National Consumer Disputes Redressal
Administrator, Kle Society'S Hospital ... vs Master Shivaraj & Shivakumar on 21 May, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3375 OF 2010 (Against the Order dated 09/06/2010 in Appeal No. 2877/2009 of the State Commission Karnataka) 1. ADMINISTRATOR, KLE SOCIETY'S HOSPITAL & MEDICAL REASEARCH CENTRE & ANR. Nehru Nagar Belgaum - 590010 Karnataka 2. DR. VIJAY C. PUJAR, PEDIATRIC UROLOGIST AND SURGEON KLE SOCIETY'S HOSPITAL AND MEDICAL RESEARCH CENTER Nehru Nagar Belgaum - 590010 Karnataka ...........Petitioner(s) Versus 1. MASTER SHIVARAJ & SHIVAKUMAR R/o. Kalloli Gokak Taluk Belgaum Karnataka ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON'BLE MR. DR. S.M. KANTIKAR, MEMBER For the Petitioner : Mr. Shailesh Madiyal, Advocate For the Respondent : Mr. Manjunath Meled, Advocate Dated : 21 May 2015 ORDER DR. S. M. KANTIKAR, MEMBER
1. The complainant, Master Shivaraj (patient) was diagnosed as a case of undescended testes at the age of six months. Both the testes were located in inguinal ligament measuring about 1.8 x 0.8 cms and 1.7 x 0.9 cms in size. Thereafter, the patient was referred to KLE Society's Hospital/OP 1, for consultation with the OP-2, a Pediatric Surgeon, Dr. Vijay C. Pujar, who advised B/L Orchidopexy surgery, by which the testicles could be brought in each scrotums. On 15.7.2004, after consent, only for Orchidopexy, the OP 2 performed diagnostic laparoscopy and further done B/L inguinal exploration and orchiectomy. Thus, it was alleged that, the OP-2 removed both the testicles of the child, without the consent of the parents. Therefore, normal life of the child got affected. It was negligence committed by OP 2. Therefore, a complaint was filed by the child through his father, before the District Consumer Disputes Redressal Forum, Belgaum (in short District Forum) and prayed for compensation of Rs.15,00,000/-, including the costs of the proceedings.
2. The District Forum allowed the complaint and directed the OPs to pay jointly and severally Rs. 3 lakhs, along with costs of Rs.10,000/- to the complainant.
3. Aggrieved by the order of District Forum, the OP filed an appeal before Karnataka State Consumer Disputes Redressal Commission, Bangalore (in short, 'State Commission'). The said appeal was dismissed. Hence, this revision petition has been filed.
4. We have heard the learned counsel for both the parties. Mr. Shailesh Madiyal, counsel for the petitioner/OP argued that the main issue in the complaint is that OP-2 performed operation, without consent. It was an admitted fact that the OP-2 decided to perform operation of Orchidopexy, but during operation OP-2, took a decision to proceed with orchiectomy. The counsel submitted that proper consent was taken in this regard. Counsel brought our attention towards the consent form. On perusal, we have noted that it was a printed form "Grave Risk Consent" in hand written, mentioned as 'Laparoscopic Orchidopexy '. It does not bear any date and time. Similarly, on the same page, under the heading "Consent to surgery/anesthetics", it is written as follows;
"2. I consent to the perform any of operations and procedures in addition to or different from those now contemplated, whether or not arising from presently unforeseen conditions, which the above named doctor and his associates or assistants may consider necessary or advisable in the course of the operation."
.....xxxx...
"8. The nature and purpose of the operation, possible alternative methods of treatment, the risks involved and the possibility of complications have been fully explained to me. No guarantee or assurance has given by anyone as to the results that may be obtained.
This form was duly signed by father of Shivkumar.
5. In this regard, we have perused the cross examination of the complainant in which he has accepted that, the consent was obtained after explaining the details of 'pros and cons' of the procedure and after operation, the removed testicles were size of Jawar.
6. We have perused the operative notes (page 142) and the findings mentioned are as follows:
Findings B/L Hypoplastic Cord Structure were visualized on tracing 0.2 cms sized soft structure noticed findings were discussed with father and he was briefed regarding the development of malignancy. His formal consent was obtained for orchiectomy. Following father consent orchiectomy was performed incision sutured in layers. Thorough hemostasis achieved & pt withstood the procedure well. After extubation shifted to Recovery."
Also, the histopathology report issued by Dr.P.R.Malur clearly stated as follows:
Site: Atrophic Testis with cord Gross : Received a specimen of testis measuring 0.2. X 0.2 cm. along with spermatic cord measuring 2 cm in length. The specimen consisted of fibroareolar tissue and Iymphnodes.
Microscopy: Sections studies from the tissue submitted as testis and spermatic cord were processed. Sections from spermatic cord revealed obliteration of the lumen with fibrocollegenous tissue, few vascular channels and collagenised tissue. No viable testicular tissue is seen and replaced by dense hyalinised tissue.
Impression Testis with spermatic cord (Excised)-
Tissue resembling spermatic cord with atrophic hyalinised testis."
7. The summary sheet of OP/Hospital maintained by OP 2, it clearly showed, that Dr. Vijay C. Pujar possesses qualification of M.S., M.Ch.(PGI), is a Consultant Paediatric Urologist & Surgeon. The diagnosis made was B/L undescended impalpable Testis (B/L Atrophic Testis). It is stated as;
Discussion: Both vas and testicular vessels seen traversing through the internal ring on laparoscopy. Exploration of inguinal canal done. Atrophic nubbin testicular tissue less than 2 mm size with hypoplastic cord structures in the canal B/L Orchiectomy done."
Therefore, it proves that the child was having impalpable testicles which were non-functional; it was further confirmed by histopathological diagnosis. The keeping such remnants of testis in the body is not useful, but certainly will be a risk of developing cancer in future life.
8. Regarding HCG test which was not done by OP, the counsel further submitted that, the father of complainant enrolled for the health scheme for the child and preferred treatment to be done under the Yashaswini Scheme only, therefore, he did not agree for Beta HCG test as the said test was not permissible under the said scheme. Hence he refused the admission under private category.
9. The rival arguments advanced on the part of the complainant by counsel Shri Manjunath Meled are that the consent was only for Orchidopexy, but OP-2 performed orchiectomy. Thus, it was deficiency in service and negligence. Therefore, the child has to suffer infertility, throughout his life. As, there was no immediate danger of the cancer to the child, and it was a remote chance of cancer, after 15 to 20 years, if the testicles are not removed, therefore, there was no urgency, but OP 2 performed unnecessary operation, without proper consent and removed the testicles.
10. After thoughtful consideration and taking reference from medical literature, books on Surgery and Pediatric Urology, we have come to the conclusion that the undescended testes, if intra-abdominal, are more prone for developing malignancies in future after 15 to 20 years. After ultrasonology (USG) study, OP-2 decided to perform Orchidopexy operation, but during operation, he found that, the testes which were in the inguinal canal were grossly atrophic about the size of jawar. Hence, instead of keeping them in the inguinal canal, the surgeon took decision to remove i.e. known as orchiectomy. It was on the table decision, it was properly informed to the father of the patient and formal consent of the father was taken. Therefore, the issue of not taking consent of the father, pales into significance.
11. According to several medical literatures, if the undescended testes are atrophic, and are non-functioning, also there is no use to retain those in the abdomen or in the inguinal canal. There is inherent risk of cancer in adult life. Therefore, we are of the view that the doctor took proper decision to remove the atrophic testis( orchiectomy) , for the benefit of the child.
12. A catena of judgments of Hon'ble Supreme Court categorically discussed about what constitutes medical negligence? If the doctor performs his duty with care, it is not negligence. The act of OP-2 is not a negligent act.
We take reliance from the judgment of Hon'ble Supreme Court in the case "Charan Singh V. Healing Touch Hospital and Others, (2000) 7 SCC 668 wherein it was held that, Where two choices are available, exercise of one, which is the best in the judgment of the doctor unless proved to the contrary does not amount negligence.
Negligence cannot be inferred when a surgeon of higher education, higher experience and higher degree of skill adopts a different mode of treatment
13. It should be bone in mind that, adopting different mode of operation is not negligence. In Dr.J.N. Shrivastava V. Rambiharilal and Others AIR 1982 MP 132, where the petitioner's wife who was diagnosed as a case of acute appendicitis was advised to surgical operation of appendectomy. But due to wrong diagnosis, the opposition party performed cholecystectomy without obtaining consent. The court observed as;
"Some discretion must be left to the judgment of the doctor on the spot, so that he uses his common sense, his experience and judgment as far as it suits to the situation of the case. One cannot be guided by what has been written in the text books. Because statements in the textbooks are mere opinion, cannot substitute for the judgment of the surgeon who handles the situation at the spot. Nor can negligence be inferred when a surgeon of higher education, higher experience and higher degree of skill had adopted a different mode of treatment. The court further views that the general practitioner should not be criticized just because some experts disagree. It is important to view the treatment and see matters with the eyes of the attending physician. No medical practitioner was insurer for effecting a cure nor should the court condemn an honest exercise of judgment, even though the other practitioner disagrees with that judgment"
14. Therefore, on the basis of foregoing discussion, we do not find any negligence on the part of opposite parties. Hence, we set aside the order passed by the State Commission and allow this revision petition. Consequently, the complaint is hereby dismissed. There shall be no order as to costs.
......................J J.M. MALIK PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER