State Consumer Disputes Redressal Commission
Dr.G.Selvamani, Assured Best Care (Abc ... vs Manimuthu,& 3 Ors,Tiruchirappalli. on 31 October, 2022
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IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, MADURAI.
Present: THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER
F.A.Nos.275/2012 & 469/2012
(F.A.Nos.965/2011 & F.A.No.373/2012 on the file of State Consumer
Disputes Redressal Commission, Chennai.)
(Both the appeals are arising out of one and the same order of the District Commission,
Trichirappalli, made in C.C.No.131/2010, dated 10.08.2011)
MONDAY, THE 31st DAY OF OCTOBER 2022.
F.A.No.275/2012 (Old No.965/2011)
Dr.G. Selvamani,
C/o. M/s. Assured Best Care (ABC Hospital),
No.1, Annamalai Nagar Main Road,
Trichirappalli - 620 017. Appellant/1st opposite party
Vs
1. Marimuthu, S/o. Annamalai,
Kattai Palucanchi, Muthalavanpatti Post,
Manapparai Taluk,
Trichirappalli District. 1st Respondent/Complainant
2. Dr. Uma Shankar,
C/o. M/s. Assured Best Care (ABC Hospital),
No.1, Annamalai Nagar Main Road,
Trichirappalli - 620 017. 2nd Respondent/2nd opposite party
3. Dr. M.S. Aleem,
C/o. M/s. Assured Best Care (ABC Hospital),
No.1, Annamalai Nagar Main Road,
Trichirappalli - 620 017. 3rd Respondent/3rd opposite party
4. M/s. Assured Best Care (ABC Hospital),
Represented by its Managing Director,
Having its office at
No.1, Annamalai Nagar Main Road,
Trichirappalli - 620 017. 4th Respondent/4th opposite party
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Counsel for the Appellant/1st Opposite Party: - M/s. Anand, Abdul & Vinoth Associates,
Advocates.
Counsel for 1st Respondent/Complainant : M/s. S. Ramesh, Advocate.
Counsel for 2nd Respondent/2ndopposite party: Called Absent
Counsel for 3rd Respondent/3rd opposite party: M/s. C. Muralideeran, Advocate.
Counsel for 4th Respondent/4th opposite party: M/s. S. Kameswaran, Advocate.
F.A.No. 469/2012(Old No.373/2012)
M/s. Assured Best Care (ABC Hospital),
Represented by its Managing Director,
Having its office at
No.1, Annamalai Nagar Main Road,
Trichirappalli - 620 017. Appellant/4th opposite party
- Vs -
1. Marimuthu, S/o. Annamalai,
Kattai Palucanchi, Muthalavanpatti Post,
Manapparai Taluk,
Trichirappalli District. 1st Respondent/Complainant
2. Dr.G. Selvamani,
C/o. M/s. Assured Best Care (ABC Hospital),
No.1, Annamalai Nagar Main Road,
Trichirappalli - 620 017. 2nd Respondent /1st opposite party
3. Dr. Uma Shankar,
C/o. M/s. Assured Best Care (ABC Hospital),
No.1, Annamalai Nagar Main Road,
Trichirappalli - 620 017. 3rd Respondent/2nd opposite party
4. Dr. M.S. Aleem,
C/o. M/s. Assured Best Care (ABC Hospital),
No.1, Annamalai Nagar Main Road,
Trichirappalli - 620 017. 4th Respondent/3rd opposite party
Counsel for appellant/4th opposite party: - M/s. S. Kameswaran, Advocate.
Counsel for 1st Respondent/Complainant: - M/s. S. Ramesh, Advocate.
Counsel for Respondents 3 & 4/opposite parties 2 & 3: Served & Called Absent
Counsel for 2nd Respondent/1st opposite party:- M/s. Anand, Abdul & Vinoth, Advocates.
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Both the appeals are coming before us for final hearing on 23.08.2022 and
on hearing the arguments of both sides and on perusing the material records, this
Commission made the following:-
COMMON ORDER
THIRU.N. RAJASEKARAN, PRESIDING JUDICIAL MEMBER.
1. The appeal in F.A.No.275/2012 has been preferred under section 15 r/w section 17 (1) (a) (ii) of the Consumer Protection Act 1986 by the 1st opposite party who suffered by an order dated at the hands of the learned District Commission, Trichirappalli in C.C.No. 131/2010 dated 10.08.2011 directing opposite parties 1 & 4, to pay a sum of Rs.99,000/- towards the medical expenses incurred by the complainant, Rs.2,00,000/- as damages suffered by the complainant and Rs.5000/- as costs to the complainant.
2. Aggrieved over the above order of the District Commission, Trichirappalli made in C.C.No.131/2010, dated 10.08.2011, the 4th opposite party has also preferred an appeal in F.A.No.469/2012 praying for setting aside the same.
3. As both these appeals are arising out of a single order of the District Commission, Trichirappallai, made in C.C.No.131/2010 dated , 10.08.2011 both of the two appeals are jointly disposed of by this common order.
4. For the sake of convenience and brevity, the parties are referred to here as they had ranked and arrayed in the learned District Commission, Trichirappalli.
5. The case of the complainant is briefly as follows;- The complainant is aged at about 29 years and a Diploma Holder in Electrical & Electronics and he also a Graduate in Computer Applications (B.C.A.) and is working as a Senior Technical Officer 4 in Bharathi Airtel Limited at Bangalore. Being a Technical Officer, the major parts of the complainant‟s work is at site. The 1st and 2nd opposite parties are the surgeons and the 3rd opposite party is Dr. M.S. Aleem, a consultant Neurologist in the 4th opposite party‟s hospital. The complainant had an occasional pain in his right leg and as the pain was aggravated during the work, he consulted the 3rd opposite party in the 4th opposite party hospital and he was diagnosed that he had an Oblique Incision and only by way of surgery it can be removed as the feeding vessel from the Anterior Tribial Artirery was ligated. On the basis of advice given by the 3rd opposite party, the complainant was admitted in the 4th opposite party hospital on 30.05.2007. The opposite parties 1 & 2, after conducting the surgery on the right leg of the complainant, discharged him on 13.06.2007 and he was advised to have dressing anywhere at Bangalore. Even after the surgery, as the pain subsisted and was increasing exponentially and unbearable, the complainant was forced to consult St. John‟s Medical Hospital, Bangalore where the complainant had met Dr. Sharma and on investigation of ENMG Tests, he found that "Nerve condition state showed evidence of severe right peritoneal motor and sensory Axonal Neurotheraphy" and the report of St. John‟s Medical Hospital, dated 11.07.2007 would establish that there was an injury to the right peritoneal nerve. The complainant consulted Doctors at Narayana Institute of Neuro Sciences, Bangalore where it was found that after thorough investigation that the Lateral Popital Nerve got injured during the surgery done at M/s. ABC Hospital, Trichy. Dr. Rajesh, K.N. Neuro Consultant and Neuro Surgeon, Dr. Thimmppa Hegde and K.M. Bopanna and Medical Group of Narayana Institute of Neuro Sciences, Bangalore informed that the problem for which 5 the 3rd opposite party advised to go in for a surgery was congenital by birth and there was absolutely no need for operation and even if the operation is conducted it may not yield a desired results. The surgery done by the opposite parties instead of restoring the complainant‟s normal avocation resulted in injury the nearby nerves and therefore the complainant was not in a position to walk properly for almost six months and in spite of physiotherapy there was absolutely no reduction in the pain and it was unabated. The complainant was advised by doctors of Narayana Institute of Neuro Science to go in for another surgery to open the IPSL Sural Nerve for 30 cms and the same was cut into 10 cms of three pieces of each and the Peritoneal Nerve was reconstructed with 3 pieces of IPSL Sural Nerve. The opposite parties have committed gross negligence on two aspects viz., (a) Conducting a surgery for Right Popliteal Mass (Cavernoma) on the advice of the 3rd opposite party which should not have been done as the problem is a congenital problem and it does not require any surgery and (b) the case of the complainant is peculiar that the 3rd opposite party ought not to have recommended for the surgery. Even after the 2nd surgery, normalcy would not be restored and the complainant was advised by the doctors at Bangalore that the chances of full recovery is remote and can accept a maximum 35% of recovery alone and therefore the complainant is even now limping. The complainant gave a notice to the opposite parties on 03.07.2008 claiming a sum of Rs.5,00,000/- by way of compensation to which the 1st opposite party gave a reply on 31.07.2008. It is a case of Rep Ipso Loquitor by the negligence on the part of the opposite parties in cutting the Right Common Peritoneal Nerve during the first surgery which is totally unwarranted. 6 The opposite parties never ever informed the complainant about the danger of amputation and cardiac failure. The 3rd opposite party wrongly diagnosed the problem as vascular one and referred the complainant to the vascular surgeon. The problem is not vascular problem alone and he ought to have referred the complainant to Neuro Surgeon. But, the 3rd opposite party is negligent in not identifying the problem properly and also has wrongly refereed the matter to the vascular surgeon rather than Neuro Surgeon. The opposite parties are equivalent guilty of performing surgery negligently at the time of operation to remove the Popliteal Mass (Cavernoma). There is absolutely no need or necessities for them to touch even leave alone cut or damage the Common Peroneal Nerve. The complainant has no other alternative to come forward with a complaint for damages and compensations. Therefore, the complainant filed a consumer complaint before the District Consumer Commission for a direction to the opposite parties to pay a sum of Rs.10,00,000/- towards damages and compensation for negligence in conducting the surgery and also to reimburse the entire medical expenses amounting to Rs.99,000/-.
6. The 1st opposite party filed a written version by contending inter alia that he is a qualified Cardio Vascular Surgeon with post-graduate degree and vast experience in the field of surgery. The complainant was referred to the 1st opposite party by the 3rd opposite party for vascular opinion. As the complainant had incessant and unbearable pain in his right leg, he was referred to the 1st opposite party. The complainant had already undergone a surgery in the same leg. The 3rd opposite party after the evaluation that a surgery was the only way to reduce the pain referred the complainant 7 to the 1st opposite party for surgical opinion. On examination of the complainant, the 1st opposite party noted the following in the case sheets (1) the complaint of right leg pain and (2) History of injury Right leg for the past 8 years. Doppler study of right leg lower limb venous revealed AV Mal Formation with Cavernoma. MRI Scan study of right leg also revealed that intra muscular vascular malformation involving lateral head of gastrocnemious and soleus muscles, Cavernous Angioma to be considered which confirmation test is. The 1st opposite party submits that the blood investigation and Doppler MRI Scan study revealed that the Artery and vein intertwined together and formed AV Malformation with cavernoma which confirmed the early diagnosis which requires only surgery. If surgery was not performed to the patient that may result in cardiac failure in future or amputation of right leg. If the veins and nerves and arteries would get affected which may result in death. After evaluation and fitness tests, under aseptic precautions the 1st opposite party performed the surgery to the complainant. The 2nd opposite party, being a qualified plastic surgeon assisted the surgery with no decision making. The 1st opposite party made an oblique incision in the Popliteal Fossa (Right leg) and noticed the AV malformation in Gastrocnemius and Soleus, which was removed after ligating the anterior Tibial artery. The common Peroneal Nerve might have been injured while performing the surgery as it was intertwined in the Gastrocnemius and soleus which would be set right at a later point of time by Tendon Transfer method. The 1st opposite party got the informed consent from the complainant on 03.06.2007. Only after getting the consent, surgery was performed. The pros and cons of the surgery were very well explained to the complainant and his 8 relatives before the treatment. Knowing well about the consequences of surgery, the complainant signed the consent. The surgery only could save the patient from Cardiac failure in future or amputation of the right leg. The first opposite party advised the complainant to approach an Ortho Surgeon for corrective measures if any. The Ortho surgeon advised to have Tendon Transfer. The complainant approached the 1st opposite party on 12.07.2007 and informed about the medical advice givens by the St. Johns Hospital, Bangalore. The 1st opposite party is a qualified surgeon. As per the established medical procedure, he performed the surgery with a good faith and bonafide intention to save the patient‟s limb and to save his future life. The 2nd opposite party never discussed anything about the ailment or surgery as he was summoned only on the day of surgery to assist the 1st opposite party and he was nothing to do with the treatment or surgery. There is absolutely no medical negligence on the part of the 1 st opposite party. Therefore, the complaint may be dismissed.
7. The 2nd opposite party filed a version by contending inter alia that he is a qualified doctor with post-graduate degree in surgery and plastic surgeon with vast experience in the field of medicines. The 2nd opposite party assisted the 1st opposite party, Cardio Vascular Surgeon while performing the surgery to the complainant in the 4th opposite party hospital and never treated the patient. The 2nd opposite party was nothing to do with the treatment or surgery done to the complainant and thus he has in no way negligent in assisting the 1st opposite party. The 1st opposite party alone performed the surgery as he is highly qualified cardiac vascular surgeon.
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8. The opposite parties 3 and 4 have filed a joint written version by contending inter alia that the complainant came to the 4th opposite party hospital and was referred to the 3rd opposite party and on examination of the complainant, he found that the problem is not concerned with the nerves and it related to malformation of artery in his right leg below the knee. Due to this congenital problem arterial flow will be into the veins and it will cause a lesion. The damage will gradually increase because of the feeding vessels and if left unattended it will result in amputation. In certain cases, it may also promote cardiac failure. Sensing and intensity of the problem and its magnitude the complainant was referred to the 1st opposite party who is a cardiac vascular surgeon by the 3rd opposite party. The magnitude of the lesion was carefully studied based on the Doppler scan and MRI Scan Report. Equal chances of cardiac failure resulted in amputation was also discussed. So, as a damage control measure the surgery was advised by the 1st opposite party. The complainant was aware that the surgery was intended to arrest further damage and deterioration that could potentially result in amputation of right leg if the Covernomatous lesion is not exercised. As a prudent surgeon, the 1st opposite party advised surgery only as a damage control measure. The 3rd opposite party noticed the problem as pertaining to the vascular region and so only vascular surgeon is the best person to advise the complainant. That is why, the complainant was referred to Vascular Surgeon and his ruling out of neurological problem and identifying it as a vascular problem is correct in medical theory and practice. So, the impleading of 3rd opposite party is quite unwarranted. Vascular surgeon, Dr. Selvamani after a thorough examination and taking into account 10 of the previous surgery in the lower thigh and there being no result, decided to do the surgery. The complications were involved in the surgery because of the intricacy of the problem and magnitude of the lesion that was apparent as per MRI Scan and Doppler Scan reports. When a surgery is undertaken, it is aimed at minimizing the problem first and eradicating it. It is an attempt against the nature. It is wrong to say in such congenital problems no surgery is advised as it cannot be corrected by a surgery. As a prudent surgeon, the 1st opposite party decided to do the surgery. The complainant has had enough discussions and learnt the pros and cons of the surgery and then only exercised his discretion and gave consent. The aim was alleviation of pain but the condition of his leg was very worst that it had to be saved against the amputation. In due course, if left unattended, it would have resulted in gangrene and would have warranted amputation. So, the 3rd and 4th opposite parties are in no way guilty of medical negligence. The localized congenital anteriovenous fistula radical, surgical excision provides an excellent opportunity for permanent cure. So, the attempt was only aimed at alleviating the pain in addition to the damage control. This is the recommended treatment. The resection of tissue may include skin, muscle and even bone. So, a complaint of damage to nerve is not attributable to medical negligence. The diagnosis for further investigation and the course of treatment by way of surgery are all based on prescribed texts and medical literatures. The 3rd and 4th opposite parties are in no way responsible for the position of the complainant pleaded in the complaint. The problem is pertaining to vascular region and not a nervous disorder and so he referred the complainant to vascular surgeon. The foot drop is medically 11 manageable and will only be a temporary problem. Best results could be achieved if tendon transfers are done. The complaint filed by the complainant is only an attempt to make an unjust enrichment. Therefore, the complaint may be dismissed.
9. After taking into account of the evidences adduced by both parties, the learned District Commission had held that not informing the damages caused to the Common Peroneal Nerve of the complainant by the opposite parties during the surgery amounts to deficiency in service. Discharging the complainant without recording the damages in the case sheets is also amounts to deficiency in service. No negligence on the part of the 2nd and 3rd opposite parties. The 1st and 4th opposite parties are responsible for the negligence and the complainant is entitled to get compensation from them. Accordingly, the opposite parties 1 and 4 were directed to return the amount of Rs.99,000/- paid by the complainant as medical expenses to the complainant and also to pay a sum of Rs.2,00,000/- as compensation and another sum of Rs.5000/- as costs. The complaint was dismissed as against the opposite parties 2 & 3 without costs.
10. Being aggrieved against that order passed by the District Commission, the 1st and 4th opposite parties have challenged it by filing a separate two appeals. The appeal filed by the 1st opposite party was presented before the Principal Bench in Chennai and taken on file in F.A.No.965/2011 and the same was transmitted to this Circuit Bench at the time of bifurcation and its constitution, the appeal was renumbered as F.A.No.275/2012. Another appeal filed by the 4th opposite party was taken on file before the Principal Bench at Chennai in F.A.No.373/2012 and the same was transmitted to this Circuit Bench and was renumbered as F.A.No.469/2012. 12
11. F.A.No.275/2012:- The first opposite party filed his appeal in F.A.No.275/2012 by stating in the memorandum of grounds of appeal by stating that the complainant was sent by the 3rd opposite party, Dr. M.S. Aleem, Consultant, Neurologist and the Epileptologist attached to the 4th opposite party hospital. Blood investigation and other routine investigations were done. Doppler study of the right lower limb revealed AV Malformation with Cacernoma, AVM is an abnormal connection between veins and arteries usually congenital. This pathology is widely known because of its occurrence in the central nervous system but can appear in any location. As per medical literature, symptoms of AVM vary according to the location of malformation. Roughly 88% of people affected with AVM are asymptomatic. Often the Malformation is discovered during treatment of an unrelated disorder. MRI was done on the right leg which revealed intramuscular, vascular Malformation involving lateral head of the gastrocnemius and soleus muscular. This was suggestive of Cavernous Aangioma to be considered. The procedure of excision of cavernomotous lesion (R) Leg was done on 31.05.2007. After evaluation and fitness test, ulcer aseptic precautions the appellant/1 st opposite party performed the surgery. The 2nd opposite party who is a qualified plastic surgeon assisted in the surgery. The procedure was done under Epidural Anesthesia; the patient was in the Left Lateral position. Oblique incision was made in the (R) popliteal fossa extended into the Right leg. There was extensive cavernomatous containing dilated and tortuous veins in the lateral lood of gastronomies and soleus. There was a feeding vessel from the anterior tibial artery to the lesion which was legated. Cavernomatous lesions gastronomies and soleus were exercised completely 13 along with part of the muscle. Homeostasis was obtained and the wound was closed in layers with a drain. Necessary drugs were administered. The patient was discharged on 13.06.2007. He came back after one week and informed that he had difficulty in walking. The 1st opposite party examined him and advised to approach the Orthopedic Surgeon. The Orthopedic Surgeon, Dr. Kalyanasundaram advised him to undergo Tendon Transfer Surgery. After the said advice, the patient never came back to the 1st opposite party/appellant herein.
12. The Forum below has made the 1st opposite party liable for negligence only on the ground of allegedly causing damage to the Peroneal Nerves which is not correct due to the fact that during the surgery the Peroneal nerve was intertwined with the Gastrocenemious and soleus which is common accepted medical complications which has been overlooked by the District Commission. The Forum below also failed to appreciate the fact that the complainant should have been done Tendon Transfer Treatment instead of nerve repair. The medical opinion may differ with regard to the course of action taken by a doctor treating the patient but as long as a doctor acts in a manner which is acceptable to the Medical Profession, the court finds that he has attended on a patient with due care, skill and diligence and if the patient still does not survive or suffers permanent ailment it would be difficult to hold the doctor to be guilty of negligence. The 1st opposite party at no point of juncture failed in discharging his medical duties and responsibilities towards the patient. The diagnosis, treatment and post operative care of the patient has been conducted as per the established medical norms and procedures and there has been no negligence, carelessness or callous 14 attitude on his part. Therefore, the order of the District Commission may be set aside and the appeal may be allowed.
13. F.A.No.469/2012:- The 4th opposite party filed an appeal by stating that the District Commission after careful consideration, the 4th opposite party had provided a qualified plastic surgeon (2nd opposite party) to be present during the operation to assist the 1st opposite party. The District Commission erred in holding that the surgery should have been done by the plastic surgeon without any basis and contrary to the pleadings of the complainant. The District Commission failed to note that the complainant underwent subsequent surgery which was ultimate cause for the disablement of the complainant and consequently the 4th opposite party cannot be held liable. The District Commission failed to consider that the complainant has not proved negligence on the part of the 4th opposite party by letting in any expert evidence as required by law. The District Commission failed to apply any of the texts laid down by the Courts before arriving at a conclusion of negligence or deficiency in service on the part of the 4th opposite party and hence the appeal may be allowed by setting aside the order of the District Commission.
14. No additional evidences were adduced by both parties before this Commission in these two appeals.
15. The points for consideration are „-
(1) Whether there is any negligence or deficiency in service on the part of the opposite parties 1 and 4 as alleged in the complaint? 15
(2) Whether the order passed by the District Commission is sustainable under law or not?
16. Points No.1 & 2:- The complainant had occasionally pain in his right leg and on getting aggravated during walking, he consulted the 3rd opposite party who is a Consultant Neurologist who advised that the complainant had an oblique incision and only by way of surgery it can be removed as the feeding vessel from the Anterior Trivial Artery was legated. The complainant was admitted in the 4th opposite party hospital on 30.05.2007. The opposite parties 1 and 2 conducted surgery on the right leg and discharged him on 13.06.2007. After surgery, the pain was unbearable than before the surgery. Hence, the complainant consulted Dr. Sharma at Bangalore and on investigation it was found that nerve condition state showed evidence of severe right peroneal motor and sensory Axonal Neuropathy. The Popilatal Nerve got injured during the surgery and the problem of complainant was informed as congenital and not to go for operation and even if the operation is conducted it may not yield desired result.
17. The complainant filed a complaint against the opposite parties 1 to 4 before the District Commission and the District Commission after enquiry passed the impugned order directing the opposite parties 1 & 4 to refund the medical expenses of Rs.99,000/- which was collected from the complainant and also to pay compensation of Rs.2,00,000/- with cost of Rs.5000/- and dismissed the complaint as against the opposite parties 2 & 3.
18. It is the admitted case of the complainant as well as the 1st opposite party that the complainant had pain in his right leg which is congenital one. When the 16 complainant approached the 1st opposite party he was advised for surgery. To establish the liability against the opposite parties, the complainant has to prove (1) That there is a usual and normal practice, (2) the opposite parties have not adopted it and (3) No professional man of ordinary skill would have taken and had he been acting with ordinary care. The complainant was under legal obligation to prove the negligence on the part of the opposite parties in performing the surgery and also he was required to prove that subsequent ailment which he suffered only due to the improper or unwarranted performance of surgery by the opposite parties. If the surgery had been successful he would not have suffered any kind of ailment. The nexus of two factors are the issue a doctor for his negligence and sufferings of ailments by the patient after the surgery is one thing and it may due to myriad reasons known in medical Jurisprudence. Whereas sufferings and any ailments as a result of improper or unwanted performance of surgery and that too with a decree of negligence on the part of doctor is another thing. To prove the case of negligence of a doctor, the medical evidence of experts in the field is required. Simply prove the complaint is not sufficient. The complainant examined himself as P.W.1 by filing his proof affidavit and he has marked Ex A1 to A23 before the District Commission. He has not produced any expert evidence or medical texts in support of his case.
19. The first contention raised by the complainant in his complaint is that the first surgery performed by the first opposite party is unwarranted since the problem of pain in his right leg is congenital and hence it could not be cured. He raised the above plea only on the basis of the opinion given by the doctor in the said Narayana Institute 17 of Neuro Sciences, Bangalore and no such opinion was produced by the complainant. The complainant also not produced any medical texts supporting his case. Whereas the opposite parties produced the medical texts of Congenital Vascular Malformation General Considerations, Byung-Boong Lee and Leonel Villavicencio in which it has been explained that the Congenital Malformation have been recognized over 1000 years in the medical, historical and functional literatures and defined the term Congenital Vascular Malformation (CBM) is used to describe malformed vessels resulting from arrested developed during various stages of embryogenesis. It is the outcome of the congenital defect in the vascular system and is therefore present at birth, although it is not always clearly identifiable immediately. CVMs may involve one or all three circulatory systems, arterial venous and lymphatic - either as a predominant form (e.g. venous malformation) or as a mixed condition (e.g. hemolymphatic malformation). They continue to grow regardless of type. These CVMs are generally distinctive at birth as inborn errors, and they grow steadily in parallel with the child‟s systemic growth. CVMs never disappear or regress". Therefore, the above medical texts prove that his problem of leg pain is congenital but only by birth. For treatment, in the medical texts explained as it is a strategy should focus on the primary malformation first, followed by a treatment of secondary disorders associated with the vascular, musculoskeletal, and integumentary system. Corrections of various hemodynamic derangements secondary to the primary lesion should be given priority. This can involve either reconstructive surgery (e.g., venous bypass, free lymph node transplant surgery) or ablative or excisional surgery (e.g. removal of the marginal vein, removal of aneurysms). 18 Corrective surgery for the sequelae of secondary hemodynamic consequences may follow (e.g. orthopedic surgery, Achilles tendon lengthening, plastic and reconstructive surgery to correct cosmetic facial or limb deformities). When severe CVMs result in a nonfunctional limb with significant growth discrepancy, early amputation should be considered; this allows early rehabilitation after the child has been fitted with a proper prosthesis. The types of treatment given in the above medical texts is Surgical Excision remains only "cure‟ for certain vascular malformations, this generally requires extensive surgery (radical resection) with high morbidity (e.g. excessive blood loss) to remove the entire lesion. Incomplete resection of the lesion nidus, often results in a high risk of recurrence. Therefore, ideal candidates for surgical excision are limited. Because CVMs rarely become life or limb threatening, the majority do not require radical resection.
20. The complainant alleged that the opposite parties never informed the complainant about the pros and cons of the treatment but he admits that he had put his signature in the consent for surgery. A Xerox copy of the written consent was marked as Ex B1 on the side of the opposite parties in which it was mentioned about the surgery as "disconnection feeding of vessels on the right leg". The complainant admits that there was a problem of swelling in his right leg below the knee for 8 years. He approached the opposite parties when he feels discomfort and pain in right leg and his relatives also accompanied him. The opposite parties would contend that the surgery was performed after correspondence of the risk and the need of surgery to the complainant and after knowing the risk the complainant gave his consent for surgery by putting his signature in Ex B1. When the complainant admits his signature found in Ex 19 B1, he was also having a problem of leg pain for prolonged period he would have given his consent only after knowing the risk and necessity of the surgery. Therefore, the allegation raised by the complainant is not sustainable under law. Since the problem is congenital one it could not be cured without surgery as explained in the medical texts. The complainant failed to produce any expert evidence or medical texts to prove that the surgery was unwarranted.
21. The complainant raised another contention alleging that during the surgery the peroneal nerve was damaged and the problem of the complainant got worsened and the pain was unbearable and hence the complainant was forced to go for a second surgery. For the above allegations, the opposite parties 1 & 4 have explained in their written version by stating that an attempt was only aimed alleviating the pain in addition to the damage control. It is the recommended treatment to achieve acceptable, functional results only by interruption and/or remobilization of all vessels feeding the affected areas. So, the complaint of damage to the nerve is not attributable to medical negligence. The opposite parties also enclosed medical texts supporting their explanation along with Ex A16 reply notice. In the medical texts, it was explained that the risk in surgery and also aggravating of the complications. In localized congenital anteriovenous fistula radical surgical excision provides an excellent opportunity for permanent cure. This can be accomplished when the anteriovenous fistulas are sharply circumscribed or in those rare instances where an isolated malformation communicates with a single arterial vessel in haemangiomas, the whole lesion should be removed en- bloc. The skin should be closed without undue tension. The collaboration of the 20 competent plastic surgeon should be signed. The great advantages in plastic and reconstructive surgery have enabled as to resect large lesions which previously were considered inoperable. Major amputation or disarticulation of an extremity is the only alternative in those cases of extensive vascular malformations with multiple sites of arteriovenous fistulae in which the magnitude of the anomalies leads to deterioration of extremity and cardiovascular system. In the medical texts Chapter 69 produced by the opposite parties the Congenital Vascular Malformations; Endovascular and Surgical Treatment, (by Gleon R. Jacobowitz.). It has been stated that the management of vascular malformations has been challenging problem for many years. Surgical treatment alone has been inadequate or even disastrous, often leading to extensive damage to adjacent structures, high recurrence rates, or major amputation. The complications it was mentioned that nerve damage also occurred only from nerve extraneously of selesnopathis particularly eternal into para vascular nerve tissue. Most nerve control is treatment with supportive care and pain control serving as adequate treatment nerve after proper evaluation of vascular malformations. Pre-operative evaluation must include extensive imaging, which can determine the extent of involvement of adjacent tissue and organs and angiographic identification of bleeding vessels. Vascular malformations can best be treated with the combined expertise of vascular surgeons, plastic surgeons, dermatologists, interventional radiologist and others. Surgery should involve the ligations of all feeding vessels and the malformation in its entirety. Surgical treatment is more common with AVMs of the extremities. Outcome have been mixed even with combined endovascular and surgical therapy. The 21 most dreaded complication of surgical treatment of vascular malformation is uncontrollable hemorrhage. This may occur with both AVMs and venous malformations. During the surgery the common peroneal nerve have been injured while performing the surgery as it was interconnected with the gastrocenemious and soleus which would be set right on later point of time by orthotic surgery and explained that is an accepted complications and also it may be set right in the later point of time and advised the complainant for Tendon Fandom method. But, the complainant did not accept the opinion and he approached the doctors at Bangalore and then performed another surgery. Now, the opposite party claimed that the surgery performed at Bangalore would aggravate the complications of the complainant and they cannot be made for subsequent complications. It is only due an expected and accepted complication described in the texts. For every surgical procedure there shall be minimum risk of complications. Merely because of complications had ensured it does not mean that the opposite parties are quality of negligence. Medical practitioners are not expected to achieve success in every case that they treated. The duty of the doctor, like that of the other professional men is to exercise a reasonable skill and care. Merely because of a doctor chooses one course of action in preference to another one available he would not be liable if the course of action choosing by him was acceptable to the medical profession. The medical professional is often called upon to adopt a procedure which involves higher ailments of risk to which he naturally believes as competent character chances of success for the patients rather than the procedure involved lesser risk to higher chances of failure. Just because of professional looking to aggravate the illness 22 as taken higher ailment risk to redeem the patient out of his sufferings which did not yield the desired results does not amount to negligence as it was held by the Hon‟ble Supreme Court of India, reported in MANU/SC/0098/2010 in the cause of Kusum Sharma and Ors. - Vs - Batra Hospital and Medical Research Centre and Ors. Therefore, the contention raised by the complainant is not sustainable.
22. To another contention, the defence raised by the counsel for the 3rd opposite party is that it is not possible for Vascular Surgeon to go for vascular surgery without the aid of the Neuro Surgeon. The above contention is not raised under any proof when the surgery should be performed by the Neuro Surgeon. Admittedly, the 3 rd opposite party advised the complainant to approach the 1st opposite party, Dr.G. Selvamani, M.B.B.S., M.S., & M.Ch. Cardio Vascular Surgeon who is a qualified Consultant in Neurology. The complainant has not produced any authority to disqualify the 1st opposite party and the 3rd opposite party who advised to perform surgery. In the reply notice sent by the 1st opposite party under Ex A16, it has been explained that under what circumstances the complications of transmitted lateral Popilatal Nerve was happened and also advised for rectifying foot drop by Tendon Transfer Surgery and also recommended for vascular surgery. In the absence of any authority, we cannot find fault with the 1st opposite party in performing the surgery who is competent person to perform the same.
23. Even though the counsel for the 1st respondent/complainant mentioned the following citations in support of his contention, which were not produced before this Commission for perusal.
23
1. 2010 (2) S.C.C. (Civil) 460
2. 2011 (3) C.T.C. 699
3. 1998 (3) C.P.J. 436
4. 1998 (1) C.P.J. 16 (NC)
5. 2000 (1) C.P.J. 288
6. 1998 (3) C.P.R. 405
7. A.I.R. 2004. S.C. 5088 Whereas, the counsel for the appellants relied on the following citations which are squarely applicable to the facts of the present appeals and they are reported as stated below;-
1) MANU S.C./0098/2010
2) MANU /RB/0032/2017
3) MANU/SC/0457/2005
4) MANU/CF/0477/2008
24. In the decision reported in MANU S.C./0098/2010, the Hon‟ble Supreme Court of India, in Civil Appeal No.1385 of 2001, in the case of Kusum Sharma and Ors - Vs -
Batra Hospital and Medical Research Centre and Ors, has laid down the principle to decide the case of medical negligence by holding that as long as the doctors have performed their duty and exercised an ordinary decree of professional skill and competence they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind". Further, in the decision reported in MANU SC 0457/2005 in the case of Jacob Mathew - Vs - State 24 of Punjab and others, the Hon‟ble Apex Court has also laid down certain guidelines which should cover the prosecution of doctors for offence of criminal negligence and mentioned that the professionals need for care and caution in the interest of society for the service which the medical profession renders the human being and hence there is a need for protecting the doctors from unjust persecution.
25. In the decision reported in MANU/CF/0477/2008, in the case of Kamla Pal Pandey - Vs - P.C. Dwivedi and Ors, the Hon‟ble National Commission has held that "the onus of proof is on the complainant. It was for the complainant to prove as to what the doctor did which he should not have done, or what he should have done and he did not do? There is no expert evidence in support of the contentions advanced by the complainant". The complainant is completely failed to prove his case of medical negligence against the opposite partiers/appellants/doctors whereas the opposite parties/doctors has not only relied on his evidence as professionals, he has also packed it up by the medical literature, in support of the line of the treatment adopted by them.
26. The learned District Commission held only on the ground of having not mentioned the cause of the damage to the Lateral Popilatal Nerve in the case sheet and as the complications arose during the surgery the 1st and 4th opposite parties have committed negligence in performing the surgery. The learned District Commission has not considered the well settled proposition of law decided by the Hon‟ble Supreme Court of India as well as the Hon‟ble National Commission while deciding the question of guilty of medical negligence against the medical professionals. The well settled principles and guidelines enumerated by the Hon‟ble Supreme Court of India and the 25 Hon‟ble National Commission were produced by the opposite parties. The complainant raised only the allegations against the opposite parties but has not produced any supporting expert evidence or citations. Mere raising the allegations are not sufficient to prove those allegations rose against the opposite parties in the complaint. Admittedly, the complainant is having problem by birth and he was suffering with leg pain swelling aggravated or unbearable and then only he approached the 3rd opposite party for treatment. As a qualified Neuro-Physician, the 3rd opposite party referred the complainant to the 1st opposite party Cardio Vascular Surgeon for treatment. After the examination and investigation and Doppler Study the right leg MRI Scans, Lab report, the 1st opposite party diagnosed the problem of AV Malformation of right leg and decided the procedure excisional Cavernomatous lesions gastronomies and soleus by performing surgery. After the surgery, the 1st opposite party advised the complainant for another surgery for rectification of damages caused to the Lateral Popilatal Nerve which is known complications during the surgery. Against the advice the complainant approached the hospital at Bangalore and they performed another surgery. The complainant filed the complaint without supporting any medical texts or expert evidence. It is not a case of Res Ipsa Loquitur. The onus is on the complainant to prove the allegations made against the opposite parties in his complaint. When the complainant failed to discharge the burden of proof, he is not entitled to claim any benefit from the opposite parties. Whereas, the learned District Commission without considering all these aspects and the settled principles of law, passed the order and therefore it is not sustainable under law and the point No.2 is answered accordingly. 26
27. In the result, both the appeals, in F.A.No.275/2012 filed by the 1st opposite party and F.A.No.496/2012 filed by the 4th opposite party are allowed by setting aside the order of the District Commission, Trichirappalli made in C.C.No.131/2010, dated 10.08.2011 and the complaint is dismissed without costs. There shall be no order as to costs in both the appeals.
Sd/-xxxxxxxxx N. RAJASEKAR, PRESIDING JUDICIAL MEMBER.
Index: Yes/No TCM/SCDRC/Madurai Bench /Orders/Oct/2022