State Consumer Disputes Redressal Commission
Jagrut Nagrik vs Dr.Yashesh Dalal on 27 April, 2023
Details DD MM YYYY
Date of Judgment 27 04 2023
Date of Filing 11 06 2012
Duration 16 09 10
IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION
STATE OF GUJARAT
COURT -2
CONSUMER COMPLAINT NO. 27 OF 2012
COMPLAINANTS: [1]. JAGRUT NAGRIK
(A Voluntary Consumer Association through its Managing Trustee Mr. P V
Moorjani)
"Grahak Suraksha Bhavan" Nr. Prerna School,
Opp. LBS, Sangam-Karelibaug Road,
Vadodara.
[2]. SMITABEN M SHAH
C/o. Nandkumar C Sukhadia,
Chokhandi Char Rasta, Main Road,
Vadodara.
V/s.
OPPONENTS: [1]. Dr. YASHESH DALAL
(Consultant Neurosurgeon)
Srushti Hospital, Rajvi Complex,
Akota Garden Char Rasta, Vadodara-20.
[2]. THE ORIENTAL INSURANCE CO. LTD.
3rd Floor, Vanijya Bhavan, Race Course,
Vadodara.
Coram: Mr. R N Mehta, Member
Appearance: Mr. P V Moorjani, Authorised Representative for Complainant Mr. Milan Dudhiya with Mr. Avdhoot Suman Adv. For Opponent 1 Mr. R G Dwivedi, Adv. For Opponent no.2 (Order by Hon'ble Mr. R N Mehta, Member) The complainants named herein above have filed this complaint under Sec. 12 read with Sec.17 of the Consumer Protection Act, 1986 alleging therein deficiency in service, negligence in rendering treatment and also indulged in Unfair Trade Practice on the part of opponents and prayed for Rs.
Rnm cc272012 Page 1 of 223,32,197/- towards reimbursement of expenses incurred for treatment and other expenses, Rs. 5,00,000/- for mental agony and harassment, Rs. 20,00,000/- compensation for terminal pain, shock, suffering and for causing permanent disability, Rs. 10,00,000/- compensation for providing domestic assistant in daily home affairs and also cost of litigation Rs. 50,000/-.
Facts mentioned in Complaint:
[1]. (1.1). The complainant no. 1, a Voluntary Consumer Association (herein after referred as "VCA" for convenience) has filed this complaint for the grievances of Smitaben Shah, complainant no.2 (herein after referred as "Patient" or "Complainant") for whose treatment services of Dr. Yashesh Dalal, a neuro-surgeon doctor (herein after referred as "Doctor" or "Opponent" for convenience) were hired for consideration. It is the case of the complainant that on 18/3/2009, she fell down in bathroom and had injury at back, for which she had consulted Dr. Mahesh Patel, an orthopaedic surgeon. Dr. Patel asked her to get X-ray and prescribed some medicine. Thereafter, complainant approached Dr. Shyamlal Lalchandani, General Surgeon, on 21/3/2009, who advised her for hospitalisation and started with pain killer medicines and also advised for bed rest. During hospitalisation, a call was given to Dr. Suresh Naik, a Neuro Surgeon who advised for MRI which was carried out at Dr. Sumit Shah of Aster Diagnostic & Research Centre. Complainant was given discharge on 31/3/2009 with advice to consult Neuro physician.
(1.2). The complainant thereafter approached Dr. K R Buch, Neuro Physician on 2/4/2009 who after examination advised for surgery and also gave some medicines for immediate relief from pain. The complainant thereafter, as advised, approached opponent doctor on 29/4/2009 where she was advised for immediate surgery. The complainant was admitted and surgery was carried out by the opponent doctor. She was given discharge from the hospital on 12/5/2009 with Discharge summary which shows "L4-L5 decompressive Laminectomy, L4-L5 Discectomy and B/L L4 to S1 root canal Decompression" was carried out. It is also mentioned in this papers that all concerned pathological tests were done, X-ray (PA view) was taken and condition at the time of discharge mentioned as " well ambulatory power in all limbs nr 4 +, no radicular pain, foot drop improved, no fresh C/o.". The complainant averred that opponent doctor was away from station for about two-three days after surgery and returned after discharge. However, during this period, she had unbearable pain in her leg and back and was unable to walk. Since the opponent doctor was not available, his assistant informed the complainant that pain will persist for some time and it will take some time to recover. The said assistant doctor removed stitches and offered discharge from the hospital.
(1.3). The complainant stats that she was unable to move her left leg on 19/5/2009 and for which she had consulted the opponent doctor, who returned back from his tour. It is stated in the Rnm cc272012 Page 2 of 22 complaint that after examination, the opponent doctor informed that surgery is done properly but recovery can take about six months, 12 months or even 2 years. It was explained to complainant that pain is not due to surgery, but due to movement of ball for which he prescribed some medicines. Since, there was no relief from pain, the complainant than consulted Dr. Rajiv Shah, an orthopaedic surgeon, on 1/6/2009. It is averred in the complaint that the said doctor informed her that pain is not because of movement of ball, but, because surgery was carried out negligently. He then advised for MRI which was carried out and after examination of report, he opined that there is septic at operated site and because of it leg is paralysed. According to him, medicines and injection may give relief but if not improved, surgery would be required to remove infection. He then advised to consult Dr. Manoj Desai (Orthopaedic Surgeon). Accordingly, complainant had consulted Dr. Manoj Desai of Arpan Spine &Fracture Clinic on 4/6/2009. The said Dr. Desai examined her and found that she had high blood sugar, infection at operative site which was treated with antibiotic medicines, injections and given discharge on 1/7/2009. The complainant states that she was again admitted on 20/7/2009 by Dr. Desai and surgery was done on 27/7/2009 and thereafter given discharge on 18/8/2009. The complainant alleges that though after surgery, there was little improvement, pain did not subside. The complainant was under constant follow up treatment with Dr. Desai and had undergone various pathological and diagnostic tests. It is alleged that this condition of the complainant was only due to improper and unskilled surgery carried out by the opponent doctor. It is specifically alleged that all these happened due to ignorance of high blood sugar that was observed in pathological tests before surgery on 29/4/2009. The complainant also had to consult Dr. Bharat Dave of Ahmedabad on 16/3/2011, after examination, said doctor advised for X-ray and MRI which were carried out at Infocus Diagnostics. The reports thereof were shown to Dr. Bharat Dave, who then advised for surgery which was done on 24/3/2011. The Dr. Bharat Dave noted in his operative note as "A single lock monoscrew, 5.5 mm rod and kidney cage were inserted in the spine". The complainant continued with follow up at Dr. Bharat Dave till 5/6/2012. It is alleged that the opponent doctor remained careless and ignored high blood sugar which led to infection and resultantly she had to suffer and undergo multiple surgeries. She had to incur huge expenditure. Being aggrieved by the said attitude of the opponent doctor, the complainant approached VCA, who advised to obtain expert opinion from Dr. P N Tiwari for which indoor hospitalisation records were asked. The complainant then wrote letter to opponent doctor and demanded indoor hospitalisation record and in reply the opponent sent some papers which were given to Dr. Tiwari. After studying papers, Dr. Tiwari gave opinion that the opponent doctor failed to treat high blood sugar observed during random blood test. The Opponent did not carried out detail examination to confirm sugar level and failed to take any action to control it before surgery. The opponent performed surgery straight away which resulted in infection at operative site. Dr. Tiwari also further observed that the Rnm cc272012 Page 3 of 22 opponent doctor neither performed MRI or CT Scan before and after spine surgery nor advised in follow up. The opponent falsely issued Discharge Card certifying as "Fully Cured". According to complainant, she had then approached VCA, who issued legal notice to opponent doctor and called upon to settle the issue to which there was no reply from the opponent. It is also alleged that she was then examined by doctors as SSG hospital and certified that she had 25 % permanent disability. It is in these circumstances, complainant has claimed for reimbursement of expenditure and also asked for compensation as mentioned above.
Defence of Opponent:
[2]. (2.1). This Commission had ordered to issue notice on 10/9/2012 which was received by the opponent doctor and appeared through advocate and sought time to file reply. On 12/3/2014, the opponent filed reply and also moved an application to join insurance company as doctor is indemnified under professional indemnity policy. This Commission issued show cause notice to proposed party. In reply, it is contended that complaint is absolutely false, frivolous and vexatious since the complainants have suppressed important material facts and deliberately made false allegations which is fraud in law. The complainants have made bald and vague allegations and misused benevolent law to cause harassment to medical professional. It is categorically contended that complaint is barred by limitation as Sec. 24 A which provides limitation for 2 years. It is contended that present complaint was filed in 2012 for alleged negligence during surgery in 2009. It is also contended that complainant has avoided follow up treatment which was much necessary in this case of neuro surgery and dishonestly suppressed such information in the complaint. It is also contended that despite instruction for follow up, the complainant did not attended and chosen voluntarily to discontinue with the treatment and now claiming negligence. It is also contended that though it was well within the knowledge that she had undergone neurosurgery, unilaterally chosen services of orthopaedic doctors who was not even competent to understand nature of ailment from which complainant was suffering. The complainant has filed this complaint after period of more than 2 years and in the meantime consulted three more doctors. It is stated therein that Dr. Buch, being neuro-physician examined patient and referred to neurosurgeon (Opponent) itself shows that it requires specific competence and excellence in subject. After surgery, the complainant had voluntarily chosen services of orthopaedic surgeon for alleged complication in neurosurgery. It is also stated that complainant herself has mentioned in the complaint that it was explained to her that it will take about six months though she did not completed follow-up period and stopped coming to opponent. Thus, complainant has not afforded opportunity to opponent to render adequate treatment.Rnm cc272012 Page 4 of 22
(2.2). It is stated by the opponent that when complainant patient came to opponent she had left leg foot drop disability and during treatment with Dr. Manoj Desai, it has been observed by Dr. Desai that there was no neuro deficit which confirms that complainant has no disability at all. It is clarified that physical pain in the leg is having a cause and result relationship with the neurological status of spinal nerves cord and hence thus the note of Dr. Desai confirming absence of any neurological deficits proves completely careful and committed surgery and services rendered by the opponent doctor. The opponent doctor stated that the observation made by Dr. Desai needs appreciation with reference to the fact and purpose of surgery caused by the opponent as the said surgery is carried out to decompress the spinal nerve and save it from further damage on account of compression. That surgery as caused by the opponent is therefore proved to be most successful as the pre-surgery compression and consequential nerve dysfunction in terms of foot drop is cured / relieved on account of expertly carried out de- compression of spinal nerve, resulting into relief from the nerve pain and regain nerve function as rightly observed by Dr. Manoj Desai in his notes. It is denied that there is any single document as proof of alleged infective discitis because there is no clinical and / or pathological process or report even remotely indicating any alleged infection. It is also clarified that treatment papers of the opponent suggests and confirms that all throughout surgical treatment, good broad spectrum antibiotic has been given as per surgical principles before and after surgery till stitches were removed to prevent infection. It is stated that nervous system, its intra and interconnectivity with different parts of the body and concept of neuro-surgery inter alia includes the surgery in respect of the entire neurological mechanism in the human body which consists of the brain which is integrally connected and controlling the whole human body, activities, functions through spinal cord and nerves thereof which are passing through located through and in vertebral column. It is stated that when patient came to opponent doctor she had ailment which is known as spinal nerve route compression by spondylotic (disc prolapsed) disease.
(2.3). The opponent doctor has explained in detail about ailment of complainant in following words: "That complainant had complained about physical pain in the leg rather there was a foot drop of the left leg of the complainant which was identified as the resultant effect of the basic cause attributable to the compression of a spinal nerve which is a part of central nervous system. The compression on the nerve which was connecting the leg to the brain was subjected to a compression attributable to one of the disk forming part of vertebral column having slipped from its original / proper position/ status. That because one of such disc loses its place /space, naturally it causes compression on the nerve situated adjacent thereto. This straightaway affect the normal and free function of a particular nerve where on or near to which a particular disc has slipped as mentioned above. That upon such diagnosis, the opponent has carried out the suitable treatment which included a surgery to remove the offending disc fragments have been carried out. This entire process of treatment /surgery is essentially focused and connected with the existence / operation and / or position of the nerve. Thus, though the nerves are passing through the vertebral column, fundamentally and comprehensively the nature of treatment and surgery is essentially of nervous system requiring a specialised expertise, knowledge and the nature/ subject specific qualification and training in the neuro science. The nerves which are passing through the vertebral column and their original and natural status controls and maintains the function of Rnm cc272012 Page 5 of 22 the limbs /part of the body. The operation comfort and trouble free function of various limbs such as legs, hands etc essentially being connected with nervous system which carries communicate the commands sent / received by and from the brain, naturally such transmission of smooth commands and the connectivity of spinal nerves with such body parts and their functions when suffer disturbance either on account of compression or pressure, naturally the supply of necessary nervous command and/ or connectivity results in straight adverse effect on the respective limbs with which the relevant nerve is connected having suffered the compression or pressure attributable to or which arises out of the dislocation and / or disturbance in the protective structure of vertebra/ inter-vertebral disc / spinal cavity. When patient was referred to opponent, she already had the left partial foot drop disability which confirms that the compression of one of the nerve passing through spinal cord was so adversely affected as it has resulted in the loss of life connectivity with a left leg."
The opponent has therefore denied that there was any deficiency in service or negligence in any manner. It is contended that alleged disability certificate belatedly processed and obtained on 17/5/2012 almost after three years after the availing of opponent‟s treatment and even such certificate which is issued by SSG hospital is issued after 2 subsequent treatments of 2 orthopaedic doctors and therefore it has no apparent or proximate relationship with the treatment of opponent and it cannot be considered at all. It is submitted that Dr. Manoj Desai had given treatment after the treatment of opponent and medical papers of Dr. Desai proves the absence of any neurological deficit / disability after opponent‟s treatment.
(2.4). It is submitted that the opponent is one of few Neurosurgeon having obtained the distinctly reputed degree i.e. M.S., M.Ch. in neurosurgery from internationally reputed prestigious and Institute of National Importance, "Neuroscience Institute of India" i.e. Sree Chitra Tirunal Institute of Medical Science and Technology. It is submitted that because the nature of complainant‟s medical requirement was possible to be effectively provided only by the opponent in view of his specialised expertise and experience and that is why the neuro- physician referred her to opponent. She might have history of fall in bathroom but treatment by orthopaedic or general surgeon could not be of any assistance because irrelevant medical services which aggravated situation her ailment. Therefore, unilateral decision of stopping follow up treatment after surgery and carrying out unnecessary treatment through medical professional having no experience in neurosurgery misunderstood by the complainant patient. It is submitted that the complainant patient do not understands technical meaning of L4-L5 root canal decompression and therefore expects ability to walk in a day or two after the operation especially when the ailment involves nervous system and its location, status etc. The complainant has deliberately suppressed that she was given understanding and was given set of instructions at the time of discharge from the hospital. The complainant has alleged absence of the opponent is nothing but bogus. It is denied that complainant was having serious ailment or pain as alleged. However, it is true that when complainant came and consult the opponent and opponent advised her specific post surgery follow up and the regular medical check-up as such post-surgery observation and continuous monitoring is most pre-requisite / essential and compulsory for achieving the wholesome and comprehensive result from out of the surgery Rnm cc272012 Page 6 of 22 caused by the opponent. But the complainant failed to meet with such compulsory course of treatment and monitoring and though suppressed information from the Commission. It is submitted that Dr. Tiwari, holding only basic qualification of MBBS, and not having any knowledge in neuro surgery not competent to opine on the action of the opponent doctor. As such, the opponent did carefully with all commitment examined and advised suitable medicinal and such other post-surgery prescriptions and suggestions with a view to enhance the post- surgery recovery process but unfortunately complainant appears to have either not followed or insulted medical advice communicated and prescribed by the opponent doctor. It is denied that Dr. Rajiv Shah has opined that surgery was done negligently and complainant has been called upon to prove such fact. It is denied that there was septic or alleged state of paralysed leg. It is submitted that allegation of so called infection at operative site are fabricated or may be prompted by a vice of professional jealousy without having truth or substance therein. It is submitted that neither Dr. Rajiv Shah nor Dr. Manoj Desai has professional qualification or recognised competence to manage or advise the neurosurgery. It is submitted that both these doctors are orthopaedic surgeons and they are not adequately trained or exposed to the surgery involving cord and nerves inside which passes through the bone structure of spine. It is submitted that in the instant case, the cord and nerves inside and its status /position and the pressure thereon s result of dislocation of disc from its original position and the same was the cause requiring skilled neurosurgeon to reduce and remove such pressure which was neither subject matter of area of orthopaedic surgeon nor skill of those doctors. It is categorically denied that complainant patient had any high blood sugar which caused infection at the site as it alleged. It is submitted that there is no evidence that the said doctors have given any treatment to overcome so called infection at site. The documents produced by the complainant do not suggest that at any point of time, the doctors have carried out any culture report or have done biopsy from disc etc. Therefore, treatment provided by the said doctors, not pertaining to cure alleged discitis. It is submitted that first X-ray done at the advice of Dr. Desai after surgery of opponent do not confirms instability which proves that surgery done by the opponent yielded reasonable success and not resulted in any harm as it alleged. It is submitted that just few days after the above referred X-ray, second set of X-ray done by Dr. (Mrs) Sharmistha Desai who happened to be wife of Dr. Manoj Desai and reported alleged instability is nothing but fabrication of document to gain commercially. It is absolutely false to allege that complainant paid the alleged amount to some doctors alleged to have treated something. It is denied that admission to Dr. Manoj Desai was necessitated and submitted that allegation as to pain and improvement thereafter is bogus. It is absolutely false, illegal and malicious to allege that operation carried out by the opponent was in any way allegedly either unskilled or improper. It is denied that complainant had to undergo treatment of other doctors because of alleged negligence on the part of the opponent. It is submitted that the opponent had consulted Dr. Rnm cc272012 Page 7 of 22 Nimesh Chauhan, an expert on diabetes before surgery for the purpose of preoperative assessment, suitability of blood sugar and all other biological parameters. The opponent has maintained due precaution of giving good antibiotic coverage to the complainant.
