis of spinal stenosis. Myelography is an essential study in order to document both the location and extent of the stenosis, particularly if surgical treatment is planned.
If the patient is sufficiently disabled by symptoms produced by spinal stenosis, surgical laminectomy to decompress the spinal nerves and vessels should be considered".
37. Dr. Arora has stated that while operating he took spot decision to intervene at L3-4 region. He was cross-examined. The question and answer are as under:
"Advocate: Dr. Arora, in all the clinical notes, the prescriptions, TO notes, discharge, have you any where referred to your intervention in the area L3-L4?
Witness: I was just looking through Holy Family record which has been presented to me now, there is a mention here L3-L4.
Advocate: Could you please read it out?
Witness: It is written for laminectomy tomorrow between L3-L5 for disc, myelogram already done.
Advocate: If we relate to this original diagnosis where indentation was found in L4-L5 area, does this finding deviate by any standard?
Witness: No. Advocate: Dr. who actually operated the Complainant?
Witness: I did.
Advocate: Did your junior assist you in the operation theatre?
Witness: Yes.
Advocate: Can you name him?
Witness: I can name him from the operation note that he had written, Dr. Munjal.
Advocate: Was any consent taken prior to the operation?
Witness: It is.
Advocate: Who signed it?
Witness: Patient signed it.
Advocate: Dr. Arora, why did it take you about 400 days to inform the patient that you had actually intervened in the L3-L4 and not L4-L5.
Witness: The question is not correct. You are asking me question, it took me 400 days.
Advocate: Please correct me, if I am wrong.
Witness: The question is incorrect. I never informed him. Number (1) it never took me 400 days, secondly I never informed him of the statement that you made.
Advocate: After how many days of receipt of the legal notice did you send your reply?
Bench: It is a matter of record".
38. Dr. Arora was asked in his cross-examination as to when he last saw Manish. His answer was that it was on the day when he asked him to get his X-ray done and after that he said he could not recall as no record had been shown to him to say that he had seen Manish after that. There was no such question put to-Manish in his cross-examination that Dr. Arora did not see him after he showed the X-ray taken by Dr. Khurana. Rather as seen above, the cross-examination of Manish shows that Dr. Arora did see the X-ray.
39. Dr. Arora was then questioned as to why he deviated from L4-5 to L3-4 region. The questions and answers are as under;
"Advocate: of deviation from L5 to L3, L4.
Witness: If you find that the pressure is there and the pressure has not been released, you release the pressure whether you operate above or you operate below and even prior to surgery that is what I was trying to say that I have specifically mentioned that he has got intermittent predication in my first examination in my outpatient department and on the first page of his admission on the 4". I have mentioned query disc at L4-L5 but laminectomy tomorrow between L3 to L5 specifically written this. I don't know how more specific can you be.
Bench: What we see Dr. on page 12 of our file clearly says laminectomy of L4-L5 region on Monday 5.8.91. How do you reconcile?
Witness: On the left there is a record that for laminectomy tomorrow L3 to L5 on the right hand side of the page is a recording of my previous finding which I saw on my examination in the outpatient Department and from there I admitted him for laminectomy L4-L5 that is recorded message Sir, which the Nurse has recorded on the basis of my examination in the outpatient Department and from there i admitted him for laminectomy L4-L5 that is recorded message Sir, which the Nurses has recorded on the basis of my examination in the outpatient Department.
Advocate: Dr Arora, I am showing you the operation report dated 5.8.91.
witness: Yes, I have seen the report.
Advocate: What does it say?
Witness: see it is written by Dr Munjal. It says laminectomy, L4 preoperative diagnosis, L4-5 disc collapse and lubber canal stenosis is the post operative diagnosis. Dr Munjal also mentions laminectomy done at L4-5 and L5-S1, I don't know honestly ass to how he says L4-5 S1 two laminoy were operated L3-4 and L4-5, he somehow has mixed up, this is unfortunate for me that he written L4-5, and L5-S1. LS-S1. LS-S1 is a lower one . I have done the L3-4 and 4-5. He has mentioned L4-5 S1, this found to be normal but lamina plus ligamentum were hypertrophied means they were thicken, therefore suggestive of lumber canal stenosis to relieve the pressure, you cut those.
Advocate: Dr. Arora how many laminectomy have you done till date?
Witness: I don't recall. I have been in practice for 40 years, but I tell you, even today I do about one a week, but in my days when I was much busier than I am now, I use to do anything between 6 to 8 a month.
Advocate: Dr. Arora, I am referring to your affidavit tendered as examination-in-chief, para 4 may I read `upon physical examination of the said Shri Manish Sood and examination of the X-Ray (myelogram) I found that the vertibral column was being obstructed by the lumber disc L4/5, the myelogram had been got done by the Complainant at Madras. We have done the myelogram.
Witness: Right.
Advocate: Could you pleased specify this physical examination? What kind of physical examination did you subject the patient?
Witness: There is an examination which I conducted on the first day when he saw me, that shows the physical finding which I repeated a few minutes ago that his ankle reflectors was absent, his straight leg raising, I think 15 on one side and 40 on the other side, a few minutes ago you confronted me with that. The first one you showed me, I told you that the finding the first page-outpatient i.e. the July 29th one, straight leg raising, the right is 15, left is 40, his ankle reflexes diminished and a myelogram is positive and that intermittent predication. These are the findings on which you base the diagnosis. There are the physical examination.
Advocate: Was there any defect in the big toe?
Witness: It is not mentioned here.
Advocate: I come to para 3, Dr. Arora. Can any other member of your operation team corroborate or testify on the contents which you have stated in para-8?
Witness: The only other member I know of is Dr. Munjal; who was the Registrar at that time and I have no knowledged where he is now and I don't think I can produce any witness. These are very specific things".
40. In fact there has been no attempt by Dr. Arora to produce Dr. Munjal. It is not that he could not be available. In the absence of any surgical nots and on the basis of the records and conduct of Dr. Arora, it is difficult to believe his version. On the basis of available facts and evidence it is reasonable to conclude that Dr. Arora actually operated upon only the intervertebral space between L3 and L4 vertebrae and therein performed laminectomy of L3 vertebra and partial laminectomy of L4 vertebra. He did not operate upon the correct L4-5 intervertebral space-the primary preparatively suspected site of disease in Manish - as suggested by earlier myelogram report and as per his own pre-operative diagnosis and planned laminectomy surgery of L4-5 region. As such, Dr. Arora failed to detect and appropriately deal with the prolapsed disc lying between L4 and L5 vertebrae, the real cause of spinal cord compression and disease symptoms in Manish. On account of this serious lapse, the surgery performed by Dr. Arora did not yield any beneficial results in Manish's condition. It was only when Dr. (Col) Madan subsequently operated upon in the region of L4-L5 space, removed the diseased L4-L5 disc and thereby released the pressure on the spinal cord that Manish got relief from his painful symptoms and recovered. There was also no justification for Dr. Arora to do laminectomy at L3-4 region when there was no evidence beforehand to any disc prolapse there. It appears that once having come to know that he had performed laminectomy of L3-4 and not of L4-5 he started changing his version. There were no clinical signs or investigation findings which called for laminectomy of L3-4 vertebrate. If he had done his job properly Manish would have recovered but he did not. He was in the same condition as he was before the operation. He went on suffering. It was only hen Dr. (Col.) Madan did laminectomy lf L4-5 region that Manish fully recovered.We give no credenfe to another version of Dr. Arora that disc prolapse could have happened again even after the operation. Dr Arora's contention that while he had dealt with the prolapsed disc between L4-5 at the time of surgery by him, there was a subsequent relapse of disc protrusion at this site, does not stand scrutiny. He did not operate at the L4-L5 disc space which was dealt with later by Dr. (Col.) Madan.
41. No one has questioned the qualification and the experience of Dr. Arora. Best brains can commit mistakes.
42. We have anaylsed the evidence and have given our observations at various places. When we keep in our mind the principles in the case of professional negligence particulery the Bokam Test, onus of proff, standard of proof and the evidence on record in the case conclusion is inescapable that Dr. Arora has been professionally negligent. Manish after clinical test went to the operation table for laminectomy L4-5 region but came out with laminectomy of L3-4 region. Principle of res ipsa loquitor applied. Dr. Arora has been unable to offer any reasonable explanation why it is so.Dr. Arora failed in his duty of care which he owned to Manish. He committed breach of that duty with the result that Manish suffered mentally, physically and monetarily. He is entitled to damages both general and special.
43. Manish has filed details of his medical expenses which includes fees paid to the doctors and the medicines bought by him which come to Rs.41,433.60. Apart from this there are always other unforeseen expenses which would include amount spent on conveyance for the patient as well as one attendant when there is a major or moderately major surgery. In the present case we find that authorization for surgery was given by father of Manish at the time of his surgery. Manish has also given on affidavit the loss which he suffered in the salary and other perks which amount to RS.13,78,800/-. He has given details how he arrived at this amount starting from delay in joining his duties and consequential loss on account of promotion, salary and perks. Manish had not been cross-examined regarding his deposition when he claims this amount of over Rs.13.00 lakhs. We are however, of the view that an amount of Rs.1.00 lakh will be enough to compensate Manish as regards loss of salary and other perks. For all this a sum of Rs.1,50,000/- would be reasonable amount towards special damages which include medical expenses, conveyance and loss of salary. Mainsh has claimed Rs.6.00 lakhs as general damages. Again there has not been any cross-examination worth the name on the amount of general damages claimed. undoubtedly, Manish has suffered and suffered badly from the date he was operated upon by Dr. Arora till he recovered. He suffered in pain in body and mental agony. It is not difficult to imagine his plight when he found that instead of having been operated upon for the laminectomy of L4-5 his laminectomy pertained to L3-4 region for which there was no prior diagnosis. We put the figure of general damages at Rs.4.00 lakhs.
44. The complaint is allowed Manish is thus entitled to Rs.5.50 lakhs as damages with interest @12% per annum on the amount of Rs.1.50 lakhs from the date of filing of the complaint i.e. 16.11.92. Both the opposite party No.1 and 2 are jointly and severally liable to pay this amount. Manish is also entitled to cost which we quality at Rs.20,000/-. Out of the damages awarded, Rs.5,00,000/- shall be paid by the third opposite party - New India Assurance Company. In case of default of payment by either of the opposite parties, the whole of the amount awarded shall carry interest @18% per annum after two months from the date of this order till payment.