State Consumer Disputes Redressal Commission
Mr.Raghavendra Rao vs Dr.Santosh J. Karmarkar & Anr. on 25 March, 2009
CONSUMER DISPUTES REDRESSAL COMMISSION CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE, MUMBAI Date of filing : 16/02/2005 CONSUMER COMPLAINT NO. 22 OF 2005 Date of order : 25/03/2009 Mr.Raghavendra Rao D/103, Nav Pancharatna CHS, New Ayre Road, Dombivali (E), Pin 421 201. Complainant V/s. 1. Dr.Santosh J. Karmarkar 111, A Wing, Aradhana Bombay Dying, Spring Mill Compound, Dr.Ambekar Road, Dadar (E), Mumbai 400 014. 2. Brig. Dr.K.B.N.S. Dod Chief Senior Executive Bhai Jerbai Wadia Hospital for Children Acharya Donde Marg, Parel, Mumbai 400 021. Opposite Parties. Corum : Justice Mr.B.B. Vagyani, Honble President Shri P.N. Kashalkar, Honble Judicial Member
Smt. S.P. Lale, Honble Member Present: Mr.M.C. Gupta, Advocate for the complainant.
Dr.S.J. Karmarkar, O.P.No.1 in person.
Mr.Shetty, Advocate for O.P.No.2.
- : ORDER :-
Per Smt. S.P. Lale, Honble Member This complaint has been filed Mr.Raghavendra Rao alleging deficiency in service and medical negligence on the part of Dr.Santosh J. Karmarkar/O.P.No.1 and Brig.Dr.K.B.N.S. Dod, Chief Senior Executive, Bhai Jerbai Wadia Hospital for Children, Parel, Mumbai/O.P.No.2.
This complaint was rejected by this Commission on 20/05/2006 at the admission stage vide its order dated 20/05/2006 after hearing both the parties. Thereafter, complainant has preferred an appeal before the Honble National Commission. The National Commission was pleased to allow the appeal and remitted the complaint back to this Commission for disposal as per directions given by it. After remand, we permitted both the parties to file affidavits and documents.
The case of the complainant is summarily narrated below.
The complainant was suffering from urinary incontinence, who had undergone a treatment in Bombay Hospital, wherein Dr.B.K. Dastur attached to the Medical Research Centre, Bombay Hospital certified vide letter dated 01/03/1983 that complainant is suffering from hyper reflexive bladder and denervated external urethral sphincter that all these problems are connected with urinary incontinence. The complainant submits that though the complainant was physically handicapped, but he was physically capable of doing day to day assignment as could be done by a normal person. According to the complainant, he was suffering from urinary incontinence i.e. continuous flow of urine. For this reason, complainant has approached O.P.No.1-Dr.Santosh J. Karmarkar, who advised to get done operation in the hospital of O.P.No.2. O.P.No.1 after medical check-up of the complainant, advised to have control over automatic flow of urine by conducting Bladder Augmentation with Appendicular Vesicostomy as well as control over bowels by getting suitable operation at the hospital of O.P.No.2.
O.P.No.1 further advised to the complainant that whenever possible the complainant should get admitted for medical check-up. Therefore, complainant approached O.P.No.1 for medical check-up and all the tests were carried out by O.P.No.1. The complainant further stated that O.P.No.1 without sonography report got admitted the complainant to undergo a major operation i.e. Bladder Augmentation with Appendicular Vesicostomy operation. The complainant was admitted on 07/11/2002 and taken to the Operation Theater for carrying out the aforesaid operation. The said bladder augmentation operation was conducted on 07/11/2002 between 11.00 a.m. to 3.00 p.m. The complainant further states that the operation of Appendicular Vasicostomy which would have been performed has not been performed by O.P.No.1. The complainant submits that from 07/11/2002 to 09/11/2002 he was kept in SICU. After the operation, the complainant sensed that he was not able to move both his legs due to numbness more in the left leg and complainant immediately informed O.P.No.1, who stated that due to the effect of anesthesia, complainant would be feeling so and complainant would be normal after sometime. The complainant further submitted that on 08/11/2002 once again he complained about severe pain to the R.M.O. Dr.Ravi, who advised that the complainant should be given Traumadol injection. The numbness in the left leg was still persisting, even though the said injection was given to the complainant. Complainant further states that from 10/11/2002 to 25/11/2002 slowly gradually one by one the tubes were removed and he was sent to Hinduja Hospital for culture investigation test. The complainant states that he was left with SPC (Supra Public Catheter) from 25/11/2002.
Complainant further submits that though it was medically promised by O.P.No.1 during first visit that the Bladder Augmentation with Appendicular Vesicostomy would be perfect in case of complainant, as complainant does not have control over the natural flow of urine. It is submitted that in spite of his diagnosis during the operation, only Bladder Augmentation was done and Appendicular Vesicostomy was not done. The complainant further submits that O.P.No.1 could not perform Appendicular Vesicostomy operation as he had to make another incision to extract appendix and it would have taken 8 hours or more, since the complainant could not be kept under anesthesia for so long period. Complainant states that it is rash medical negligence to perform Bladder Augmentation without taking any prior diagnosis and planning of the operation or otherwise without discussing it with the complainant of his mother. It is further alleged by the complainant that O.P.No.1 performed Bladder Augmentation on 07/11/2002 at O.P.No.2 and O.P.No.2/Wadia Hospital is meant for a children upto 15 years of age. O.P.No.1 should not have admitted complainant in O.P.No.2-Hospital when the complainant himself was 25 years old. Complainant was discharged by O.P.No.1 on 30/11/2002 from O.P.No.2-Hospital without curing numbness, pain in the complainants legs for which O.P.Nos.1&2 are liable for damage caused to the health of the complainant. While discharging the complainant on 30/11/2002, O.P.No.1 has instructed the complainant that he should come to O.P.No.2 after one month for follow-up. The complainant submits that numbness and pain in the legs of complainant not only persisted but also increased. The complainant further alleged that the complainant had called his family physician Dr.Medha Oak, who advised that MRI should be done so as to know the medical defect caused during Bladder Augmentation operation due to local anesthesia. MRI report was shown to Dr.Gokhale, who opined that local anesthesia should not have been given to the spinal cord of the complainant suffering from Spinabifida. The complainant further submits that numbness below knees on both legs has been increased after operation, which incapacitated complainant to have a normal walking, which he had prior to performance of operation by O.P.No.1 at O.P.No.2-Hospital. The complainant further submits with bonafide intention to rectify the medical deformity, which is resulted due to incomplete Bladder Augmentation operation. The complainant therefore states that injecting anesthesia in the spinal cord is rash and medical negligence by O.P.No.1 and it resulted in partial paralysis of left leg of the complainant.
The complainant also alleged that he was not given hospital papers relating to the operation and he was required to approach Human Rights Commission and thereafter, he got those papers at the intervention of the Human Rights Commission. Therefore, complainant filed consumer complaint against Dr.Santosh J. Karmarkar/O.P.No.1 and O.P.No.2/Hospital for deficiency in service and for medical negligence.
O.P.No.1/Dr.Santosh J. Karmarkar filed written statement and pleaded that Mr.Raghavendra Rao is a patient of Spina Bifida. Spina Bifida is a complex birth defect of the spinal cord and can cause paralysis and lack of sensations of the lower limbs, bladder-urinary and bowel incontinence. He further pleaded that management of urinary incontinence in Spina Bifida is a most challenging and difficult proposition. A variety of surgical and medical options are available to try and help in making a patient socially continent i.e. keeping him conveniently dry. However, he further pleaded that these operations cannot make patient completely normal. O.P.No.1 further pleaded that three broad options in the case of Mr.Rao were (1) Enlarging the capacity of urinary bladder augmentation, (2) Tightening of the bladder outlet-bladder neck repairs and (3) Creating a new outlet continent diversion e.g. using the appendix called Appendicular Vesicostomy. Each of these options can be beneficial by itself and it is not necessary to perform all these together. He further pleaded that these surgical or medical operations are likely to help a particular patient. A decision has to be made on a case-to-case basis and it depends on several factors including operational findings in each case. Outcome of these operations is unpredictable and varies from case to case. The same procedure done on two different cases can have entirely different outcome. The patient had problem with control on the passage of urine (incontinence) and the treatment as offered was to help him, manage his incontinence in a better way and to avoid possible future complications arising out of his former treatment. He further pleaded that he offered to the complainant a better care and improvement in his condition and not cure as there was no cure for the ailment, the complainant is suffering from, it being a serious, irreparable birth defect. The benefit of these types of operations is not immediate, but requires regular follow-up, co-operation and compliance of the patient and his family. He further pleaded that during pre-operative visits, Mr.Rao and his parents especially mother, who usually accompanied him, were explained all these aspects in detail. All the necessary and pre-operative tests were done before operation was planned. Various surgical options were also discussed with mother of the complainant. He further averred that special permission to perform surgery on the complainant was requested and received from O.P.No.2. Thereafter only O.P.No.1 operated the complainant in Hospital of O.P.No.2 though it was a children hospital. The surgery on the complainant was performed on 07/11/2002. The anesthesia team was led by Dr.Supriya Gajendragadkar and surgical procedure was performed by Dr.Karmarkar/O.P.No.1 and his team. The anesthesia and surgical procedure was as per normal routine course and even post operative recovery was smooth. O.P.No.1 further pleaded that during post-operative period, on the second day, complainant complained about some numbness in the legs and it was promptly attended to and all the possible available pain relief medication and treatment was given. The pain/numbness gradually decreased during next few days. The complainant was discharged on 30/11/2002. This was normal duration stay of the patient undergoing said surgery. O.P.No.1 further pleaded that as normal surgery, patient was advised to follow-up on regular basis. However, it was unfortunate that follow-up by the patient was not regular. A few weeks after surgery, complainant gave a pleasant surprise to O.P.No.1 by riding two wheeler, all the way from Dombivali to Parel with his mother. During that visit he was seems to be managing well with SP tube and the problem in the legs seemed to be much less. O.P.No.1 further pleaded that follow-up was not regular and occasionally mother was seeking help and guidance for his social rehabilitation from him. According to O.P.No.1 post-operative occurrence of pain and numbness in the lower limbs which had occurred in the instant case was not related to the surgery. Neurologists have not noted any major problem in the instant case. Lastly, O.P.No.1 pleaded that surgery was successfully conducted and that there was no negligence on the part of O.P.No.1. O.P.No.1 referred following documents and literatures in support of his case :-
1) Dr.Ingalhalikars note dated 21/04/1989 suggesting that the complainant did indeed have a serious and significant neurological deficit in both the lower limbs since birth and thus much before the surgery.
2) Referring to the notes regarding anesthesia given and that he complained about numbness and pain in lower limbs, which was now recovering etc. These are temporary and fleeting effects.
3) Report of Dr.Deopujari a Neurosurgeon, who was summoned this O.P. himself to opine on the patient mentions complaints only of Paraesthesia (abnormal sensations). This report records an improvement in the limb power.
4) Report of EMG/NCV test performed and its findings are only as expected in any such case of Spina Bifida and do not in any way relate to complications of surgery. The same findings as mentioned in this report would have been found in the normal course even if the surgery had not been done.
The subjective complaints of pain and numbness developed by the patient later (not as a part of the postoperative recovery period) were immediately and adequately attended to and necessary opinions of concerned doctors were taken. Finally, O.P.No.1 prayed for dismissal of complaint in limine.
O.P.No.2 filed its written statement and pleaded that there is no deficiency or medical negligence on the part of Hospital/O.P.No.2 as alleged by the complainant. It pleaded that complainant, who is physically handicapped along with his mother voluntarily visited the hospital and approached O.P.No.1 for treatment on account of qualifications, expertise and experience of O.P.No.1 in treatment of Spina Bifida. O.P.No.1 sought special permission vide letter dated 01/11/2002 for operation of the complainant in the hospital of O.P.No.2.
It further pleaded that the complainant has referred opinion of Dr.Deopoojari. However, no such opinion has been given by Dr.Deopoojari as medical negligence on the part of O.P.Nos.1&2. Dr.B.S. Singhal of Bombay Hospital has not given any opinion of medical negligence but has only advised to take Methycobal, which could be useful for curing pain and numbness. Finally, O.P.No.2 prayed for dismissal of complaint with compensatory cost. O.P.No.2 has relied on the decision of Honble Supreme Court reported in (2002) CPJ 4 (SC).
On the basis of pleading of the parties, the following issues arise for our determination. Issues and our findings thereon are as under :-
ISSUES FINDINGS
1. Does complainant prove that due to incomplete Bladder No Augmentation operation performed by O.P.No.1, deformity in the body of the complainant could not be rectified?
2. Does complainant prove that due to spinal cord anesthesia given No by O.P.No.1, O.P.No.1 was negligent and complainant suffered severe pain?
3. Does complainant prove that O.P.No.1 is guilty of deficiency in No service in performing Bladder Augmentation operation?
4. Whether O.P.No.2 was negligent in allowing O.P.No.1 to perform No operation of the complainant, who was 25 years old in the Hospital of O.P.No.2?
5. What order?
As per final order.
REASONS ISSUE NO.1 :- During the operation, the best surgical option for Mr.Rao was thought to be Bladder Augmentation alone. However, as regards the other options of Bladder Neck Tightening and Appendicular Vesicostomy, these were not possible as that the bladder was deep seated and the appendicular length was too short to be safely brought down and joined to the bladder. The details of the surgery to be performed were already explained to the complainant and his mother and their consent was obtained. All consequences were explained to Mr.Rao and their family members. All pre-operative tests were performed and thereafter the operation was done on the complainant on 07/11/2002 at Bai Jerbai Wadia Hospital. According to Dr.Karmarkar/O.P.No.1, three broad options were there for this surgical operation to arrest his bladder incontinence. Those were, Enlarging the capacity of the urinary bladder-augmentation, Tightening of the bladder outlet-bladder neck repairs, Creating a new outlet-continent diversion for example, using the appendix called appendicular vesicostomy. Each of these options can be beneficial by itself and it is not necessary to perform all of these together. When such types of surgical or medical options are available, the decision is made on a case to case basis and depends on several factors including the operative findings in each case. The outcome of these operations is unpredictable and varies from case to case. The same procedure done in two different patients can have entirely different outcome. In the light of this particular patient, Dr.Karmarkar thought it fit to go in for Bladder Augmentation operation only and after operation, details of surgery performed were discussed with the patient and parents on the next date. Further recovery from the urological operation was as per expectations and smooth. Therefore, complainant failed to prove that Dr.Karmarkar failed to rectify the medical deformity in the body of the complainant.
ISSUE NO.2 :- The type of anesthesia chosen was in proportion to the patients needs and requirements, which was General Anesthesia. However, what the complainant referred to as Spinal Anesthesia was in fact introduction of fine catheter into the spinal passage for reduction of the dose of general anesthetics and the effective control of the pain in the post-operative period. The process is known as Epidural Analgesia. It is to be noted that epidural analgesia is a safe and internationally accepted procedure all over the world and is commonly used to assist women in labour pains. Therefore, O.P.No.1 was not negligent in giving anesthesia.
ISSUE NO.3 :- All these facts as revealed by Dr.Karmarkar leave us in no doubt that there was no medical negligence on the part of Dr.Karmarkar or Bai Jerbai Wadia Hospital for that matter. Patients plea was that he was to be operated for Bladder Augmentation and Appendicular Vesicostomy. But only urinary bladder augmentation was done by performing surgery on him by Dr.Karmarkar and no appendicular vesicostomy was performed. It has already been explained by Dr.Karmarkar that when three options were available surgically looking to all the aspects of patients health and other related issues, it is for the doctor, performing surgery to exercise option so that in surgery, the less damage is caused to the organs of the patient. Further option could have been undertaken only if there was need to do so, as per discussion of the surgery at the eleventh hour on the operation table. For the reasons mentioned in Annexure-1, Dr.Karmarkar thought it fit to do bladder augmentation only, so that patient could get best of the results by doing that operation only. He did not think it desirable and proper to go in for appendicular vesicostomy also looking to the condition of the patient. So there is nothing wrong on the part of Dr.Karmarkar in so exercising option, since he was the operating surgeon and expert in the field of treating patients of Spina Bifida. Complainant was a born patient of Spina Bifida. Spina Bifida is a complex birth defect of the spinal cord. It is in the light of these facts, Dr.Karmarkar in his wisdom and expertise and skill thought it fit to perform operation on Mr.Raghavendra Rao on 07/11/2002 only for bladder augmentation, so as to condense his urinary incontinence problem and this was successfully done by Dr.Karmarkar in Bai Jerbai Wadia Hospital.
ISSUE NO. 4:- It was alleged that O.P.No.2/Hospital was known as Bai Jerbai Wadia Hospital for children and there was no facility for treating adults, this cannot be a ground to hold that there was per se medical negligence on the part of O.P.No.1 and Bai Jerbai Wadia Hospital for children/O.P.No.2, because complainant himself preferred to approach O.P.No.1 in Bai Jerbai Wadia Hospital for children. O.P.No.1 told mother of the complainant that it was the hospital meant for children, with special permission, complainant could be treated or operated in the hospital itself. Therefore, mother of the complainant has also agreed for operation of the complainant. It is laymans knowledge that in Mumbai, Bai Jerbai Wadia Hospital for children is the best hospital for children having all state art facilities than any other hospital for treating the children in the best possible manner. Complainant has also agreed to undergo surgical operation at the hands of Dr.karmarkar in Bai Jerbai Wadia Hospital for Bladder Augmentation with Appendicular Vesicostomy operation. In this view of the matter, complainant cannot be heard to say that both the O.Ps. were guilty of medical negligence because they permitted complainant to be treated or operated in the Bai Jerbai Wadia Hospital, which was primarily meant for treating the children.
We have gone through the additional affidavit of the complainant and documents filed by the complainant and Annexures 1&2 and written submissions. O.P. No.1 has filed affidavit of Dr.Ravikiran, C.S. wherein at page-3 of the affidavit, it is clearly stated that the patient had no more neurological deficit than prior to surgery when he came for follow-up to Wadia Hospital.
It is also borne by the fact that he came on his two-wheeler for follow-up. O.P. No.1 has also filed affidavit of Dr.Pradnya Sawant, wherein at Para 3 and Para 8, it is clearly stated that O.P.No.1 was not negligent in giving anesthesia to the complainant. It is clearly stated in Para 3 that such kinds of cases have been done in the past and are being done presently very frequently in Wadia Hospital. Wadia Hospital OT is fully equipped to handle such cases and that the team of Anestheticsts lead by Dr. Supriya Gajendragadkar who are qualified anaesthesiologits (Post M.D. Anaesthesiology) was fully competent in their work and that the anesthesia used was as required in such a case. Further, it is stated in Para 8 that regarding tingling and numbness these symptoms are not uncommon. There are case reports in textbook of anaesthesia and journals which state that such symptoms disappear after stopping of epidural drugs from few hours to few days. The symptoms of tingling numbness etc. that the patient developed post-operatively also reduce fully over the time. O.P.No.1 has also filed affidavit of Dr.Hemant Lahoti and Medical Literature has also been filed by O.P.No.1.
After operation, after few days complainant came on two wheeler from Dombivali to Parel and the complainant is claiming that he became totally disabled and suffering in carrying on his employment. There is no evidence on record to prove that because of operation, condition of the complainant worsened than what it was before the operation.
The Honble Supreme Court in the case of Indian Medical Association V/s. V.P. Shantha, observed that -
In the matter of professional liability professions differ from other occupations for the reason that professions operate in spheres where success cannot be achieved in every case and very often success or failure depends upon factors beyond the professional mans control.
In view of discussions made above, we are of the considered view that the complainant has failed to establish charge of medical negligence against O.P.Nos.1&2. Hence, we pass the following order :-
-: ORDER :-
1. Complaint stands dismissed.
2. No order as to costs.
3. Copies of the order be furnished to the parties.
(S. P. Lale) (P.N. Kashalkar) (B.B. Vagyani) Member Judicial Member President