State Consumer Disputes Redressal Commission
David Chandramohan vs Dr. Gopikrishnan on 16 December, 2009
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT THIRU Pon. GUNASEKARAN B.A.,B.L., MEMBER - I O.P.NO.179/2000 DATED THIS THE 16th DAY OF DECEMBER 2009 David Chandramohan S/o. S. Deenadayalan 3/40, Nalvar Nagar Kalveerampalayam Coimbatore 641 046 ..Complainant Vs. 1.
Dr. Gopikrishnan Kovai Medical Centre and Hospital Ltd., P.B. No.3209, Avinashi Road Coimbatore 641 014
2. Dr. Nalla G. Palanisamy The Chairman Kovai Medical Centre and Hospital Ltd., P.B.No.3209, Avinashi Road Coimbatore 641 014 . Opposite parties This complaint dt.14.9.200 filed against the opposite parties alleging medical negligence, claiming compensation of Rs.14,84,148/-.
This petition coming on before us for hearing finally on 14.10.2009, upon perusing the material documents, and upon hearing the counsels for both the parties, and having stood over till this day for consideration, this commission made the following order.
Counsel for the Complainants: M/s.
R.Venkatraman, R.Nandakumar & S.Gopala Ratnam, Advocates Counsel for the 1st Opposite party: M/s.C.Ravichandran L. Damodaran, Advocates Counsel for the 2nd Opposite party: M/s. Pushpa Sathyanarayana, Buvaneswari P & T.K. Premkumar, Advocates Honble M. THANIKACHALAM J, PRESIDENT.
1. The complainant, claiming a total sum of Rs.14,84,148/-, under various heads as enumerated in paragraph 15 of the petition, has filed this complaint, against the opposite parties.
2. The brief facts relevant to decide the case, are as follows:
The complainant who was suffering from pain in the lower back, was admitted in the Kovai Medical Centre and hospital (2nd opposite party), on 30.10.98, on the reference of the 1st opposite party, where the he is working as Neuro Surgeon. The surgery was fixed for the complainant on 02.11.1998, based on the MRI reports, without giving conservative treatment. The complainant was operated for laminectomy and discectomy for L 3-4, L 4-5 on 2.11.1998, by the 1st opposite party. When the complainant was in the recovery room, he found to his dismay that the whole of his right leg was numb and foot had dropped, further in the left leg plantar flexation had weakened. The 1st opposite party, who checked the complainant, informed nothing to worry, since everything would be alright in a couple of days. The complainant stayed in the hospital till 23.11.1998, undergoing physiotherapy treatment and taking epidural injections, without any improvement in the health condition.
3. If there was successful operation, it is learnt that epidural injection need not be given continuously. Due to the administration of epidural injection, the complainant who was Non-Insulin Dependent Diabetes Mellitus (NIDDM), became Insulin Dependent Diabetes Mellitus (IDDM).
4. The complainant was discharged from the hospital on 23.11.98, in non ambulant condition, on a wheel chair, with promise by the 1st opposite party, that he would be alright, if he underwent vigorous physio and muscle stimulation exercise. Following the instructions, again on 31.12.98, the complainant went to Kovai Medical Centre, and he was requested to take ENMG test, to find out the reasons for non-improvement in the complainants health. ENMG report, revealed that there was L5-S1 root lesion and anticipation of poor recovery, which was not accepted by the 1st opposite party. Believing the words of the 1st opposite party, when the complainant continued to take physiotheraphy treatment at Coonoor, the condition of the complainant deteriorated further, developed edema from his knees to toes, in both legs, causing excruciating pain.
5. Thereafter on 21.1.99, again the complainant admitted in Kovai medical Centre and Hospital Ltd., and as suggested by the 1st opposite party, another MRI was taken from KG MRI scan centre. The 2nd MRI report, disclosed that the complainant had compression at the same levels L 3-4, L 4-5, as already in the previous MRI report. On seeing this, the 1st opposite party suggested to undergo another surgery, by removal of two vertebrae in L 3-4, L 4-5 levels and fusioning of bones by fixing two steel rods. The complainant also came to know that the 1st opposite party had performed the surgery at L 2-3, L 3-4 levels, and not at L 3-4, L 4-5, which fact was concealed, thereby unnecessarily allowing the complainant to undergo pain, mental agony .