(2.5). The medical record of the complainant shows that she had random blood sugar at 147 which is within the permissible lab limit of 10 % +/- and therefore it cannot be diagnosed as diabetes however, it is requiring diet control which is manageable. It is in these circumstances, allegations that diabetes, not given antibiotic cover etc is denied. It is submitted that for the surgical purposes protective antibiotic coverage was provided by the opponent. It is also submitted that treatment given by Dr. Bharat Dave was also irrelevant and denied to have necessitated due to any fault on the part of the opponent. It is submitted that in the complaint, even the complainant admit that despite treatment by Dr. Dave, Dr. Desai or Dr. Shah, are not able to remove /manage alleged pain. It is denied that weakness or inability to walk had any privity with the surgery carried out by the opponent. It is submitted that report of so called expert Dr. Tiwari is nothing but reproduction of legal provisions rather than analysing medical material pertaining to neurosurgery and complications arising there from. In the circumstances, it is of no use and fabricated document and cannot be relied upon. It is denied that complainant was discharged from hospital without proper confirmation or complete treatment as alleged. It is submitted that the opponent is highly experienced and have carried out more than 3000 surgeries in the field of neurology. It is denied that medical certificate of disability have any relevance or privity with the surgery and treatment caused by the opponent. It is denied that there was any cause of action for the complainant to initiate legal proceedings against the present opponent. In the instant case, the opponent has identified the area of compression in the spinal nerve of complainant and successfully released / removed the pressure /compression that was exists on the spinal nerve before surgery. It is submitted that because prior to surgery, the said nerve remained under pressure, naturally after release of pressure, the natural cycle of healing and partial restoration of nerve to its original state takes reasonable time of healing which is supported by medication and some exercise which depends on the response of the body and overall chemistry of the patient. It is therefore the complainant was advised that it will take time to recover completely. It is submitted that to facilitate and encourage post surgery follow up care, the opponent never charges any patient including the complainant for follow up consultation visits for life time. This practice has been maintained since the beginning of practice i.e. 1997.
(2.6). It is submitted that in every surgery including spine surgery, inflammation is a natural sequel. MRI relied upon by the complainant shows inflammatory changes in disc space which is a routine feature after each and every case of spine surgery and therefore it is absolutely false to recognise it as infective discitis. Radiologist has not labelled it as infective. It is submitted Rnm cc272012 Page 8 of 22 that MRI cannot differentiate inflammation and infection in disc space. It is submitted further that increased ESR/ CRP does not diagnose it as infective discitis. To prove discitis no biopsy or culture has been carried out from disc space. Thus diagnosis of infective discitis was false and fabricated. It is also submitted further that it is well accepted principle in medical science that in presence of infection no implants can be inserted. Dr. Dave had fixed screw and put rod to fix itself suggests that there was no infection as it alleged. It is submitted that report dated 1/6/2009 done by Baroda Imaging Centre suggests that there is no instability at all in the operated vertebra whereas report prepared by wife of Dr. Desai just three days thereafter suggests mild disc instability speaks so many things. Thus in short, the entire complaint is filed because of misdirection and as such there was no negligence or deficiency in service as it alleged in the complaint and therefore prayed for dismissal of complaint with heavy cost. The opponent insurer has adopted reply of the opponent. The opponent has also moved an application to produce on record indoor case papers and consent note which was permitted and therefore placed on record.
[3]. The complainant has filed affidavit in rejoinder which is nothing but reiteration of the facts stated in complaint. The opponent has placed on record experts‟ opinion of Dr. Jwalit Sheth, a neurosurgeon, Dr. Deeplal R Kumar, Pathologist, Dr.V S Shah of Baroda Imaging Centre and extract of medical literature as to interpretation of diagnostic tests. Complainant has also filed reply to aforesaid expert‟s opinion and also filed an additional expert opinion given by Dr. Anupamkumar Bansal who is expert in forensic medicines. Final opinion of Dr. Bansal (page
272) reads as under:
"All admission case papers were not handed over to the relatives by opponent no.1, as many papers are missing (or investigations were not performed at all) which clearly signifies that this a clear cut case of medical negligence on behalf of Shrishti Hospital, Dr. Yashesh Dalal and other staff members of hospital. For the same reasons few case sheets were not provided intentionally. Hence from the above it is very much clear that there is gross negligence / vicarious liability of the operating doctor which land the patient in costly and mental stressing revision surgeries and finally left her with permanent 25 % disability, patient‟s fault was just that she blind folded trusted the doctor and hospital staff."
The expert Dr. P N Tiwari‟s report is produced at page 137 to 140 wherein conclusion drawn by the said expert as under:
"Dr. Yashesh Dalal being a very senior and qualified Neuro-Surgeon of Baroda, failed to note high blood sugar in random blood test of his patient.
He failed to get detail tests to see the level of blood sugar and its control and went for operation which he planned on the day of admission in his hospital. This had resulted in setting of infection at operation site at lumber region (L4-L5). Also neither MRI nor CT Scan after and before spine surgery operation nor advised in follow up.
He also issued Discharge Certificate as "Fully Cured".
Hence, treating Dr. Yashesh Dalal was totally negligent in his act of treatment by not detecting high blood sugar in his patient which resulted further infection at the site of operation and loss of maximum finance and mental agony.
Rnm cc272012 Page 9 of 22Hence, not detecting high blood sugar was a proximate cause of damage in his act of treatment process."
It is necessary to note that complainant has not examined Dr. Tiwari as witness before this Commission. Thus, the complainant relied upon the opinions of expert and claimed relief for the alleged negligence and resultant damage as prayed above.
Evidence:
[4]. (4.1). Cross examination of Smitaben Shah (Pw-1): "It is true that I am not aware about medical science pertaining to my treatment. In reply to your question as to complaint drafted in English at the instance of complainant no.1 or you yourself suggested it, I say that I have given complaint in Gujarati. I had given complaint in Gujarati and thereafter it was translated in English and obtained my signature thereon. Initially I had consulted Dr. Shamlal Lalchandani, where he had called Dr. Suresh Nayak and had started treatment. However, there was no improvement and therefore consulted Dr. K R Buch, who prescribed medicines for 15 days and he then advised for surgery and for which he referred to Dr. Yashesh Dalal. I am aware that in medical science, orthopaedic and Neuroscience both are different. It is true that Dr. K R Buch is Neuro-physician. It is true that I am not aware about Decompressive Laminectomy or root canal decompression. It is also true that Dr. Manoj Desai, Dr. Rajiv Shah and Dr. Bharat Dave are not orthopaedic surgeon. She volunteers that they are doctors for spine treatment. Now witness says that Dr. Manoj Desai is M S orthopaedic surgeon but doing spine treatment. In reply to your question, whether I have studied case papers pertaining to pre and post operative treatment by Dr. Dalal, I say that since it is in English I do not understand it. It is true that I have not inquired from my relatives or persons known to me about case papers of treatment given by Dr. Dalal. In reply to your question as to there is no reference in the case papers of Dr. Rajiv Shah that there was negligence in treatment or surgery as alleged in my complaint at para 10, I say that when we had consulted Dr. Rajiv Shah he had informed us that there is defect in surgery but nothing was given in writing. It is true that only after study in medical science, defect in surgical procedure can be known. In reply to your question as to why there is no reference in my complaint as to preoperative tests or treatment procedure carried out by Dr. Dalal, I say that I am not aware about the same. It is true that I am aware that preoperative treatments were carried out by Dr. Dalal has relation with my treatment. It is true that I am aware that even post-surgery treatment and procedure also has relation with my treatment. It is true that I do not have any written proof to show that Dr. Dalal has refused to meet/consult him after treatment.... It is true that after treatment of Dr. Dalal I had consulted Dr. Rajiv Shah and thereafter I had never gone to Dr. Dalal. It is true that Dr. Dalal had informed that treatment / recovery may take period of six months. In reply to your question as to it was my decision or decided by family members to consult Dr. Rajiv Shah, Dr. Manoj Desai or Dr. Bharat Dave after treatment of Dr. Dalal, I say that when I had consulted Dr. Dalal after surgery for pain, he informed me that surgery is proper but it is due to ball and advised me to consult Dr. Rajiv Shah. Dr. Rajiv Shah asked me for MRI and after seeing MRI, he said there is no problem with ball but it is due to septic at operative site. Witness volunteered that to decision to consult different doctors was unanimously decided by family members. It is true that what tests were carried out or treatment given by Dr. Rajiv Shah, Dr. Manoj Desai or Dr. Bharat Dave pertaining to septic I neither am aware nor studied. It is true that what surgery Dr. Bharat Dave did that I am not aware. I am aware about bone-grafting. It is true that Dr. Manoj Desai had done bone grafting. It is true that Dr. Bharat Dave had done platting. It is true that I am aware about treatment for septic or infection. Witness volunteers antibiotic injections were given for about a month to rule out infection and discharge was given thereafter and second surgery was done thereafter. In reply to your question as to why there is no report or papers regarding biopsy carried out by Dr. Manoj Desai, I say that it might have been left out inadvertently and I will put it on record if I will find it. It is true that bone grafting and platting procedure is pertaining to orthopaedic surgery. It is true that I have never consulted any other neurosurgeon after Dr. Dalal‟s surgery. It is true that I have not seen papers pertaining to my blood sugar and its treatment given by Dr. Dalal during surgery. It is true that I do not know reasons why blood sugar increases. It is true that I have not studied case papers prepared by Dr. Desai after treatment. It is true that Dr. Tiwari‟s reference was given to me by complainant no.1. The address of Dr. Tiwari was given by the complainant no.1 and thereafter I had gone to him with my brother, shown case papers and Dr. Tiwari had given report from the case papers. It is true that it has never happened that Dr. Tiwari had asked papers and we have not supplied it.... It is true that until date I have not consulted any independent doctor (Neurosurgeon?) after treatment of Dr. Dalal in 2009 to the year 2012, when I have receive medical certificate. It is true that in my complaint, technical words used pertaining to medical science has been written by complainant no.1 and I am not aware about the same. It is true that Dr. Bansal was also contacted through complainant no.1. It is true that I am not aware what is medical science and neuroscience. Witness volunteers that in neuro science doctor separates nerves through Rnm cc272012 Page 10 of 22 surgery. I am not aware about degree of Dr. Bansal. It is true that in this complaint, I have produced all papers that were required. It is not true that no other surgery was carried out to correct surgery done by Dr. Dalal. It is true that no papers or opinion produced on record pertaining to another surgery done to correct surgery done by Dr. Dalal".
(4.2). Important statements made by Dr. Anupamkumar Bansal (Pw-2 page 304) in cross examination:
"It is true that Medico Legal Consultant is not a post or position prescribed under any rule of Medical Council of India...It is true that I am not awarded any degree or post of Medico Legal Consultant by any University or any other institute. Witness volunteers that Medico legal Consultant is known concept in Forensic Medicine attached to Forensic medicine subject...It is not true that forensic medicine and neuroscience or neurosurgery are separate subjects...It is true that we cannot practice in neuro science or neurosurgery, on the basis of what we have learnt as part of our academic training, while studying forensic medicine. It is true that spinal cord has importance in neuro science or neuro surgery. It is true that spinal cord‟s one end is attached to brain and from another end it passes commands to different part of body to do physical activities. It is true that spinal cord passes through vertebra. It is true that if there is any problem in spinal cord, it can cause defects in functioning of body parts....It is true that in my professional career, I had no occasion to work as neuro physician or neuro surgeon. It is true that I have not participated even as guest of a doctor rendering treatment in neuroscience. It is true that I have given my opinion on the basis of documents supplied to me. It is true that complainant‟s representative provided me treatment papers. It is true that while giving opinion from the treatment provided to me, I did not considered it necessary to consult /discuss with Dr. Manoj Desai, Dr. Bharat Dave or Dr. Yashesh Dalal, the opponent no.1 herein for any further detail information...It is true that medical science is consists of different disciplines according to different functions of body parts like forensic medicine, neuroscience, orthopaedic etc. It is true that forensic science is has relations with working on accidental injury or legal or court proceedings arising out of injury. Witness volunteers that it also has relation with medical negligence....In reply to your question as to where I have worked after obtaining degree, I say that after degree I have worked at three institutes. (1). Forensic Medicine Department of Vadilal Hospital, Ahmedabad (2) Forensic Medicine Department of Civil Hospital, Valsad and (3) Forensic Medicine department of Parul Medical College, Vadodara. It is true that I have not referred textbook on neuro science or neuro surgery in my affidavit because I did it on the basis of documents I have referred and also I did not consider it necessary to do so. It is true that my opinion based on academic parts of medical science. A witness volunteer that this branch has relation with forensic medicine science....It is true that representative of this complainant asked me to give opinion as an expert in this matter. Witness volunteers that I believe that complainant is relative. Now witness volunteers that complainant no.2 asked me to give opinion. It is true that I had no relation with complainant no.2. It is true that complainant no.2 might have approached me after obtaining my contact through complainant no.1....It is true that before giving opinion, I have studied all papers pertaining to treatment. Witness volunteers that all these documents provided by complainant. It is true that I am not aware whether there are any other documents other then complainant supplied to me. I have not studied it. It is true that I have asked for all papers concerning this complaint before giving opinion. It is true that I have not received all these papers....It is true that I am not aware that Dr. Sheth and Dr. Deeplal have relation with this complaint. It is true that I do not know that Dr. Viren Shah also had relation with this complaint. It is true that I am aware that all three doctors referred above have given their opinions in this complaint. In reply to your question, whether I had considered it necessary to have consultation / discussion with these three doctors to get more information before giving opinion, my answer is no....It is true that spinal cord and brain has relation with entire nervous system spread in body. It is true that if there is any defect in nervous system, it affects different organs of body.... It is true that inflammation and infection both are different conditions. It is true that if pus has been found in some part of body than it is called infection. Witness volunteers that in case of inflammation, swelling is observed. It is true that from the local site where infection has been observed, taking pus and referring it for culture analysis is a part of treatment for infection. Witness volunteers that it is not compulsory... It is true that during my professional career, I had no occasion to do neuro surgery or to work for post- surgery treatment...It is true that I have not studied minutely case papers regarding Pre and Post operative treatment rendered by Dr. Yashesh Dalal because the same were not with me. It is true that had it been with me it would have affected my opinion...It is true that in my expert opinion at page 3, para 3, I have mentioned that doctor has given limited treatment properly on admission which includes investigation reports, but there were no papers to show that patient was fit for surgery. It is true that complainant has produced documents at page 25 to 42 and I have not analysed those documents because I did not though it proper...I am aware of word prophylaxes which means a care or treatment to be taken Rnm cc272012 Page 11 of 22 is anticipation of a sick or likely to be sick patient....It is true that post operative prophylaxes has relationship with antibiotics. It is true that in post operative prophylaxes, antibiotics are being used to control or to minimise infection. It is true that Dr. Yashesh Dalal had administered antibiotics to patient and I had seen those papers. In reply to your question as to what are medical standards regarding pre- operative and post operative administration of antibiotics, I say that I am aware of it. Witness volunteers that pre-operative and post operatively antibiotics are being administered considering the types and growth of bacteria whereas in post operative cases, mainly broad spectrum antibiotics are being administered. It is true that antibiotics administered minimum for three days. It is true that if a doctor administers antibiotics for more than three days during post operative treatment, it is considered as reasonable treatment. In reply to your question as to whether I have studied about types of medicines prescribed by Dr. Yashesh Dalal which is mentioned at page 37 & 54 in British pharmacopeia or Indian pharmacopeia, I say yes. In reply to your question why I have not mentioned in my affidavit this fact, I say that it is not mentioned in my affidavit because in both prescriptions it is mentioned that it is antibiotics and anti-inflammatory....In reply to your question as to whether I have studied in medical science, after operation, up to what period antibiotics should be given, I say that according to medical science, antibiotics can be given up to seven days. For how many days, Dr. Yashesh Dalal administered antibiotics and whether I have referred those documents and mentioned in my opinion, I say that it is not mentioned in my opinion because it is already mentioned in prescription. It is true that when a doctor administers antibiotics for seven days after operation, it is considered fair and reasonable treatment given by doctor. Witness volunteers that in case if patient had problem even after completion of course of antibiotic, it can be given extended and it is also a part of duty of a doctor.....I have seen case papers produced pertaining to post operative treatment. In reply to your question, why I have not mentioned regarding this in my opinion, I say that wherever I found negligence of doctor I have mentioned it but when I find it usual or proper, I have not mentioned it in report. It is true that from the case papers of post operative treatment, I found it normal and therefore I have not mentioned it in my report...It is true that Dr. Desai and Dr. Bharat Dave, both are orthopaedic surgeons and not neuro-surgeon. It is true that I have not studied whether complainant had consulted Dr. Dalal after operation or not and what had happened thereafter I have not inquired. It is true that after surgery, consultation with surgeon and follow advice and to comply his instruction is necessary for treatment... It is true that while giving my opinion, I have seen ECG, X-ray chest, Blood investigation reports, Physician report as to Preoperative treatment. It is true that whenever I find it proper, I have not mentioned in my report. It is true that papers regarding pre and post operative treatment rendered by Dr. Dalal were having serious effects and importance for my opinion. It is true that without studying important case papers, whether available or not, if expert renders opinion than such opinion may be defective...It is true that a neuro surgeon, having special knowledge in neuro-science can throw more light on spine instability. It is true that Dr. Manoj Desai had carried out bone grafting. It is true that Dr. Bharat Dave removed bone grafting and done platting. It is true that both these procedure had relations with stability of vertebra. It is true that I have not studied medical books on infective discitis...I have not seen any case paper regarding procedure carried out by Dr. Desai or Dr. Dave whether infection exist or not. Witness volunteers that there is no doubt that Dr. Manoj Desai has mentioned in his case papers about ailment of infective discitis. It is true that I have not seen any papers, analytical textbook, supporting evidence etc for opinion of Dr. Manoj Desai for having infection. Witness volunteers that MRI report dt.1/6/2009 of Baroda Imagic Centre has described possibilities of infective discitis. It is true that MRI shows only image of physical condition but to know its reason pathological test necessitated some times. It is true those whether pathological test is require or not is a clinical decision based on experiences of doctor. It is true that merely on suspicion treatment cannot be given. It is true that I am not aware what discitis surgery is. It is true that before filing affidavit and giving opinion, I did not consider it proper to study on discitis surgery. It is true that in discitis surgery, infection portion is being explored. It is true that liquid is being extracted from infected portion and sent for biopsy or for culture to know whether infection exists or not....It is true that I have not seen any case papers of treatment procedure done by Dr. Manoj Desai and Dr. Bharat Dave and I have not enquired for the same...I am not aware about spine instabilities. It is true that while giving opinion, I have not taken assistance either from neuro surgeon or neuro physician or examined patient physically...I have studied minutely the case papers of Dr. Manoj Desai. It is true that in this case paper, there is reference of word neuro normal. It is true that this neuro normal has not been referred in my report or affidavit despite it has grave concern with the subject because I did not thought it fit....It is true that insufficient or improper supply of blood near site of surgery may be a cause of infection. Witness volunteers that it may be because improper surgery or inadequate examination of patient like diabetes etc was not examined. It is true that I have not studied case papers produced on record regarding complainant‟s treatment rendered by Dr. Dalal...It is true Rnm cc272012 Page 12 of 22 that Dr. Dalal has carried out blood and urine tests prior to surgery and complainant had no diabetes according to reports"
(4.3). Important statements made by Dr. Yashesh Dalal in his cross examination (RW-1 Page 330) "I am MBBS, M.S., M.Ch (Neurosurgery). It is true that I have attained above qualification in the year 1996. It is true that I have started my private practice as neuro surgeon at Vadodara in 1997. It is true that according to rules, permission of Municipal Corporation is necessary to do private practice which I am having and ready to produce it on record if necessary.... It is true that record shows patient Smitaben was admitted in my hospital on 29/4/2009. It is true that I had examined her. It is true that when patient comes to our hospital for treatment, we enquire past history and it is recorded in indoor case papers. It is not true that when Smitaben came to my hospital on 29/4/2009, we advised her for surgery on 30/4/2009. Witness volunteered that advice for surgery was given when she came to us for OPD treatment. It is true that when she came to us on 29/4/2009, her necessary tests and investigations were carried out. It is true that the said tests were carried out through Deep Pathological laboratory. It is true that patient‟s pathological reports were normal except random blood sugar which was borderline but within range of plus / minus 10 %. In reply to your question on what basis I say that random blood sugar is acceptable plus / minus 10 %, I say that it is acceptable standard in medical science and I am ready to produce medical literature if I am asked for. It is true that page 27 is biological chemical test report wherein blood sugar is shown as 147.20. Usually it should be 140 and I have seen the said report. It is true that if random blood sugar is 147.20 it cannot be said patient is borderline diabetic but it is a report only. It is true that during the course of day I have carried out random blood sugar repeatedly. If I am asked whether I have started treatment for diabetes when random blood sugar was reported 147.20 in test report, I say that in such circumstances, no medicines required to be prescribed, but to be on safer side repeated random blood sugar was taken and to avoid infection after surgery, antibiotics were administered for 14 days instead of two days. It is true that patient was operated for Lumber Spine on 30/4/2009. It is true that consent of patient is taken before surgery. Witness volunteers that consent is required even when patient is admitted in hospital. It is true that in this case patient‟s consent was taken prior to surgery. It is true that consent and informed consent both are part of consent in medical terms. It is true that in this case, patient was explained pros and cons of surgery which she understood and her relatives had signed consent form. It is true that patient was adult. If I am asked whether her consent was necessary or not, I say that either patient or close relative‟s signature is necessary. It is true that patient or relative who undertakes responsibility, signature of any one is necessary. It is not true that if patient is mentally and physically capable consent of patient is must witness volunteers that usually before surgery patient is mentally disturbed and therefore signature of close relative is being taken in consent form. If I am asked that physician‟s check up was necessary with reference to what I have stated in para 5-A especially last portion, I say that case specific it is necessary and in this case it has been done. It is true that in this case physician‟s report was taken from Dr. Nimesh Chauhan.... It is true that patient was discharged from my hospital on 12/5/2009. It is true that patient was kept hospitalised for about 13 days after surgery. Witness volunteers that ordinarily discharge can be given after 48 hours after surgery but for more better care and caution, patient was kept for 13 days... it is not true that I am not sure at present, whether I was available in Vadodara city after surgery on 30/4/2009 till patient discharged from hospital. If I am asked how many other doctors in my hospital having similar qualification like me, I say that none but it is mutual understanding between neurosurgeons in Vadodara city that in absence of any one, other doctors provides cooperation to each other. It is true that page 79 which is shown to me is a report of MRI (Scan of Lumber Spine) of Baroda Imaging Centre dated 1/6/2009 in which last paragraph of report is opinion of doctor below word "impression" reads as "Infective changes at L4-L5 level with arachonditi, as described above".... It is true that Dr. Manoj Desai has mentioned in diagnosis "infective describe after operation 1 month" however witness volunteers that it is opinion of Dr. Manoj Desai but discharge summary is incomplete."
SUBMISSIONS [5]. On the basis of aforesaid oral evidence and documents on record, parties have made following submissions.
(5.1). Mr. Moorjani, for the complainant submitted that patient had history of fall in bathroom and consulted many doctors but at last, Dr. K R Buch referred her to opponent doctor Rnm cc272012 Page 13 of 22 and she was advised for surgery is not in dispute. It is also not in dispute that during pre- operative test, random blood sugar was reported 147.20 and opponent doctor did surgery on 30/4/2009 is not in dispute. He submits that prior to surgery no informed consent was taken. It is submitted that doctor has described surgical procedure as "L4 and L5 decompressive Laminectomy, L4-5 Lt. Discectomy and b/l L4 to S1 root canal Decompression" and while giving discharge condition noted as "well, ambulatory, power in all limbs nr 4 +. No ridiculer pain, foot drop improved. No fresh C/o". Mr. Moorjani submits that doctor was away from city and returned after discharge only. Complaints of patient during hospitalisation were not taken care of and she had unbearable pain and was unable to walk. Even at the time of discharge, assistant doctor had removed stitches. When post discharge, opponent was consulted on 19/5/2009 and informed about problems, he informed that surgery is proper and recovery will take about six months. For complaint of pain he explained that it is not because of surgery but because of ball. Referring MRI of Dt. 1/6/2009 carried out at the instance of Dr. Rajeev, he submits that this report is indicative of septic condition and to remove infection surgery would be required. Meaning thereby, the opponent doctor has not taken proper care after surgery and left the patient at the mercy of assistant doctor. When the patient consulted Dr. Manoj Desai on reference from Dr. Rajeev, another MRI was done on 4/6/2009 which confirmed that patient had "infective discitis" in case of surgery before one month. Referring page 63, a treatment paper of Dr. Manoj Desai dt.4/6/2009, Mr. Moorjani submits that the said doctor has noted "infection at L4-5 disc space with sciatica with severe neuro deficit" is suggestive that infection is at operative site and it has caused deficit neurologically. He submits that the said doctor also observed that patient had high blood sugar for which he administered injections, controlled sugar level and removed infection. He further submits that patient was re-admitted and surgery was carried out on 27/7/2009. She was given discharge on 18/8/2009 but there was no improvement in pain. Due to constant pain, patient than consulted Dr. Bharat Dave and did platting. According to Mr. Moorjani, after surgery the opponent doctor was away from city is the statement of complainant gets support from the case papers produced by the opponent doctor. Almost all days of hospitalisation after surgery there is mentioning that Dr. Yashesh Dalal informed on phone which indicates that he was not available at hospital. Thus, the opponent doctor instead using his own skill rested his decision on clinical finding made by his assistant. He submits that patient was deprived of benefits of opponent doctor‟s skill. The services therefore rendered were not in the manner it was expected from the opponent doctor. Mr. Moorjani also alleged that the opponent doctor has indoor case papers in hand, did not supplied copy but gave computer generated case papers. Mr. Moorjani referring report of Dr. P N Tiwari and Dr. Anupam Bansal submits that both these experts have categorically gave opinion that infection was overlooked by the opponent doctor and it was result of undermining higher level of random blood sugar before surgery. He also submits that it is a matter of Rnm cc272012 Page 14 of 22 common knowledge that a person has high sugar level is prone to infection after surgery. However the opponent doctor despite having test report in hand, not taken care and ventured to surgery which ultimately resulted in infection causing pain and sufferance to the patient. He also submits that subsequent treating doctor has categorically noted in case papers that infection was existing and it caused infective discitis. The patient had to undergo frequent surgery and even thereafter she is having disabilities about 25 % which is certified by Government Hospital. Thus the complainants have proved that present condition has direct nexus with the surgery and post operative treatment of the opponent doctor. He therefore prays that relief claimed in complaint should be granted with interest so as to put the complainant at par at least for reimbursement of expenditure incurred and documents in support of the same is produced on record.
(5.2). Mr. A V Suman with Mr. M K Dudhiya submits that court should adjudicate only those disputes which have been pleaded in the complaint. It is submitted that admittedly, the complainant has taken treatment from Dr. Rajeev, Dr. Manoj Desai and Dr. Bharat Dave, after surgery carried out by the opponent doctor, and in this complaint, complainant is claiming disability and sufferance, therefore, the complainant ought to have joined all these doctors as party litigant. It is also admitted pleading in complaint that despite treatment and multiple surgery by other doctors, problem of pain persists, meaning thereby, the services of the other doctors are not competent to deal with basic problem of the complainant. Mr. Suman submitted that the above named other doctors found that infection which is known as "infective discitis"
had taken place and they have treated it, but the nature of treatment rendered to patient did not have any remote relationship with alleged "Infective discitis". It is submitted that there is no proof on record that how the doctors treated it without having analysis of bacteria either in the form of culture or any other acceptable mode of identification of bacteria. It is submitted that in medical science, infection can be treated through identification of type of bacteria and its growth. To remove pus from the infected site, "debridement" is considered better line of treatment, however, in none of case papers it is mentioned that any such procedure have ever been done. This leads to believe that no such infection has even taken place. Mr. Suman also further submitted that the opponent doctor being neuro surgeon, expected to treat patient for neurological problem. Dr. Buch had referred patient to opponent because he identified it as neurological problem and after surgery there is nothing on record which shows there was any neurological persists. He submits that in every surgery, infection is considered a known complication. Therefore doctor is expected to take reasonable care so as to minimise occurrence of infection and even if it takes place, it can be controlled through treatment. It is submitted that in the instant case, the opponent doctor has administered antibiotic for about 14 days and the said fact has been admitted by expert witness of the complainant in his cross examination. The Rnm cc272012 Page 15 of 22 said Dr. Bansal also has admitted that if a doctor has administered antibiotics for reasonable period it cannot be said doctor has not taken care of infection. It is in these circumstances, the line of treatment cannot be said faulty, erroneous or inadequate to hold deficient services. Mr. Suman also further submitted that services of the opponent doctor was hired to treat neurological deficit in the complainant‟s body for which the opponent doctor after physical examination of patient came to a conclusion that it is because of compression which was preventing functioning of nerves ultimately causing foot drop of the complainant. The opponent doctor has used his skill, find out the actual cause i.e. spinal nerve root compression by spondylotic (Disc Prolapse) and treated it. It is submitted that because the nerve which were passing through vertebral column and its natural status which has connection with brain and controls and maintaining physical functioning of body through different limbs and parts also faces compression or pressure and it was causing neurological deficit and body gets adversely affected. To treat this, surgery carried out by opponent doctor, removed loose and offending disc fragment and setting right nearest to its original status so as to remove compression, pressure or disturbance suffered in /on the nerve passing through vertebral column. It is submitted further that MRI of 1/6/2009 is suggestive of infective changes at L4-L5 level with arachnoditis is observed and in this report there is no finding that there is neuro instability however just after three days X-ray report taken by wife of Dr. Manoj Desai shows mild instability. This indicates that report is engineered one and contents thereof require to be proved by concrete and corroborative evidences. It is submitted that patient did not followed instructions and stopped visiting opponent doctor. The last visit even according to complainant is on 19/5/2009 and on that day she was examined and found ok and there was no infection. It is not even pleaded in complaint also. This indicates that she had no problem till she continued to visit the opponent doctor. It is even admitted fact that the opponent doctor has informed her that recovery will take about six months. Subsequent treatment done by Dr.Desai had no relation with removal of compression or pressure on the nerves and he cannot do it for want of adequate knowledge. Mr. Suman submitted that infection and inflammation both are different and in all cases of surgery inflammation is found after initial days of surgery. The MRI which referred likely infective changes with arachnoditis is not suggesting confirmed infective changes at L4-L5. It is submitted that even if it is presumed for the sake of argument that there was infection, than in that case, treatment would have include culture analysis which is not reflected in any of the case papers of Dr. Desai. The treatment regarding bone grafting and platting have nothing to do with decompression of root canal or decompression at L 4-L5 discectomy. In short he has two fold submissions. (1). There is no deficiency is observed so far Laminectomy to treat compression at L4-L5 and at root canal where treatment was given. (2). As such, there is no proof on record that there was infection developed but even if it is considered as proved on record than (a) it is not even case of complainant that it was existing Rnm cc272012 Page 16 of 22 on the date of her last visit to opponent doctor on 19/5/2009 on detected (b). post-surgery infection is known phenomena and it cannot be said that it has caused only because of negligence during surgery. He has therefore prayed for dismissal of complaint.
ANALYSIS OF EVIDENCE [6]. Upon hearing, rival submissions and records and evidences available, it is certain that complainant has no relief from the treatment rendered prior to consultation of the opponent doctor i.e. 29/4/2009. It is not in disputes that Dr. Buch being neuro-physician identified the cause but since it requires surgical intervention, referred patient to opponent doctor. The finding of the compression has been observed in report dated 24/3/2009 which reads as under: "Diffuse posterior herniation at L4-L5, more marked far left laterally, compressing the thecal sac, abutting both L 5 nerve roots, partially compromises left L4 neural foramen and corresponding L4 exiting nerve root, mild hypertrophy of ligamentum flavum at this level, further adds to canal compromise. Mild facet joint arthropathy at L4 - L5 and L5-S1"
Therefore, it cannot be said that the subject matter of treatment was not within the purview of the opponent doctor. Although vague allegations have been made in complaint that surgery performed by unskilled, it has to be thrown out especially when the opponent doctor hold degree that is sufficient to take the case in hand for treatment. Mr. Moorjani, made another bald allegations regarding informed consent for surgery and tried to submit that since surgery was without informed consent, the opponent is guilty of negligence. He relied upon certain answers of the opponent in cross examination but I could not lay my hand on any such allegation pleaded in complaint. In absence of clear pleading of allegation, he ought not to have been permitted to cross examine the opponent on the issue but though it is recorded it cannot be considered to hold the doctor liable for any such discrepancy even if it is there.
[7]. It is not in dispute that the opponent doctor performed surgery known as Laminectomy on 30/4/2009.
Though it is specifically pleaded in complaint that all the related pathology tests were done, X-ray chest (PA view) was done, the expert Dr. P N Tiwari opined that the opponent doctor failed to get detail tests to see the level of blood sugar and its control and went for operation which he planned on the day of his admission in the hospital. The entire base of the said expert is higher blood sugar which was reported as 147.20 instead 140 which is considered normal. Now this expert did not observed that Dr. Chauhan, a physician has examined patient and reported fit for surgery. Therefore merely because random blood sugar was reported little higher, it does not mean the surgery could not have been undertaken. It is also noteworthy that in his cross examination the opponent doctor has said that random blood sugar was examined repeatedly on that day. Over and above this he had started antibiotics to overcome possibilities of infection. Dr. Bansal, another expert, during his cross examination admitted that patient was given 14 days antibiotics were sufficient to take care of probabilities of infection after surgery. Even otherwise also it is not proved by any concrete evidence that infection stated to have been taken place was direct result of high blood sugar observed during preoperative tests. It is also to be noteworthy that Dr. Chauhan who had examined patient before surgery had noted in case papers that patient do not have diabetes. This makes it clear that the doctor have not committed any error in proceeding with surgical therapy. It is also Rnm cc272012 Page 17 of 22 observed in the report of Dr. Tiwari that the opponent doctor issued discharge certificate as "Fully Cured". I could not find any such words used in Discharge summary issued by the opponent doctor. On the contrary it is mentioned in Discharge summary that outcome is much improved and advised for follow up visit after ten days. It is rather surprising that Dr. Tiwari, being an expert ought to have thrown light on the subject matter of dispute i.e. whether surgery that was performed by opponent doctor would have benefitted to resolve the physical disability / problems faced by the complainant at that point of time or whether the line of treatment selected by the opponent was capable of to cure patient or not, but in the report there is nothing. Therefore, the report is of no use and it is surprising that complainant has admitted in cross examination that such report was obtained on the advice of the complainant no.1 VCA. In these circumstances, I have no hesitation in holding that the report of expert Dr. Tiwari is bias, not based on concrete appreciation of documents pertaining to treatment rendered to patient by the opponent doctor and it cannot be relied upon.
[8]. From the pleadings in complaint, evidence recorded and submissions canvassed, it is clear that complainant has basic grievance for the post-surgery treatment. There is nothing on record to show that the surgery was not carried out properly. The complaint is regarding infection took place subsequent to surgery. On one hand complainant admitted that the opponent doctor informed her about recovery time of six month and on another she has not waited even for two months and consulted another doctor of another discipline. The grievance of the complainant that the opponent doctor was not available for post- surgery treatment gets support from the case papers produced on record by the opponent doctor. It is mentioned in the said indoor case papers that Dr. Yashesh Dalal was informed on phone. In the entire record, there is no note or observation made in case papers that Dr. Yashesh Dalal has examined patient after surgery till she was discharged from the hospital. But at the same time, it is not disputed that when the patient consulted opponent doctor on 19/5/2009, she was examined by the opponent and she was informed that operation was successful and it will take six months to recover and her complaint of pain is not due to surgery but because of movement of ball. There is no record for the said visit and therefore it is rather impossible to ascertain her physical condition on that day. The only inference that can be drawn is the opponent doctor may not be there to provide post surgery treatment to patient. But it could not have affected adversely so as to cause infection at operative site.
[9]. None of the party has referred any medical literature except for interpretation for diagnostic test as to diabetes mellitus. Since the nature of surgery is not in dispute, reference to Laminectomy is sought from Medical Journal of England (Apr.2007) which suggests that "it is a surgical incision, into the backbone to obtain access to the spinal cord. One of the most common reasons for laminectomy is a prolapsed or herniated intervertebral disc. Occasionally, the operation does not work and the original symptoms remain. It decompresses the spine via the removal of the lamina and spinous process. It enlarges the spinal canal to relieve pressure on the spinal cord or nerves. It is also done as part of decompression surgery. Bony overgrowth of the joints in the spine can build up within the spinal canal. They can narrow the space for the spinal cord and nerves. This pressure can cause pain, weakness or numbness that can radiate down arms or legs. Because laminectomy restores spinal canal space, it‟s likely to relieve the pressure that causes the radiating pain. Laminectomy is considered generally safe. But as with any Rnm cc272012 Page 18 of 22 surgery, complications can occur. Potential complications include:- Bleeding, infection, blood clots, nerve injury and spinal fluid leak" Therefore it is clear that infection is one of the complication of laminectomy. Now in the instant case, whether it was in really infection or not is in dispute. According to complainant, Dr. Manoj Desai and Dr. Rajeev informed complainant that infection had taken place at operative site due to negligence of the opponent doctor. Whereas the opponent doctor says it was not infection but was inflammation which is often takes place after any surgery. The complainant has relied upon the treatment papers of Dr. Desai but not examined him as witness in this case. It is well established that mere production of document on record is not sufficient proof of contents of document. It has been canvassed by the opponent that though they said Dr. Desai had treated patient subsequently to him, the main grievances of complainant remained unresolved as pleaded in complaint. Therefore it was expected from the complainant that all these subsequent doctors could have been joined as party to complaint so that she could have better understood where fault lies. It seems that Dr. Desai must have made diagnosis of "infective changes" from report dated 1/6/2009 and subsequently reports of 4/6/2009. According to opponent doctor, it is engineered report. Since there are words against words and complainant has not taken any action either to examine Dr. Desai as witness or to join him as party. This is also necessary because, the opponent doctor has placed on record an opinion signed by three doctors of Baroda Imaging Centre (Page 236-240) which interprets digital X-ray report (Advanced digital radiograph of lumbar spine -AP and lat (flex/ext) views) report dated 1/6/2009 as under:
"It conclusively proves evidence of surgery done at L4 and L5 region and notes normal pedicles signifying no evidence of infection. The report mentions "no significant changes is seen in flexion and extension manoeuvre" which specifically denotes absence of instability of spine."
This report is contrary to what Dr. Desai has noted in his case papers. Unless facts established on record, it is difficult to held that there was infective changes as observed by Dr. Desai. Needless to mention here that heavy burden lies on the complainant to prove his case.
