National Consumer Disputes Redressal
James Philip(Deceased) Through Lrs vs Dr. H. Unni Krishnan & Anr. on 2 November, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 179 OF 2002 1. JAMES PHILIP(Deceased) THROUGH LRs UNION BANK OF INDIA VELLORE - 632 004 RESIDENTIAL ADDRESS - 363/A SHANMUGHAM STREET OTTE ...........Complainant(s) Versus 1. DR. H. UNNI KRISHNAN & ANR. NEURO SURGEON LISSIE HOSPITAL ERNAKULAM KOCHI - 682 018 KERALA 2. - - ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON'BLE DR. S.M. KANTIKAR, MEMBER
For the Complainant : Mr. V. Prabhakar, Advocate For the Opp.Party : For the opposite party No.1 : Mr. R. Sathish, Advocate
For the opposite party No.2 : Mr. Mathai M. Paikaday, Sr. Adv. with
Mr. Anas Shamnad, Advocate
Dated : 02 Nov 2015 ORDER
DR. S. M. KANTIKAR, MEMBER
Facts:
1. The complainant, Mr. James Phillip (hereinafter referred to as the patient), a bank employee, was suffering from backache. In September, 1999, he consulted one orthopedic surgeon, Dr. Lazer Chandy. Subsequently, in the next year (2000), the patient felt difficulty in climbing the stairs due to weakness in the legs and consulted Dr. Gigy Kuruthukulum, Neuro Physician. MRI study was done. It showed some growth in thoracic vertebrae (T10). Thereafter, he was referred to Dr. John Mathew, a Neuro Surgeon, who advised for removal of the tumor, which would cure the problems. On 15-05-2000, the patient approached OP-1, Dr. H. Unnikrishnan, a Neuro Surgeon, practicing at Lissie Hospital, Ernakulam (OP-2). Various laboratory tests including x-ray, ultrasound, etc., were done. The patient was operated on 20-05-2000. The OP-1 informed the patient that, tumor needed to be removed by surgery which would consume about two hours and two weeks, hospitalization needed and then he can resume to his official duty after six weeks. The patient was able to walk, used to drive his car prior to hospitalization. OP-1 examined the patient along with another Neuro Surgeon, Dr. Uttham Kumar. The OP-1 told that compared to brain tumor operation, his operation is a minor one. The complainant sought advice if there was any need to go to higher centre, but the OP-1 told that there was nothing to worry. On the day of operation, at 8 AM, the patient walked up to operation theatre. After operation, he was shifted to the ICU, where he noticed that he could not move his legs and thereafter he was unable to speak normally. His sound became husky and gruffly. He was kept in the ICU for 11 days; the OP-1 never visited regularly but, visited him first time on 7th day, just for 2 to 3 minutes. The OP-1 informed that, it is a temporary loss of sensation in his legs. The patient further submits that he had no control over the urine and bowel movements; hence a catheter was inserted to empty his bladder. Due to operation on the spine, his body position had to be changed every two hours which caused severe discomfort and he could not get proper sleep. The biopsy was reported as a malignant tumor, it was not disclosed to the complainant by the OP-1. During the course of the hospitalization, the OP noticed a tumor between heart and lungs for which FNAC through the chest, was decided, but the relatives of patient were suspicious about the movements of the hospital staff and OP-1. Therefore, decided to shift the patient to Chennai. The patient was flown to Chennai on 31-05-2000 and admitted in Rai Memorial Hospital & Cancer Research Centre at Chennai. Patient was given radiotherapy. After few days of the treatment, the CT Scan of chest revealed no signs of any tumor, hence FNAC was not performed. The patient took 14 sittings of radiation. In addition, he had also undergone three cycles of Chemotherapy. At Chennai, the doctors noticed that the operated wound was not healed, although, a fresh dressing was done, daily. There was continuous CSF leak from the operated wound. It was informed to the patient that OP-1, after removing the tumor from the T10 vertebra, had negligently damaged the spinal cord membranes. OP-1 opened the Dura unnecessarily and failed to close it properly, thereby putting the life of the patient to dire risk. There was no informed consent, the patient's wife had signed the consent form, it was only for the removal of tumor and not for any other procedures adopted by OP-1. It resulted into permanent disability for which OPs are responsible jointly and severally. The doctors at Chennai re-sutured the wound. It took about two months for complete healing. The complainant further submitted that he was completely bed ridden, lost the hope to regain sensation. With the hope of regaining sensation in the legs, the patient was taken to Christian Medical College (CMC, Vellore) on 24-07-2000, for intensive physiotherapy. The PMR Department at CMC told that, the patient had 100% loss of sensation and, therefore, shall not be able to walk again. Therefore, patient had been confined to wheelchair. At CMC, patient was given occupational therapy, physiotherapy and speech therapy, under supervision of Dr. Suranjan Bhattacharjee. During that period, he was administered three more cycles of Chemotherapy by Hematology Department. Thereafter, a fresh MRI scan of operated area was taken, which noticed that there was still a lesion near spinal cord area. Dr. Mammen Chandy of Neurology Department decided to do a needle biopsy, but it was deferred as the lesion was too close to spinal cord. The complainant submitted that Dr. Chandy opined that further surgery is not possible because the OP-1 committed a serious mistake by opening the Dura and damaging the spinal cord that had caused irreparable damage to the patient and expressed about 5% chance of recovery. The patient was shifted on 18-12-2000 to intensive rehabilitation program at Rehabilitation Institute, Bhagyam, which was about 5 km from CMC Hospital. During second week of January 2001, a swelling appeared in the operated area. Hence, he was again investigated and MRI scan was performed which detected, nothing abnormal. Even then, the wound was not healing properly, therefore, on 08-03-2001, while dressing the wound, the doctors noticed that a cotton thread was coming out from the wound from the operated area. Hence, the patient was shifted immediately to CMC Hospital, once again. The Neuro Surgeon, Dr. Shanker, removed the pieces of cotton gauge which was left behind by OP-1 through surgery on 20-05-2000. After removal of foreign body, the wound started healing immediately.
2. Due to prolonged hospitalization, there was inordinate absence from the duty; hence the patient lost his promotion. He became permanently handicap. The entire happening was due to the negligence of the OP-1. Hence, alleging negligence on the part of OPs, the complainant filed a complaint before this Commission on 14-05-2002 and prayed compensation to the tune of Rs.77,96,820/-. The complainant annexed the MRI, CT Scan and Bone Scan reports, different medical reports, discharge summary and the present status report along with bills, prescription, etc. Defense:
3. The OPs filed written version. Submitted that the patient approached OP-1, Dr. Unnikrishnan, after obtaining a second opinion from Dr. John Mathew, a Neurosurgeon. The OP-1 performed laboratory investigations and MRI. As per MRI, there was destructive expansile growth at D-11 vertebra. The patient was obese and hypertensive also. Therefore, in view of the advance cancer, the OP informed the patient and his relatives that the operation can only, at best, be palliative and not curative. The inherent risk was explained and the surgery was performed after written informed consent. The patient was declared fit by the cardiologist. Hence, he was operated on 20-05-2000. The operation was successful, but during post-operative period, the patient developed paraparesis (weakness of lower limbs) and changes in the voice were due to advanced cancer. Therefore, it was no way concerned with the surgery. After laminectomy for Dural decompression, no dural pulsations were visible, therefore, OP-1 opened the Dura, it revealed arachnoiditis and Arterio-Venous Malformation (AVM). After treating for both, the spinal cord was swollen; therefore, purposely, the Dura was left open. There was wound dehiscence on 9th post-operative day and CSF leak was noted. Re-suturing was done under local anesthesia. The HPE report revealed about the possibility of Plasmacytoma and Non-Hodgkin's Lymphoma (NHL). Therefore, there was no negligence in the diagnosis and treatment, given to the patient.
Arguments:
4. On behalf of complainant:
(a) The learned counsel for the complainant, Mr. V. Prabhakar, vehemently argued the matter and reiterated the facts mentioned in the complaint. He submitted that, as per MRI report (09-05-2000) there was destructive tumour involving right portion of D 10 vertebrae, also there was protrusion of L4-L5 disc. The OP 1 ought to have first recommended a CT guided needle biopsy, as a standard of practice. Considering histopathology report (HPE) the course of action ought to have determined like chemotherapy or radiation. Therefore, the surgery ought to have been the last resort, if the other treatments fail. There was no oncologist or hematologist in his team, while performing the complex surgery. The counsel brought our attention to the discharge summary of OP hospital and the operative findings. It revealed that at T10, thin membrane of spinal cord was abnormally thick and hard. The spinal canal was compromised in front and back portion. There was a compression at T-10. The tumour was removed piecemeal and the outermost membrane (Dura) was decompressed. Post-operatively, the patient could not move his legs and/or speak. The patient was in ICU for 11 days. He was catheterized for urinary outflow. The surgical wound did not heal, despite cleaning and dressing, daily. There was CSF fluid leak from the wound. The lower limb power was found to be zero and there was loss of sensation below the waist. He further submitted that once the removal of tumour was completed, the cord compression was also relieved, therefore, OP 1 ought to have concluded the surgery, but OP 1 proceeded to open the Dura on the ground that there was no pulsation. Hence, the Dura was tempered causing damage to spinal cord resulting into paraplegia.
(b) Regarding Expert opinion from AIIMS The counsel further argued that the expert report from AIIMS is incomplete. He submitted that, an expert body of doctors is expected to analyze the case on hand, properly. It is devoid of several details, hence the said report cannot, at all, be considered. It merely mentioned that opening of Dura was justified. The expert body has not considered the option as to whether, a needle biopsy/FNAC ought to have been done in the first instance to determine the exact nature of the tumor followed by medical non-surgical procedures such as radiotherapy and chemotherapy and whether surgery ought to have been the last option. The report did not comment on vocal cord palsy. Hence, the expert opinion cannot be relied upon.
He further submitted that the OP 1 affirmed about the presence of cancer in the chest of patient without FNAC or any investigations. At the request of the relatives of the patient, he was referred to Oncology Centre at Chennai. Nothing was revealed there about any mediastinal (chest) mass. Hence, it clearly shows the negligent attitude of the OPs in their duty that made a wrong diagnosis. The counsel stated that neurosurgeon at CMC Hospital, Vellore removed a piece of gauze measuring 1 inch from the surgical wound. It was there, for several months; therefore, it was a clear evidence of the negligence. As per the counsel for complainant the expert gave cryptic report it is reproduced as below:-.
"the presence of gauze was a serious issue. But for the gauze having been left during the course of surgery, there is no explanation on the part of the opposite parties for the surgical wound not healing for months together despite regular cleaning by them".
(c) Due to negligence of OP, the patient became totally bed ridden, confined to wheel chair. He suffered physical and mental agony. He was forced to employ a driver, lost promotion, became practically isolated from the society. He became disabled due to negligence of OP. Therefore, the complainant should be compensated properly. The counsel relied upon the following cases of Hon'ble Supreme Court:
(i) V. Kishan Rao Vs. Nikhil Super Speciality Hospital & Anr., (2010) 5 SCC 513
(ii) Marghesh K. Parikh (Minor) Vs. Dr. Mayur H. Mehta, (2011) 1 SCC 31
5. Arguments on behalf of Opposite Parties:
(a) Decision for surgery:
The learned counsel for OP-1 submitted that, the patient was admitted in the OP-2 hospital on 15-05-2000 with following symptoms:-
(1) Backache for the previous 8 months. (2) Weakness and abnormal sensation in the lower limbs for the previous 4 months. (3) Difficulty in climbing stairs. (4) Sexual dysfunction.
From the clinical examination and the preoperative investigations, Dr. Unnikrishnan (OP-1) realized that the condition of the patient was critical. It was diagnosed as possibly of two malignant lesions, one in the D11 vertebra and another in the anterior mediastinum. The MRI report was, "Expansile destructive lesion involving both laminae and pedicle on the right side D11 vertebra. The lesion is hyperintense on T2W1 and isointense on T1W1. Posterior part of D11 also shows increased signal. There is a localized canal stenosis at D11 level, with cord compression. Spinal cord at D10-D11 level shows local area of increased signal suggestive of myelomalacia. There was diffuse disc bulge with left lateral disc protrusion of L4-L5 disc narrowing root canals on both sides, more on the left side, etc." The patient and his relatives were told that it was a major operation. Possibility of complications was also apprised to the complainant by the OP-1. Informed consent was taken from the patient, his wife and brother-in-law. The surgery was postponed because of him, being a hypertensive with abnormalities in the ECG and chest X-ray. Cardiologist was consulted and his clearance was obtained. After that, the operation of D10-D11 laminectomy was performed on 20-05-2000. The tumour was removed in piecemeal; further laminectomy was performed to decompress the spinal cord.
(b) Opening of Dura:
The counsel further argued that, opening of Dura was on table operative decision as per circumstances. After laminectomy, no pulsation seen in the Dura, therefore OP-1 opened the Dura. Incidentally, OP-1 found AVM, it was coagulated and excised. In fact, during routine practice to diagnose AVM, the Digital Subtraction angiography (DSA) is needed before treatment.
(c) Gauze piece in the operated wound:
The counsel denied the allegation that OP-1 left a piece of gauze in the patient's body, during the surgery. He submitted that, the gauze used in the hospital was of the size approximately 20 cm X 4 cm. As a standard protocol, gauze count was made before and after the surgery. Wound was closed after tallying the count and after thorough inspection of the wound . There was no negligence. The 'thing' said to have been removed, might be a cotton wick, which is normally used for dressing on an open wound, which took place at Chennai. The surgery was conducted on 20-05-2000, therefore, by any stretch of imagination, it will not be possible that a foreign body remained there up to 08-03-2001 without getting noticed during the subsequent treatments.
(d) The learned counsel for the OP-2 Mr.Mathai M.Paikaday argued that the complainant has not impleaded the different hospitals as parties to the complaint, where he took treatment, namely, Roy Medical, CMC Vellore and Bhagyam Hospital. No medical records are provided from the above said hospitals. In any medical negligence case, the burden of proof is on the patient. Therefore, the complaint deserves to be dismissed on these counts only. Regarding causation, he has argued and brought to our attention Vinita Ashok's case and Bolithio's principle.
Findings:
6. We have perused the entire medical record, the CT and MRI reports. The MRI was performed on 09-05-2000 i.e. prior to the surgery. It is reproduced as below:
"* Expansile destructive lesion involving both laminae and pedicle on right side of D11 vertebra. The lesion is hyperintense in T2W1 and isointense on T1W1. Posterior part of D11 also shows increased signal.
* There is localized canal stenosis at D11 level with cord compression. Spinal cord at D10-D11 level shows focal area of increased signal suggestive of myelomalacia, Conus is normal.
* Diffuse disc bulge with left lateral (foraminal) disc protrusion of L4- L5 disc narrowing root canals on both sides, more on left side.
* Diffuse bulge of L5-S1 disc narrowing root canals on both sides, more on left side.
* Paraspinal soft tissues are normal.
Impression # Expansile destructive lesion involving laminae and right pedicle of D11 vertebra with localized canal stenosis and cord compression.
DD:- 1. Giant cell tumour.
2. Metastasis
3.?? TB.
# Left lateral disc protrusion of L4-L5 disc. Suggested clinical correlation."
The CT scan Thorax was performed on 19-05-2000 i.e. 15 days after the operation, which revealed the following findings;
" Impression: CT scan of the thorax reveal approximately 8.3 x 8.2 cms well marginated minimal enhancing mass lesion in the anterior mediastinum in the right paracardiac region with well preserved cleavage plane. CT appearance is nonspecific suggest following differential diagnosis:
Germ Cell tumor ? thymoma ? secondary deposit"
7. The discharge summary revealed as:
" Operative findings Laminae abnormally thick and hard at D10 in parts.
Spinal canal highly compromised anteriorly and posteriorly. Soft greyish suckable tissue involving spinous processes, laminal, pedicle extending into the vertebral body anteriorly, causing severe compression of the thecal sac at D11.
Neoplastic tissue removed piecemeal and dura well decompressed.
However, no pulsation of the dura was seen below D10 level. Hence, the dura was opened and the cord examined.
Constructive arachnoiditis causing obstruction to CSF flow at D10 level. An alterioverous malformation with evidence of previous hemorrhage was also seen at D10 level.
The AVM was excised and hemostasis achieved.
Dura was left open as the cord became ocdematous. The dural defect was covered with fat patch.
Course in the hospital Immediate post op .period - lower limbs power grade O with total sensory loss below D11.
On the 4th post op.day pt. developed hoarseness of voice. ENT consultations done - (L) vocal cord palsy + On 9th post op.day - pt. developed wound dehiscence and CSF leak. Resulting of this would/LA done."
8. In our view, patient developed complications which are inherent in the treatment and well documented in the literature as:
"The procedure called laminectomy carries 3 - 15% risk of death, 5 - 23% risk of neurological worsening and 8- 42% risk of other complications! Multiple myeloma is an incurable disease. Even if no treatment related complications occur, the median survival time is only 3 years."
9. Regarding the delay in healing of wound, was related to infection and as well due to radiotherapy (Radiation myelitis) leads to damage to spinal cord. It is also pertinent to note that, the MRI Scan report dated 09-05-2000 revealed evidence of Myelomalacia. The opening of dura by OP-1 was justified, for inspection of the spinal cord. The dura was left open for a definite purpose. Therefore, we do not find any deviation in the standard of practice.
10. It is also important and to carefully note in the instant case, that during the course of treatment at rehabilitation at CMC, Vellore the patient developed blind sinus at suture line. A thread like foreign body sticking out through sinus was noted. Ultrasound showed granulomatous lesion about 5 cm deep from skin surface. The neurosurgeon at CMC, Vellore removed a gauze piece measuring about 1 inch, thereafter the sinus was totally healed. Neurosurgeon was still suspecting similar foreign body, deep to it and advised to explore, but patient did not consented for it. We hold the OP-1 negligent to the extent of leaving behind the gauze piece. It was a chronic sinus, about 5 cms in depth, thus, there was retained foreign body (gauze piece), due to possibility from the initial surgery performed by OP-1.
11. Regarding the diagnosis and treatment given by OP-1, we do not find any negligence because, OP-1 is a qualified Neurosurgeon. The patient's clinical examination and the MRI report clearly established that there was severe spinal cord compression. Immediate attention/ intervention was needed in such instant case, to avoid further damage. No doubt, FNAC or biopsy would have helped to arrive for proper diagnosis, but the primay concern was surgical intervention for release of cord compression. The OP-1 took proper decision of surgery. The tumour was expansile, resection was necessary. We do not find any flaw in the decision and skill of OP-1, who opened the dura for a justified reason. The patient developed paraplegia due to inherent malignant disease, it was not due to negligence during surgery.
12. We took clue from the case Achutrao Haribhau Khodwa and Ors. v State of Maharashtra and Ors (1996) 2 SCC 634, wherein the Hon'ble Supreme Court, held that:
"in the very nature of medical profession, skills differs from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession."
In Hucks v. Cole (1968) 118 New LJ 469, Lord Denning stated that:
"a medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field."
13. In Kusum Sharma Vs. Batra Hospital (2010) 3 SCC 480, the Hon'ble Apex Court laid down that, Negligence cannot be attributed to a doctor so long as he performs his duties with a reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the Medical Profession.
In the instant case, OP-1 performed his duties with reasonable skill and competence. Our view, further dovetails with an authority reported in "Malay Kumar Ganguly vs. Sukumar Mukherjee & Ors. with Dr. Kunal Saha Vs. Dr. Sukumar Mukherjee & Ors. [AIR 2010 Supreme Court 1162]."
"We may hold a medical practitioner liable to indemnify the complainant only where his conduct falls below the standard of a reasonably competent professional in his field. The medical professional is expected to exercise reasonable degree of skill, a reasonable degree of care and should possess knowledge of an expert in the field which is comparable with a standard medical practitioner. Neither the very highest nor a very low degree of competence is contemplated."
14. Similarly, in the case "Martin F. D' souza vs. Mohd. Ishfaq", 2009 CTJ 352 (SC) in which the Hon'ble Supreme Court, was pleased to observe as under:-
"41. A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another."
"49. When a patient dies of suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions."
15. "No cure, is Not a Negligence". No doctor will give guarantee, but he will put his all efforts to treat the patient. In the case Smt. Narangiben Subodhchandra Shah & Ors. Vs. Gujarat Research and Medical (2012) III CPJ 509 (NC) has, inter alia, at Para 20, this commission observed that "After all doctors can only treat but cannot guarantee the success of a surgical operation which inevitably is fraught with risks."
16. On the basis of forgoing discussion, we hold the OP-1 negligent to the limited extent only for the gauze piece left behind in the surgical wound, which caused chronic sinus and delayed healing. The patient had to take treatment for a long duration, therefore, we are of considered view that, patient should be awarded proper compensation. As, OP-1 is working in OP-2 hospital, thus OP-2 is vicariously liable to pay the compensation. The patient died during the pendency of this case, therefore, the Legal representatives were brought on record on 05-05-2014. Therefore, the OP-2 is directed to pay the LRs a total compensation of Rs.2,00,000/- with interest @ 6% per annum, from the date of filing this complaint, within 60 days, otherwise after expiry of 60 days, it will carry further interest of 12% per annum, till its realization.
Parties shall bear their own costs.
......................J J.M. MALIK PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER