State Consumer Disputes Redressal Commission
Sri. Davis V.C @ Devassy, vs M/S Lourdes Hospital, on 20 December, 2010
Daily Order
Complaint Case No. CC/01/34 Davis V.C@Devassy Vs. The Director,M/s Lourdes Hospitals BEFORE: HONARABLE MR. JUSTICE SHRI.K.R.UDAYABHANU PRESIDENT SRI.M.K.ABDULLA SONA Member PRESENT: Dated : 20 Dec 2010 ORDER Disposed Off
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
OP No. 34/2001
JUDGMENT DATED: 20-12-2010
PRESENT:
JUSTICE SHRI. K.R. UDAYABHANU : PRESIDENT
SHRI. M.K. ABDULLA SONA : MEMBER
COMPLAINANT
Sri. Davis V.C @ Devassy,
S/o Chackappan,
Veliyath House, Cheruvaloor P.O.,
Koratty (via), Thrissur District.
(Rep. by Adv. Sri. V.K. Balachandran)
Vs
OPPOSITE PARTIES
1. M/s Lourdes Hospital,
Pachalam, Ernakulam, Kochi - 682 012,
Rep. by its Director.
2. Dr. P.Y. John,
ENT Surgeon and Consultant,
Lourdes Hospital, Pachalam,
Ernakulam, Kochi - 682 012.
(Rep by Adv. M/s P.F. Thomas & Associates)
JUDGMENT
JUSTICE SHRI. K.R. UDAYABHANU : PRESIDENT The complaint is filed alleging medical negligence. It is the case of the complainant that he underwent Functional Endoscopic Sinus Surgery (hereinafter to be mentioned as FESS) on 14-06-2000 and that the surgery was conducted by the second opposite party Doctor/ENT Surgeon. He was an inpatient at the first opposite party hospital from 13-06-2000 up to 19-06-2000. After the surgery he developed symptoms of intracanial injury. Before discharge the nasal packing was removed from certain portions. He was told that the rest will be removed later and was asked to come for review after a week. Thereafter he developed severe headache and fever. On 26-06-2000 the opposite party doctor told him that the head ache was due to the left side nasal packing. Thereafter also he had severe headache. On 03-07-2000 the nasal packing on the left side was removed. Thereafter, also he was having severe headache and he had to be taken to the hospital on 06-07-2000. He was again admitted in the hospital. X-ray was taken on 08-07-2000. Strong antibiotics were administered, still the headache persisted. He had vomiting on 09-07-2000 due to severe headache. Although he sought for neurological consultation the doctor on 10-07-2000 referred him to the General Physician of the hospital. As directed by the Physician X-ray of the head was taken twice. The Physician referred him to the Neuro Physician only on 12-07-2000. CT Scan examination of the brain was done on 12-07-2000. As per report there was regional odoema with partial effacement and elevation of left frontal horn. It also showed small hyper dense opacity in the inferior part of left frontal lobe about 1.2 cm above the diaphragma sellae in the coronial sections. A bony fragment measuring 5-6mm was located. Again CT Scan was taken on 17-07-2000 at the opposite party hospital. The same showed that a bony fragment has gone into the brain during the FESS conducted on 14-06-2000. The same was on account of the negligence on the part of the opposite party doctor. It was in order to conceal the negligence on his part that he delayed referring him to a Neurosurgeon inspite of repeated requests. It is also alleged that the medical records were manipulated. On 18-07-2000 he filed a complaint before the first opposite party pointing out the above facts. The contention in the reply received are untenable and false. Even after discharge on 22-07-2000 he continued to have severe headache and fever. He was taken to Christian Medical College Hospital, Vellore. CT Scan taken at the CMC, Vellore confirmed intracranial extension and frontal cerebritis along with abscess formation. He was advised to continue strong antibiotics for a further period of 6 weeks. After the above period he again consulted the doctors at CMC, Vellore on 12-09-2000. The repeated CT Scan showed considerable improvement in the abscess and cerebritis. But the presence of displaced bony fragment continued. Thereafter also the complainant was advised to continue medicines. After two months another CT Scan examination was done on 27-11-2000 at Little Flower Hospital, Angamaly. The report showed significant improvement of the edema but the existence of a bony fragment having the size of 8 x 4 mm in the cranial fossa on the left side is seen in the brain parenchyma with a corresponding bony gap of 3 mm size. There was minimal edema around the bony fragment. Hence there is every chance of having recurring infection in the brain. Perforation on the lower bony wall of the fontal lobe and the presence of bony fragment as well as the recurring infections in the frontal sinus would cause repeated infections of the brain. He has to keep passive the physical and mental activities throughout life. He is having considerable loss of recent and past memories. The opposite party doctor tried to conceal the surgical accident that resulted in the brain infection and abscess formation. Proper medical care was not given in time, as neurological consultation was not advised despite request. The complainant has also mentioned that he underwent FESS on the right sinus earlier on 01-12-1997 at Lissie Hospital, Ernakulam. Thereafter he was feeling well. Subsequently, in 2000 he developed sinusitis infection. The doctor in Lissie hospital on examination suggested another surgery. It is thereafter he consulted the second opposite party doctor at the first opposite party hospital for a second opinion. It was under the impression created by the second opposite party that he is an expert and well known person in the above surgery that he underwent treatment with the opposite party. The complainant is aged at 49 years and was having good physic and health. He is a businessman. According to him he had to incur a sum of more than Rs. 50,000/- for the treatment and heavy expenditure for transportation for himself and bystanders to various hospitals which amounted to Rs. 20,000/-. He underwent severe pain and mental agony for which he has sought for a compensation of Rs. 50,000/-. As he could not attend his business the loss of income is estimated at Rs. 80,000/-. The complainant will have to undergo further major surgeries and he is also having a continuing permanent disability for which he has claimed a sum of Rs. 3,00,000/-. He has estimated the loss of future income at 8%. Altogether he has claimed a sum of Rs. 13,00,000/- as compensation.
2. The opposite parties have filed a joint version totally denying the allegations contained in the complaint. It is stated that the second opposite party who headed the ENT Department is qualified from prestigious Medical Institutions ie, JIPMER & AIIMS and is highly experienced. The compensation claimed is extremely excessive. It is denied that there occurred intra cranial extension in the FESS done by the second opposite party. Since there were no symptoms of any intra cranial complication during the postoperative period the allegation that the bony fragment was displaced in the surgery is incorrect. There was no surgical accident in the FESS surgery done. No surgery is done on fontal sinus. Surgery was done in the maxillary sinus and ethmoid sinuses. The allegation that he had severe headache and fever after discharge etc is denied as he came for follow up only after six days and thereafter 7 days. It is pointed out that even at CMC Vellore he was only advised treatment by antibiotics and CT scan showed reduction of edema. The size of the bony fragment and the bony gap as alleged do not tally with each other. There was no attempt to conceal anything. It is denied that neurology consultation was delayed. The treatment underwent by the complainant in the first opposite party hospital is as follows:
Mr. Davis V.C. 50/M OPD. No. 412742 had been seen in the ENT OPD by Dr. P.Y. John on 08-06-2000. His presenting complaint was blocked sensation left ear. He gave the history of FESS at Lisie Hospital on 1997. On examination he was found to have a perforation of the right eardrum and fluid in the left ear. The basic cause of his presenting complaint was infection on sinus cavities restricted mainly on the maxillary sinus and ethmoidal sinus. He was advised to clear his disease on these sinus cavities prior to solving the problems in ears. He was advised to undergo FESS to clear his nasal disease. After a proper general check-up he was posted for FESS under general anaesthesia on 14-06-2000. He was admitted on 13-06-2000 for this purpose. He underwent the FESS procedure on 14-06-2000. On surgical exposure he was found to have diseased mucosa in the maxillary sinus and ethmoidal sinus cavities. It was cleared under endoscopic guidance. His nose was packed to control the bleeding with proper packing materials. After the surgery he was put on proper antibiotics (Roxymucolite and Inj. Tobraneg) and supportive medicines to control his pain and allergy (Tab Orthobid, Tab Allegra). The medicines Tab Roxymucolite and Tab Allegra was started from the day of admission 13-06-2000. His nasal packs were removed on 15th and 16th. His nose was cleared periodically on 17-06-2000 and 18-06-2000. He was discharged on 19-06-2000 with proper instructions and medications. He attended ENT OPD on 26-06-2000 for the follow-up of surgery. He was put-on another course of antibiotics and anti inflammatory drugs (Tab Zanovid and Tab Lyser fort) for the speedy healing of the surgical wound of the sinus cavities. On 03-07-2000 he came for follow-up. He was again given treatment to speed up the healing of surgical wound. On 06-07-2000 he came to attend the ENT OPD with fever and headache. He was attended on a priority basis and admitted to control his infection. He was put on antibiotics, painkillers and anti inflammatory drugs. Since his headache continued an X-ray skull was taken on 08-07-2000, which appeared normal. His antibiotic was changed to Inj. Monocef. He had no fever from 08-07-2000 onwards but his headache persisted. On 09-07-2000 he developed stomach upset and vomiting (only once). Inj. Phernergan and Rantac was given to control his symptoms. He had no vomiting after this medication and slept well. Because of this on 10-07-2000 he was shown to the medical consultant. He advised to sent the patient for a neurological consultation. On 12-07-2000 he was referred to the Neurologist. He subjected the patient for C.T.Brain. He suspected celebrities and abscess formation in the frontal lobe. Hence he advised for a neuro surgical consultation. On 12-07-2000 a neuro surgical consultation was done. He also diagnosed it as a case of cerebrites and abscess. Even though suggested surgical intervention the complainant opted for medical management. The same antibiotics (Inj. Monocef) was asked to be continued. He was advised to repeat the CT brain on 17-07-2000. Both CT Scan showed a hypo dense opacity above diaphragm sellae (far away from the present surgical field). From 11-07-2000 his headache was minimized and had no fever. On 20-07-2000 had no headache and fever. On 21-07-2000 had no headache and fever. He was discharged on 22-07-2000 and put on Tab Ceflom and Tab Eptoin (as advised by Neuro Surgeon). He was advised to come for review after 2 weeks. It is contended that the operation was successful and was cured all the ailment he was suffering from. The complaint narrated by him are not due to the surgery. The opposite parties have sought for the dismissal of the complaint.
3. Evidence adduced consisted of the testimony of PWs 1 to 4, DW1 and Ext.A1 to 18 and B1.
4. In order to substantiate the case of the complainant that the bone fragment was displaced in the FESS performed by the opposite party doctor on 14-06-2000 the complainant has produced Ext.A2 scan report dated 12-05-2000 from Lisie Hospital wherein there is no mention about any such bony fragment. It is a case of the complainant that on account of sinusitis problems he consulted the doctor at Lisie Hospital wherein he underwent FESS on the right side and thereafter for surgery he approached the second opposite party doctor of the first opposite party hospital. In Ext.A2 issued by the Radiologist Dr. Malliakkal MD, DNB opacification of both frontal sinuses and mucosal thickening and opacification more on the left side and bilateral maxillary antra show partial opacifaction of sphenoid sinuses on both sides are noted. Hypertrophy of the inferior turbinate on the left side is also noted. Ext.A3 scan report is dated 12-07-2000 ie, subsequent to the alleged negligent FESS issued by Dr. Anusha Varghese M.D, Radiologist of the first opposite party hospital. Evidence of hypodensity in left frontal lobe parasagittaly with ring enhancing lesion measuring 1.7 x 2.2 cm is noted. Regional odoema with partial effacement and elevation of left frontal horn is also noted. A small hyperdens opacity in the inferior part of left frontal lobe about 1.2 cm above the diaphragma sellae is suspected. Bony fragment measuring 5-6 mm is also mentioned. The impression therein is focal cerebritis left frontal lobe with abscess formation and displaced bony fragment in the frontal region is suspected. PW3 is the Radiologist who issued Ext.A2. Ext.A4 is another scan report dated 17-07-2000 from the first opposite party hospital wherein also a suspected bony fracture is noted. The hyperdense focus and the size of the focal lesion and surrounding odoema as in Ext.A3 scan report remains the same. Ext.A12 is another scan report dated 07-01-2002. Ext.A12 is dated subsequent to Ext.A11 another CT Scan report dated 27-11-2000 from Little Flower Hospital and Research Centre, Angamaly. Therein also it is noted as brain parenchyma showed small bony fragment in the anterior cranial fossa left side. It is also mentioned paramedian location (4cm from frontal bone 2.1 cm from posterior clinoids). Bony gap is mentioned as 3mm. Fragment size is mentioned as 8 x 4 mm. Minimal edema around is also noted. In Ext.A12 PW3 has mentioned that the CT Scan of the brain revealed a small hyperdense area of bony spicule in the left frontal lobe region inferior aspect. It is also noted that there is a 2mm wide bony defect in the roof of left nasal cavity. Opacification of the bilateral maxillary and left frontal sinuses are also noted. PW3 has testified with respect to the CT Scan report ie, Ext.A2, A3, A4, A11 and A12. He has stated as to the size of the bony fragment that it is possible to have slight variation in different scan reports, as the size is mentioned measuring the length of the shadow. He has clarified that in Ext.A2 scan report there was no mention of any bony fragment.
5. PW2 is the Radiologist who issued Ext.A11 scan report dated 27-11-2000. He has testified in proof of the same. He has also stated that the length of the bony gap and that of the bony fragment is based on the measurement of the shadow and that there can be slight variations in the measurement. He has stated that he is having 7 years experience. He has stated that in Ext.A12 the bony fragment is situated in the left frontal region inferior aspect.
6. PW4 is the physician who treated the complainant for convulsions during the period 2001 and 2002. He has stated that during each episode the complainant used to fall down and that resulted contusions to the limbs and body. He has stated that there was inflammation and infection of the frontal lobe of cerebrum, ie, the front part of the brain and that the same is motioned in Ext.A7 ie, the discharge particulars from the first opposite party hospital dated 24-07-2000. He has stated that cerebritis was caused because of the bone fragment in the cerebrum. He has also stated that as per Ext.A10 issued from CMC Vellore it is mentioned that there was intra cranial extension, which meant extension to the bony cage of skull. He has examined the CT Scan reports and the treatment details from the various hospitals. He has stated that it is following the FESS done on the left side at the first opposite party hospital that the intra cranial extension has resulted and that the same is evident from the treatment records of CMC Vellore. He has stated that some overlooking or some lack of precautions on the part of the surgeon is the reason for the intracranial extension. He has also stated that the surgery was conducted in the region of frontal sinus, left maxillary region and left ethmoidal sinus. The bony fragment is situated in the left frontal cerebrum. He has stated that the foreign body reaction in the brain will ultimately cause epileptic type of convulsion on and off. Only by means of surgery the foreign body can be removed but some residual neurological complications will be there. It was brought out in cross-examination that he is an Orthopaedician and that his knowledge as to the ENT problems are confined to his MBBS studies.
7. DW1 is the second opposite party doctor who performed the surgery. He has proved Ext.B1 case sheet of the first opposite party hospital. According to him the surgery was confined to ethmoidal sinus and maxillary sinus and that the same will not result in the alleged dislocation of a bony fragment. According to him the complainant was referred timely to the Physician and the Physician to the Neurologist. According to him the resultant complications appeared to him as sinus infection and appropriate antibiotics were prescribed. According to him in the scan report the bony fragment is only suspected. He is stated that the CT Scan taken earlier is only that of the sinuses and not that of the brain. It was contended that the bony fragment might have been present even prior to the FESS performed him on 14-06-2000.
8. It appears that the above last mentioned contention is not correct. Ext.A2 covers the area of both frontal sinuses also. It is in the forehead portion. Ext.A4 CT Scan report is also with respect to the frontal region. The first surgery was done on 01-12-1997 as evident from Ext.A1 discharge card from Lisie Hospital dated 05-12-1997. If the bony fragment was displaced in the above surgery done in 1997 it is unlikely that the complainant had no problems of the nature alleged until after 14-06-2000 when the FESS was done at the opposite party hospital.
9. Further it is seen from Ext.A2 CT Scan report dated 12-05-2000 taken prior to the impugned surgery that there was opacification of both frontal sinuses. Of course in Ext.B1 case sheet the FESS bilateral done it is mentioned as confined to ethmoidal and maxillary sinuses. The complainant has contended that Ext.B1 is manipulated. As pointed out by the Counsel for the complainant Ext.B1 is a compilation of loose sheets. Further it is more probable that at the FESS done the opacification in the frontal sinus also as mentioned in Ext.A2 Scan report was cleared.
10. Further it is mentioned in the version that surgical intervention was advised by the Neurosurgeon of the opposite party hospital but the patient preferred medication. The existence of the bony fragment was revealed in scan report taken at the first opposite party hospital itself. According to the complainant the advice of the Neurosurgeon was concealed from him. According to him if the surgery was done immediately he could have been cured but later the surgery is risky. Ext.A10 medical report from CMC Vellore dated 20-01-2001 mentions that the repeat CT Scan done in July 2000 showed 2.3 cm ring lesion in the frontal region and edema looked less. He was treated with antibiotics. Although the complainant had applied to examine the Neurosurgeon at CMC Vellore subsequently he did not press for the same. In Ext.A10 issued from CMC Vellore it is also mentioned that during the FESS there was intra cranial extension. Ext.A13 are the prescriptions etc. of the treatment underwent at CMC, Vellore. It is seen subsequently he underwent treatment at various hospitals like Elite Mission Hospital, Thrissur, St. James Hospital, Chalakudy, Amritha Institute of Medical Sciences and Research Centre Kochi as evidenced from Ext.A14,15 and 16. Exts. A17 and 18 are bills of treatment etc amounting to Rs. 48,968/- and transportation etc. amounting to Rs. 19,955/-. Et.A18 are the bills with respect to transportation. According to PW1 he is still undergoing treatment and still he is having memory loss and difficulty to attend his business. At the time of surgery the age mentioned is 49/50 years. It is contended that the bony fragment would have pierced the nerves. The CT Scan report taken subsequent to the FESS done at the opposite party hospital ie, Exts. A3, A4, A11 and A12 do confirm the fact of displaced bony fragment and seen located in the frontal lobe. Ext.A2 prior to the FESS done contained no such bony fragment. A11 and A12 scan reports also mentions about a bony gap. The differences in the measurement of the bony fragment has been explained by PWs 2 and 3 the Radiologists. The evidence of PW4 supports the case of the complainant that the displacement of the bony fragment was occasioned in the FESS done at the opposite party hospital. PW4 although not an ENT Surgeon is a qualified person in medical science. The evidence of PW4 cannot be brushed aside just because he is not an ENT Surgeon. Further, the opposite parties could not provide any probable explanation for the existence of the bony fragment in the frontal region of the brain. Being an expert the second opposite party ought to have been more careful. There is no case for the opposite parties that the displacement of the bony fragment is an accepted complication. In the circumstances, we find that the action of the second opposite party amounted to negligence and that the opposite parties are liable to compensate the complainant for the difficulties, pain and suffering etc. endured by him. Ofcourse, the complainant has not produced proper evidence as to his present permanent disability although the documents will show that he underwent treatment in various specialized hospitals in Thrissur and Ernakulam Districts and at CMC Vellore. PW4 has stated that the condition would result in epilepsy and off and on convulsions. The complainant has also produced bills of treatment and transportation etc. amounting to about Rs. 70,000/-. In the circumstances, we find that a global assessment of compensation would be adequate. We assess a sum of Rs. 3,00,000/- as the compensation to be paid by the opposite parties.
In the result, the opposite parties are directed to pay sum of Rs. 3,00,000/- towards compensation to the complainant with interest at 6% per annum from the date of complaint (ie, 03-04-2001). The first opposite party would be liable to pay 50% of the above amount and the second opposite party doctor to pay the rest. If the amount could not be realized from any one of the opposite parties, the complainant would be entitled to execute the entire order against the other opposite party. The amounts are to be paid within 3 months from the date of receipt of this order, failing which the complainant would be entitled for interest at 12% from 20-12-2010, the date of this order. The complainant will also be entitled for costs of Rs. 5,000/-.
JUSTICE K.R. UDAYABHANU: PRESIDENT
M.K. ABDULLA SONA : MEMBER
APPENDIX
Witness for the Complainant
PW1 V.C Davis @ Devassy
PW2 Dr. M. Nagaraj
PW3 Dr. Jerry Malliakkal
PW4 Dr. C.P. Johny
Exts. for Complainant
A1 Discharge Summary issued from Lissie Hospital dated 05-12-1997
A2 Scan Report dated 12-05-2000
A3 Scan Report dated 12-07-2000
A4 Scan Report dated 17-07-2000
A5 Medical Certificate dated 22-07-2000
A6 Discharge card issued by the first opposite party
A7 Certificate issued by the second opposite party
A8 Letter dated 18-09-2000 sent by the complainant to the Director, Lourdes Hospital.
A9 Letter dated 24-10-2000 sent by the Director, Lourdes Hospital to the complainant
A10 Medical Report dated 20-01-2001 from CMC Hospital, Vellore.
A11 Scan Report dated 27-11-2000
A12 Scan Report dated 07-01-2002
A13 Prescriptions etc. of the treatment underwent at CMC, Vellore.
A14 Prescriptions issued from St. James Hospital
A15 Prescriptions issued from Elite Mission Hospital, Thrissur.
A16 Prescriptions issued from Amritha Institute of Medical Science
A17 Bills of treatment
A18 Bills for transportation
Witness for the Opposite Party
DW1 Dr. P.Y. John
Exts. for Opposite Party
B1 Case Sheet
JUSTICE K.R. UDAYABHANU : PRESIDENT
M.K. ABDULLA SONA : MEMBER
Sr.
[HONARABLE MR. JUSTICE SHRI.K.R.UDAYABHANU] PRESIDENT
[ SRI.M.K.ABDULLA SONA] Member