National Consumer Disputes Redressal
Charan Singh vs Healing Touch Hospital And Ors. on 24 April, 2003
Equivalent citations: III(2003)CPJ62(NC)
ORDER
B.K. Taimni, Member
1. This complaint has been filed by the complainant Shri Charan Singh alleging negligence on the part of the opposite parties Healing Touch Hospital and their doctors.
2. The facts of the case emanating from the complaint are that the complainant went to the O.P. 1, Hospital with a complaint of acute stomach ache and burning sensation in urine for the last one year where he was seen by the 2nd O.P. Dr. Juneja, who after examination and tests advised the complainant to undergo surgery for removal of stone from urethra. 2nd opposite party admitted him for the surgery on 12.1.1993 and he was operated upon by the 3rd O.P., Dr. Sunil Sharma, after the 4th O.P., Dr. Seth had administered spinal anaesthesia. According to the complainant, surgery was not successful, 4th O.P, was negligent in administering spinal anaesthesia, which resulted in his paralysis of right side of the body as also he started passing blood in urine, in spite of that, the complainant was discharged. When things did not improve, the complainant again went to see the 2nd O.P., wherein a urinary tube was put and numbers of laboratory tests were done. On 9.2.1993, 2nd O.P. advised the complainant to undergo another surgery and was asked to call his relatives. As a sequel to this advice, he called his friend Tikam Singh, his cousin Rajender Singh and another relative Jaspal. It is alleged that before second surgery, consent was obtained when he had already been administered anaesthesia. Surgery was declared successful by the O.Ps. 1-3 but the complainant found that his right side of the body was not working and it had no sensation. Complainant was discharged on 18.2.1993. He was also given discharge slip. Complainant complained to the O.Ps. that his right side except his right hand was not working, in spite of this he was discharged and asked to use crutches for two months. On approaching the 2nd O.P. in the fourth week of February, 1993, he misbehaved and did not prescribe any curative prescription. Thereafter he went to Orthonova Hospital. It is only during the tests carried out at the Medical Diagnostic Centre, Hauz Khas, that the Doctor after seeing the Discharge Slip told him that his right kidney has been removed during the second operation of which he was not aware of till then, as he had never been told of the fact by any of the O.Ps. Complainant remained admitted in the Orthonova Hospital from 31.5.1993 where he was again operated upon on 1.6.1993 but to no effect. It is alleged that the complainant has become disabled person with paralysis of right side of the body and he is now permanently on crutches. As a result of this he had lost job where he was earning Rs. 3,000/-p.m. He is only 33 years old and had lot of prospects. This all is on account of negligence on the part of O.Ps. 1 to 4 and prayed for award of Rs. 34 lakhs in following manner :
3. The claim was subsequently increased to Rs. 48,44,082/- on the affidavit filed by way of evidence.
4. A common written version was filed by O.Ps. 1 and 2 and separately by 3rd and 4th O.Ps. In the written version filed by O.Ps. common stand is that the complainant's wife was operated upon for removal of kidney in February, 1992 in the same Hospital by the same Urologist, Dr. Vikram Sharma which was a successful operation. It is with this satisfaction in mind, that when the complainant himself came in January, 1993 with complaint of kidney stone, diagnosed by another doctor to whom the complainant had gone prior to coming to the O.P. 1, Hospital, upon examination of X-ray brought by the complainant and being satisfied that it was a case of stone in left kidney at pelvi-ureteric junction, complainant was referred to 3rd O.P., Dr. Sharma who is Urologist of standing. After examining the patient and carrying out necessary investigations, the complainant was operated upon by the 3rd O.P, using "percutaneous nephrolithotomy" (PCNL). Before doing the surgery on 12.1.1993 the complainant was administered spinal anaesthesia as it is known to have far less complications. The same approach had also been adopted in the case of surgery to the wife of complainant in 1992. During surgery solitary stone in left upper ureter was removed through the left kidney. On the evening of 13.1.1993 during examination, it was found that there was weakness and numbness on the lower right abdomen and right leg. He was given medicines and examined by the O.P. 4. Not to spare any effort; the complainant was also got examined by Dr. P.K. Sethi, Head of Department of Neurology, Sir Ganga Ram Hospital on 1.8.1993 who advised continuation of the treatment already been given. It was diagnosed to be a case of Radiculitis, a known but infrequent complication of spinal anaesthesia. The complainant was also given blood transfusion from time to time, he showed improvement and passing of blood through urine declined and completely stopped on 23.1.1993.
5. The complainant was discharged on 25.1.1993 with an advise to come after a week. On 1.2.1993, complainant returned to the Hospital complaining of "haema turia" (passing blood with urine). Immediately treatment was started on 2.2.1993 cystoscopy (a method to ascertain whether the blood is oozing from the kidney or from the urinary bladder) and 'stenting' (a procedure to allow free flow of urine from the bladder) was done. The complainant continued to pass blood with urine and his haemoglobin was falling. He was given 5 units of blood between 1 to 8.2.1993. On 9.2.1993 with a view to save the life of the complainant, it was decided by the 3rd O.P. to explore the affected kidney to find out the source of bleeding and to legate the bleeding, if possible, failing . which to perform "nephrectomy" - removal of affected kidney; procedure and possible implications were explained to the complainant and his consent obtained. On opening the complainant parirenal haemotoma was noticed. Oozing blood was noticed. In the best interest of the patient his left kidney was removed. After this his condition improved, haemoglobin also improved. Complainant was discharged on 18.2.1993. The complainant came to the O.P. Hospital again only in June, 1993 wherein he informed that he had been to AIIMS, Guru Tegh Bahadur Hospital, Orthonpva Hospital but has not said a word about it in the complaint nor produced any document to show as to what transpired there. Even then in June, 1993 the complainant was examined. He complained of watering discharge from the place of surgical incision. Biopsy was carried out and it was found out to be a case of Tuberculosis. These reports are with the complainant but not produced by him. Complainant was put on anti tubercular treatment by the 2nd opposite party as a result of which wound completely healed. Complainant has been threatening the opposite parties of lodging a police report which was also carried out by the complainant. It is relevant to mention that during the first visit of the Hospital where the total bill came out to Rs. 32,509/-, payment of Rs. 10,000/- only has been made. No payments have been made by the complainant for the bills raised for the subsequent treatments/stay in the hospital. The complainant has been going to several Hospitals at different times where certain procedures were carried out. No material is on record to show as to what happened there. Present status of the complainant is on account of his own doing. No negligence can be alleged against the opposite parties as they performed the duties professionally and as per expected medical practice.
6. Rejoinders were filed with reference to common written versions filed by opposite party Nos. 1 and 2 and separately by opposite party No. 3 and opposite party No. 4.
7. In the rejoinder a new case is sought to be built by the complainant. It is now stated that before carrying surgery for removal of kidney stone, following tests must be carried out but not done.
(i) Culture Test; (ii) Ultra-sound test; (iii) Intra-venes Pylography (IVP); (iv) Blood Urea; Blood sugar and serum etc.; (v) Kidney function test; (vi) X-Rays; (vii) E.S.R. (Erothrocytic Sedamentation Rate);
(viii) Total RBC, Haemoglobin, W.B.C., Differential counts (Monocytes, most importantly Eosinophil-rate) and various other necessary tests.
This is the first negligence.
8. Second negligence is that before carrying out surgical procedure, oral medicines need to be given for removal of stone.
9. Third instance of negligence is that while his haemoglobin was low and other conditions like B.P./Pulse rate etc. were not normal, yet, surgery was carried out.
10. Fourth instance of negligence is that the first surgery should have been done under general anaesthesia and not under spinal anaesthesia; when spinal anaesthesia was to be administered, it should have been done when the patient is a Trendelenburg' position (patient made to sit in a position that his forehead stretching toward as much as possible towards the knee joints). This procedure was not followed. It is the case of the complainant that if spinal anaesthesia is not administered at appropriate place there is strong possibility of it causing side effects which include paralytic attack, variation in blood pressure, local pains etc. His numbness after the first surgery was on account of negligence of opposite party. Other material in the rejoinder is the same as was given out in the complaint. Rebutting all the details given by the opposite parties in their written version that doctors were not attending on him properly as there is no record of day to day report of the patient and the Doctors attending on him. Three affidavits, one of the complainant and two of relatives/friends namely, Tokan Singh and Rajender Singh were filed by way of evidence from the complainant's side. From the opposite party side, three affidavits, one on behalf of opposite party Nos. 1 and 2 and one each from opposite party No. 3 and opposite party No. 4 and an expert witness, Dr. V.N. Vohra, Senior Consultant, Anaestheology, Sir Ganga Ram Hospital on behalf of opposite parties were filed by way of evidence.
11. A certificate of disability issued by Medical Superintendent of Guru Tegh Bahadur Hospital of Govt. of NCT, Delhi was brought on record in September, 2001 according to which complainant's disability was stated to be 99%. On an application made by opposite party Nos. 1 and 2, we passed the following order on 6.8.2002 :
"This is an application filed on behalf of the O.P. Nos. 1 and 2 seeking second opinion of the experts. The names mentioned in the application are not acceptable to the Counsel for the complainant and he suggests that it should be referred to a panel of doctors appointed by the Medical Superintendent of the R.M.L. Hospital. Mr. Virmani, learned Counsel for the O.P. Nos. 1 and 2 has no objection to this. Accordingly, this application is allowed with the direction that a reference of the case be made to the panel of senior doctors comprising "Neuro-Surgeon", a Neuro-Physician and an Orthopaedic expert. The scope of the reference to the panel will be only to ascertain the disability, and if so, the percentage thereof suffered by the complainant. The papers be sent to the Medical Superintendent of R.M.L. Hospital to enable him to constitute the Board as mentioned above. Counsel for the parties will have the opportunity to assist the Board. The parties shall appear before the Board/Medical Superintendent, R.M.L. Hospital on 27.8.2002 at 2.30 p.m. and the report should be made available to us by 27.9.2002.
To be listed for directions and further proceedings on 8.10.2002."
A three member Board was constituted. The report of the Board is as follows :
"This is to certify that Shri Charan Singh son of Shri Jagmal Singh, resident of 71, Lado Sarai, Near Community Hall, Old M.B. Road, New Delhi has been examined by a panel of doctors appointed by the Medical Superintendent, Dr. R.M.L. Hospital.
He is a case of Monoparesis Right Lower Limb. His physical disability is 25% (twenty five percent) and permanent."
12. The report has been challenged by the complainant on two grounds - one, that he got another, report from Lok Nayak Hospital in January, 2003 according to which disability is 50% and secondly that report of the Medical Superintendant has been influenced by the 2nd opposite party as he heard the conversation on mobile phone between Dr. Khare, the Orthopaedic Surgeon on the Board and the second opposite party, Dr. Juneja as also Dr. Khare did not check him up from nipple till toe, in spite of the complainant's request. All of this is reproduced in the form of affidavit filed by the complainant.
13. In the presence of the complainant, opposite parties with the permission of the Bench showed, through a video film, the complainant driving a scooter and the pillion rider carrying his crutches - complainant was seen driving the two wheeler including accelerating, applying brakes with feet and all other operations expected from a scooter driver in Delhi.
14. Arguments were heard. Complainant asked that his rejoinder be read as his arguments in the case.
15. On the first allegation of negligence, it is argued by the complainant that certain tests were a sine-qua-non before surgery done on him. We have two problems in accepting the contention. No expert opinion or medical literature has been produced before us in support of this contention especially when this contention has been rebutted by the evidence of the opposite parties that "pre-operative tests were duly conducted on the complainant. It is submitted that there is no thumb rule as to what tests ought to be conducted in every situation and the same is left to the clinical assessment of the Doctors". On the medical record produced by opposite party Nos. 1 and 2, we see certain tests were carried out in the Path-Lab and the material is on record, hence, it cannot be disputed that certain tests were carried out before first surgery. Whether those tests brought out by the complainant in his rejoinder are a 'must' are not borne out by any material on the subject, hence, we see no merit in this argument of the complainant.
16. Next argument of the complainant is that before going in for surgery, he should have been subjected to oral therapy in the first instance. This is strongly contested by the opposite parties in their evidence. No medical literature or expert opinion has been brought on record by the complainant in support of the above contention that in the situation that the complainant was in first line of treatment should have been oral therapy. When more than one option is open to a Doctor and he adopts one of them, non-exercise of other options does not amount to negligence unless proved to the contrary.
17. Next argument of the complainant is that it is the job of the Anaesthetist to find out the general condition of the patient to ensure that he is not having any problem before deciding that whether the patient is to be operated upon under general or local anaesthesia. This was not done in this case. It is further the argument of the complainant that even when it is decided to give the patient local anaesthesia it must then be giving in 'Trendelenburg' position (the patient made to sit in a position that his forehead structures toward as much as possible toward the knee joint). This was not followed by the Anaesthetist. Along with this, the argument advanced by the complainant is that there was negligence on the part of Anaesthetist to administer anaesthesia in a proper place resulting in his disability which is one of the admitted side effects. The complaint revolves around this point alone. There is no dispute on the fact that the complainant was administered local anaesthesia via his spinal cord. Evidence of opposite party - 4 Dr. Sunil Seth becomes important and we reproduce below his evidence on the point in-extensio :
"As a part of spinal anaesthesia procedure, an anaesthesiologist scrubs his hands properly and after wearing sterile gown and gloves cleans the area to be injected so that no external infection is introduced into the spinal space. By following the anatomical guidelines i.e. feeling the vertebrae it is ensured that the injection is given at the level where the spinal cord has ended i.e. at L 3-4/L 4-5 level. A sterile and disposable needle is used and after the successful injection, characterised by a free-flow of Cerebro Spinal Fluid (CSF), a known quantity of specific drug specially meant for this is injected. The patient is then positioned for operation.
During the procedure of injecting the drug in the spinal space, the presence of or absence of small nerve root cannot be ensured. There is no specific way known in the medical science to map out the nerve root and an injury to any nerve root is a very rare but known complication of spinal anaesthesia.
In other words, spinal anaesthesia is a blind procedure. However, spinal anaesthesia is preferred over general anaesthesia as it has less known complications e.g. "(i) less chances of aspiration (fluid going into lungs), (ii) no post-operative volitting, (iii) no air-way problem during operative and postoperative phase, (iv) less effect on body metabolism and body chemistry and as such is a preferred technique especially for patients with kidney problem, and (v) if any complication arises that is more easily manageable.
Spinal anaesthesia can be given in sitting as well as in lying position.
Sitting position is generally used for operations on the lower limbs, sacral, perineal, anal, outer genitals, veginal, cervix areas and for operations for haemorrhoids (piles), penis and scrotum.
Lying position is used for operations on appendix, inguinal hernia, some operations on kidney viz. P.C.N.L., uterus and caesarean sections as in these operations muscular relexation and pain relief is required at higher levels.
The known complications of negligence during the procedure of spinal injection are : (i) infection being introduced from outside resulting in meninglam or menengitis, disc space infection or para-spinal abscess; (ii) uses of wrong dose of drug can give rise to its toxity; (iii) fall of blood pressure if not corrected can be fatal; (iv) faulty level of injection can injure the spinal cord resulting in permanent paralysis of both lower limbs. The complainant did not suffer from any of the above complications caused by negligence.
Thus the procedure of giving spinal anaesthesia is a blind procedure, there being no known way anywhere in the world to know about the presence or absence of nerve root at L 3-4 or L 4-5 level, hence there was no negligence on my part in administering spinal anaesthesia."
His views are supported by the evidence of the only expert witness in this case that of Dr. V.N. Vohra whose short evidence on affidavit is reproduced below :
"I am M.B.B.S., M.D., F.F.A.R.C.S. (Fellow Faculty of Anaesthetists Royal College of Surgeons) London and am attached to Sir Ganga Ram Hospital as a Senior Consultant in Anaesthesiology.
The spinal cord ends at Lumber 1 (L-1) level and hence it is considered safe in spinal anaesthesia to choose space between L 3-4/L 4-5 level to inject the drug. The anaesthetist has to go by the feel to determine the space/level at which he has to inject the drug. However, there is no way of ascertaining the presence of thread like nerve roots in these spaces and in very rare cases an inadvertent injury to the nerve root may be caused by the needle used for injecting the drug resulting in Radiculitis. There is no known way to avoid such an inadvertent injury resulting in Radiculitis and hence, if caused, cannot be called to have taken place due to negligence in administering anaesthesia. In this sense spinal anaesthesia is a blind procedure as practised all over the world.
Spinal anaesthetic technique is preferred over general anaesthetic technique where ever it is possible as it has far less complications. For conducting P.C.N.L. spinal anaesthetic technique in lying position is a preferred technique unless contra-indications are known in the patient."
18. It is settled law that when two choices are available, exercise of one, which is the best, in the judgment of the Doctor and nothing else is available to contradict this, the Doctor in such circumstances cannot be held to be negligent. Complainant has not produced any expert evidence or medical literature to support his plea whereas his argument has not only been rebutted in clear terms but rebuttal is supported by the opinion of an expert in the field. What was done by the anaesthetist was as per accepted medical procedure and settled position on the subject. In such circumstances he cannot be held guilty of any negligence especially when all over the world it is an accepted procedure having less than 1% of risk. In the instant case unfortunately the complainant fell in that one percent of spinal anaesthesia and suffered Radiculitis, a known but infrequent complication. Blood coming with urine after P.C.N.L. is a known complication. In support of this, ample literature has been brought on record by O.P. 3. This in our view cannot be said to be a case of medical negligence.
19. Next argument of the complainant is that he was in no condition to undergo first surgery because his haemoglobin was 6.9 gm%, pulse rate was 90 against normal of 72 and B.P was 116/110 against normal of 120/80. This has been rebutted by the O.Ps. and in this they are supported by the record. Lab Report prepared by Dr. Nakra, Consultant Pathologist is on record which shows the haemoglobin of the complainant to be 11.50 on 11.1.1993. Operation record shows, Pulse rate 84/minute and BP 130/90 mm. hg. The truth of the argument advanced by the complainant is punctured by the material on record. Second surgery was done under general anaesthesia. His BP was recorded as 110/80 mm. hg. Blood transfusion was also done. No material is produced on record to show that haemoglobin must be between 14-16 gms. In this case it was a life saving surgery and 5 bottles of blood had been given earlier to him. We see no merit in this argument of the complainant.
20. It is also the case of the complainant that before the second surgery, he was advised to call his relatives and friends, which he did, for the second surgery on 9.2.1993. His consent was obtained when he had already been given anaesthesia and secondly he was never told that one of his kidney has been removed during the surgery (it is important to note that in the complaint he mentioned of his right kidney having been removed and in his rejoinder affidavit he states correctly of his left kidney having been removed). Affidavits of two of the friends/relatives of the complainant namely, Tikam Singh and Rajinder Singh have been filed by way of evidence in support of his case by the complainant. Both these affidavits are false and wrong on the face of it. In the complaint and the rejoinder (to be read as arguments) it is the case of the complainant that he was advised to call his friends and relatives during the second surgery - whereas these two persons refer to the date i.e. 12.1.1993 when first surgery was performed and they in a word by word, uniform affidavit, say the same thing. There is not a word about the second surgery in February - 93 and yet have the audacity to mention that "Dr. Juneja had removed the kidney of the said Charan Singh instead of removing the stone...". We are in no position to accept these affidavits filed by way of evidence by the complainant and reject them with the contempt they deserve. We are supported in our view by the fact that the opposite parties in their affidavits clearly state that when the complainant came for the first time he came alone. During the second surgery, left kidney is removed as a life saving measure and is duly reflected in the discharge notes clearly. Nothing proves a fact better than the record and the record is not challenged by the complainant.
21. In the light of above discussion, we find that no case of medical negligence is made out by the complainant against the opposite parties.
22. Something need to be said on the disability suffered by the complainant. On the percentage of disability suffered by the complainant, we have three reports on record - '99%' by Guru Tegh Bahadur Hospital, Delhi, more than 50% by Lok Nayak Hospital, New Delhi, both obtained by the complainant and 25% by the Medical Board of R.M. Lohia Hospital, New Delhi, constituted on the direction of the Commission with the consent of both the parties. We have no hesitation in accepting the report of a Medical Board comprising Specialists from three Streams/Disciplines. However, we would like to deal with the affidavit filed by the complainant alleging influencing the Orthopaedic Surgeon Dr. Khare of the Board by the 2nd opposite party but the affidavit clearly says that Dr. Khare told him to speak to some other Doctor and switched off the phone. We see that the report (reproduced earlier) is unanimous and signed by the three Doctors. Suffice here to say that the C.D. shown on the screen in the presence of the complainant showing the complainant driving a scooter in open market does not help his case. In any case in view of our finding that there has been no negligence which can be attributed to the O.Ps., percentage of disability becomes of no consequence.
23. The allegation of opposite party that the complainant has been under treatment with AIIMS, Orthonova and other Hospitals, having neither been rebutted not met by the complainant leaves us with no option but to draw an adverse reference against the complainant as he has not produced any material or record as to what was their report on the status of the complainant or about any 'procedure' carried out on the complainant in any or all of these Hospitals. We cannot but accept the argument of O.Ps. that things might have got aggravated as a result of any treatment at any of these or other Hospitals. Admitted position also remains that a huge amount remain outstanding and unpaid by the complainant.
24. The complainant has not been able to prove any negligence against the opposite parties by way of any evidence of a Medical Expert or Medical Literature as to what they did, was not expected of a Doctor of average skill or they did not do what was expected of a Doctor possessing ordinary skill. Here were Doctors of large experience having the requisite qualifications and experience and they did, what would have been done by Doctor of an ordinary skill. We do not see that any case of medical negligence has been made out against the opposite parties by the complainant. This complaint is devoid of merits and is hereby dismissed with costs which we fix at Rs. 5,000/- to opposite party Nos. 1 and 2 and Rs. 5,000/- each to opposite party Nos. 3 and 4 payable by the complainants within eight weeks of this order.