[10]. Similarly, interpretation and meaning of MRI report dated 1/6/2009 noted as under:
"This MRI of spine in early postoperative period shows evidence of normally expected postoperative changes with evidence of postoperative wound healing in the form of inflammation, oedema and subtle changes in all the areas and tissues affected by the operation. This report in question, does not at all mention nor suggest evidence of infective discitis to have existed in particular. These are normal physiological postoperative inflammatory changes seen as a routine and it is not possible based on MRI alone to conclude these changes as pathological infective changes. Thus, and hence the words „findings likely to represent infective changes at L4-L5 level with arachnoditis" cannot be interpreted as conclusive evidence of infection to have occurred. It also conclusively does not mean /indicate/ interpret to have occurred "infective discitis" even remotely, as alleged in the said complaint. Any MRI or other imaging report is only suggestive and it is mandatory to substantiate the diagnosis of infection by further definitive tests of tissue pus culture and growth of bacteria from the same to prove the existence of infection if any"
I cannot accept this report is conclusive for adjudication of this complaint but when there are contrary view is available, it becomes duty of the complainant to prove his version with corroborative proof then only onus shifts to the opponent to prove his case. Once primary burden is discharged, opponent can be asked to prove that he was diligent in rendering his services to the complainant. Dr. Bansal, Expert (PW-2) also had referred these reports in his expert opinion and commented that it is obvious that infection was not there at the time of operation, it was developed latter on due to neglecting the diabetic condition of the patient and Rnm cc272012 Page 19 of 22 not taking it seriously. However this comment is contrary to his own admission during his cross examination where he deposed that Dr. Yashesh Dalal has administered antibiotics to complainant and papers in this regard seen by him. It can be inferred from this comment of Dr. Bansal that he gives his opinion without referring any documents because the aforesaid opinion of three experts based on the MRI report dated 1/6/2009. The said report therefore after surgery done by the opponent doctor and though he reports that it is obvious that there was no infection on the date of operation. When the report is post operative, obviously it would not have reflected patient‟s condition on the date of operation. Dr. Bansal has also admitted in the cross examination that if doctor prescribes antibiotics for seven days after surgery, it is considered as reasonable care. He has repeatedly admitted that he had prepared his report on the basis of documents supplied by complainant only and he had made no efforts to find out any other documents if any. Thus the reports given by Dr. Bansal is also cannot be relied upon. Dr. Bansal has admitted in his cross examination that report dated 1/6/2009 has shown possibilities of „infective discitis‟ and to know reason about the image in MRI, pathological test becomes necessary some-times, depending upon the condition of patient. He also admits that no treatment can be rendered merely on suspicion. He also admits that he has not obtained any papers pertaining to procedure carried out by Dr. Manoj Desai and Dr. Rajiv Shah. Dr. Bansal also admits that he do not know about "infective discitis" or "spine instability". He also admits that he do not have any work experience in the field of neuro surgery and had no occasion to take part in any such surgery. Despite this, while writing his opinion in this case he has not taken any assistance either from neuro surgeon or neuro physician. Thus, the report of Dr. Bansal is also devoid of any credibility.
In Vinitha Ashok Vs Laxmi Hospital (2002-1-CPJ-4(SC)) the Hon‟ble Supreme Court observed :
"when experts opinions have been placed on record, it is duty of the Court to see that whether the evidence so adduced is reasonable and responsible and whether such evidence is capable of withstanding the logical analysis is for the Court to decide. In large majority of cases, it has been demonstrated that a doctor will be liable for negligence in respect of diagnosis and treatment in spite of a body of professional opinion approving his conduct where it has not been established to the Court‟s satisfaction that such opinion relied on is reasonable or responsible. If it can be demonstrated that the professional opinion is not capable of withstanding the logical analysis, the Court would be entitled to hold that the body of opinion is not reasonable or responsible".
In Ramesh Chandra Agrawal Vs Regency Hospital Ltd (2009-4-CPJ-27(SC)) the Hon‟ble Apex Court said:
"An expert is not a witness of fact and his evidence is really of an advisory character. The duty of an expert witness is to furnish the judge with necessary scientific criteria for testing the accuracy of the conclusions so as to the facts proved by the evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions...The value of expert opinion rest on the facts on which it is based and his competency for forming a reliable opinion. The evidentiary value of the opinion of expert depends on the facts upon which it is based and also the validity of the process by which the conclusion is reached. Thus, the idea that is proposed in its crux means that the basis of the credibility of the expert and the relevant facts supporting the opinion so that its accuracy can be cross checked. Therefore, the Rnm cc272012 Page 20 of 22 emphasis has been on the data on basis of which opinion is framed. The same is clear from following inference: "mere assertion without mentioning the data or basis is not evidence, even if it comes from expert. Where the experts give no real data in support of their opinion, the evidence even though admissible, may be excluded from consideration as affording no assistance in arriving at the correct value".
If someone is doctor by profession and if he files an affidavit before this Commission stating certain details of his knowledge, irrelevant with the subject matter of dispute, does not mean that it is to be considered as an Expert opinion. Conclusions drawn by both these doctors are reproduced herein above suggests that they have not given opinion on medical science. Considering the above said clear position of law, it can easily be inferred that report of either Dr. Tiwari or Dr. Bansal do not discloses any scientific data as to neuro-deficit or discitis. Therefore, conclusions drawn by the so called experts are nothing but, a tailor-made report favouring their pay masters! None of these two experts have taken pain to find out whether in fact the patient had suffered on account of „infective discitis‟ or „neurological instability‟ as it observed by Dr. Manoj Desai in his case papers. The complainant has not given any cogent reasons for not examining Dr. Desai or Dr. Dave as witnesses before this Commission. "Infective discitis" or "Neuro instability" is the part of record of Dr. Desai therefore he would have explained it better that too with reasoning and his competency would not have been doubted as it happened in case of Dr. Tiwari or Dr. Bansal.
[11]. It is well accepted that negligence as a tort is the breach of duty caused by omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do. A doctor will not be guilty of negligence if he has acted in accordance with the practice adopted as proper by a responsible body of medical men skilled in that particular art and if he has acted in accordance with such practice then merely because there is body of opinion that takes a contrary view will not make him liable for negligence. In Indigo Airline Vs Kalpana Rani Debbarma (2020-9-SCC-424) the Apex Court held that the onus of proof that there was deficiency in service is on the complainant. If the complainant is able to discharge its initial onus, burden would then shift to the respondent in the complaint. The rule of evidence before the civil proceeding is that the onus would lie on the person who would fail if no evidence is led by the other side.
Negligence is logically divisible into four elements. Duty, Breach, Cause in fact / proximate cause and harm/damage. An element required to prove negligence by the complainant is the proximate cause; the complainant must prove that his sufferance is reasonably connected to the doctor‟s action, through either the „but for‟ test or the „substantial factor test‟. The proximate cause relates to the scope of a doctor‟s responsibility in a negligence case. A medical error is only considered „negligent‟ if the healthcare practitioner has failed to take "reasonable Care". The law does not require a doctor to act perfectly but rather, the law requires that a doctor take reasonable care in treating and advising a patient. In the instant case, the complainant though alleged deficiency in service on the part of the opponent doctor yet not proved that which was the action of the opponent breached his duty. It is yet not proved that patient was in fact Rnm cc272012 Page 21 of 22 suffering from infective changes that were observed by Dr. Desai and Dr. Rajeev Shah in their case papers. It is yet not proved that opponent doctor has not taken adequate care for controlling or minimising infection after surgery. It is also not proved on record that there was "infective discitis" or "Neuro instability" requiring further treatment either bone grafting or platting. Although Mr. Moorjani has referred many authorities but none of these have identical facts and therefore general ratio will not be applicable since facts are differing. In this case complainant failed to prove that there was any deficiency on the part of the opponent doctor and its nexus to sufferance. When complainant has failed to discharge burden of proof, there is no option but to record failure and pass following order:
ORDER The complaint no. 27 of 2012 is hereby dismissed for want of sufficient evidence as to negligence on the part of the opponent doctor.
There shall be no order as to cost.
Pronounced on this 27th day of April, 2023.
Mr. R N Mehta Member.Rnm cc272012 Page 22 of 22