6. The complainant after consulting a doctor friend, and learning that a mis-management has been done to him in the surgery, consulted other neuro surgeon, who after verifying the pre-operative and post-operative MRI and ENMG report, gave opinion that It is relevant to state here that before the surgery was done by the 1st opposite party, the complainant was not having his right leg foot drop, waddling gait, edema in his right and left legs and numbness. The complainant had to undergo another surgery at D.G. Hospital on 12.02.1999 by Dr.Sathish Babu, Neuro Surgeon for the same Lumbar L 3-4, L 4-5 levels to avoid further deterioration of nerves, because of the mis-management in the surgery done on 02.11.1998 by the 1st opposite party. Only after the surgery, in the right leg also, the problem had occurred, for which the 1st opposite party should be held responsible.
7. In view of the sufferings, the complainant undertook another surgery at DG Hospital on 12.2.99 by Dr.Sathish Babu, neuro Surgeon, for the same Lumbar L3-4, L4-5 level to avoid further deterioration of nervous. The complainant is still experiencing the pain, edema, partial muscles paralyses, foot drop of right leg, numbness of legs, waddling gait Stenosis of lumber canal (Narrowing of canal) with ultimate result of giddiness, headaches, rushing of cerebro fluid into the brain blurring of vision even by a slight sudden movement of body backward of forward. The 1st opposite party is liable for proceeding to an operation too quickly without considering the alternative treatments, available. The 1st opposite party was still guilty of negligence and mismanagement and liable for all consequences. The medical reports will reveal that the damage caused to the complainants health is irreversible. This is attributable to the negligence and mismanagement of the 1st opposite party.
8. In view of the gross negligence and mismanagement of the 1st opposite party, the complainant has become physically handicapped person, which affected his carrier advancement, promotion, even attending his office, since claiming upstairs is very difficult, and edema in legs and Stenosis of lumber canal. Because of the sufferings, the complainant is unable to concentrate in the studies of is children also, and he has to take medical leave as well leave on loss of pay, thereby causing monetary loss also. The complainant as consumer, is entitled a compensation of Rs.8 lakhs from the opposite parties, for his personal physical disability and irreversible damages, another sum of Rs.3 lakhs for pain and agony, a sum of Rs.3 lakhs for future medical expenses, a sum of Rs.75000/- for the expenses incurred, at the time of taking treatment, and a sum of Rs.54,148/- for loss of pay suffered, totally a sum of Rs.14,84,148/-, hence the complaint.
9. The case of the 1st opposite party in brief in his written version, briefly as follows:
The complainant had the problem of spondylosis of cervical and thoracic spines, besides having the history of diabetes, controlled by medication. On the complaint, he was thoroughly examined, advised to take MRI scan of the neck, which revealed disc prolapse in C4-C5, C5-C6 and C6-C7 levels, for which he was effectively treated , advised against lifting of weight and traveling by ghat roads, In the year 1996.
10. Thereafter on 30.10.1998, the complainant came and reported pain at a different region i.e., from the low back to the right leg, coupled with weakness of right foot. He has also informed that conservative treatment taken by her elsewhere had not helped him. Therefore, MRI scan was recommended, which showed disc prolapse in the lumber spine, L3-4, L4-5 levels. The prolapsed disc had adhered themselves to the nervous causing terrible pain, restricting his movements to great extent, and therefore, since there was no option, except the procedure of hemi-laminectomy, he was advised to undergo surgery. By this procedure, instead of dealing with the entire column on either side of the prolapsed disc, one half of the spine on the right side of the prolapsed disc alone had to be dissected. After informing the complainant about the nature of surgery and the consequences and explaining the possible outcome and the risks involved, then obtaining the consent, Hemi-Laminectomy was performed by the 1st opposite party on 2.11.1998. Bestowing the best care, operation was done, and knowing the progress of the patient positive, he was discharged on 23.11.1998, fully ambulant condition, able to walk with support, advising against forward bending, squatting, lifting of weights and not to travel on rough roads. There was no negligence or carelessness in respect of diagnosis or treatment given or surgery done to the complainant by the 1st opposite party, who is an experienced surgeon, who carries out, complicated surgeries. The condition with which the complainant presented himself, and the nature of surgery done upon him was only to try and arrest further deterioration and neurological deficit and improve the strength of the weakened muscles with physiotherapy.
11. Giving of an epidural injection, will not aid in improving the neurological condition of the patient, and no such assurance was also given. The reasons as to why the complainant become insulin dependent depends, on various factors unrelated to the administration of epidurals and therefore contra allegations are baseless.
12. The ENMG study revealed that axonal degeneration had started on the side, which was a fresh development. A repeated MRI was advised in the light of the development shown in the ENMG, and MRI revealed compressions at the same levels of the surgery, due to the formation of fibrosis/ granulomatous tissue, and not due to anyother careless or negligence in surgery. It is utter false to say and suggest that surgery was performed at L2 to L4 levels and the records, maintained by the hospital, certainly would disclose that the surgery was done at levels L3-4, L4-5. Hemilaminectomy on the right side at the level the L3-L4 and L4-L5, had performed, since problem was there only at the relevant time.
At Bangalore, as seen from the records, Laminectomy would have been performed probably the petitioner would have later developed the said problems on the left side. The development that took place, resulting in further neurological deficit has nothing to do nor is it attributable to any negligence or deficiency in service or carelessness in treating the complainant. It is the duty of the complainant to prove that another surgery was necessitated to set right any wrongful procedure or a negligent surgery conducted by this opposite party in the 2nd opposite party hospital.
In fact, there is no specific allegation of negligence, against this opposite party. The amounts paid by the complainant were only towards the treatment, and the specialized surgeries conducted, and not for anything else, and therefore the question of refunding the same does not arise. This opposite party is not liable to pay any amount, under various heads as alleged, in the absence of deficiency in service or negligence and other allegations are specifically denied as false, praying for the dismissal of the complaint.
13. The 2nd opposite party, more or less reiterating the stand taken by the 1st opposite party, has stated further in its written version, that no part was played by the hospital, except providing of infrastructure and in fact there has been no negligence or carelessness, as alleged and therefore claiming compensation, against this opposite party, jointly and severally, is untenable, thereby praying for the dismissal of the complaint.
14. Points for determination are
1. Whether the 1st opposite party had committed any medical negligence and mis-management in the surgery, resulting pain, edema, partial muscle paralysis, foot drop of right leg, numbness of legs, etc., thereby causing deformity to the complainant?
2. Whether the complainant is entitled to compensation/ damages, under various heads, as claimed in para 5 of the complaint, if so to what amount?
3. To what relief, if any the parties are entitled?
15. Point No.1 and 2:
The complainant once had problem of spondylosis of cervical thorasic spines, for which he admittedly took treatment with the opposite parties, and after taking treatment, discharged on 12.5.96, though it is not pleaded in the complaint.
Probably satisfying with the performance, or otherwise, when he had some kind of back pain problem, he went to the opposite parties, consulted the 1st opposite party by name Dr.Gopalakrishnan, a specialist in Neuro surgery, who advised him to take MRI, in order to diagnise the problem. Based on the MRI report, the 1st opposite party suggested Hemi-laminectomy and discectomy for L3-L4, L4-L5, and accordingly Hemi- laminectomy was performed on 2.11.98. Thereafter, since the 1st opposite party felt the patient progressed well, and there was no increase in the neurological deficit, the complainant was discharged on 23.11.1998, with some advise what he should follow and what he should not, advising review after some time. Pursuant to the direction, on 21.1.99, the complainant was admitted in the hospital for numbness on both legs, for which ENMG was taken, which showed axonal degeneration on the left side. Post MRI revealed the compression at the same L3-L4, L4-L5 disc level. On the basis of the ENMG study, the 1st opposite party suggested for another surgery. The complainant after advise, promised to come back for undergoing full Laminectomy, did not turn, whereas he got himself admitted at DG hospital, Bangalore, where he underwent Hemilaminectomy at the same L3-L4, L4-L5 leval canal Stenosis. After surgery, after discharge from the hospital, he had some relief, though he had the sufferings, in respect of the surgery done by the 1st opposite party. So far as the above facts are concerned, there is no dispute.
16. It is the case of the complainant, that there was medical negligence and mismanagement, leading to complication, resulting untold sufferings, more or less depriving the day to day activities of him, in a way paralyzing his future. As seen from paragraph 1, the first accusation leveled against the 1st opposite party is that without giving conservative treatment, a surgery was fixed for the complainant on 2.11.1998.
The 2nd charge leveled against the 1st opposite party as seen from the end of the same paragraph is, that due to the administration of epidural injection, the complainant, who was a Non-Insulin Dependent Diabetes Mellitus, had become an Insulin Dependent Diabetes Mellitus. The 3rd charge levelled against the 1st opposite party, as seen from paragraph 6 of the complaint is, that as per the ENMG report, Dr. Govindarajan, Neuro Physician, there was L5-S1, root lesion and anticipation of poor recovery, which was not only accepted by the 1st opposite party, but he continued to give the complainant medicine and advised physiotherapy, leading to development of edema, from his knees to toes and both legs, causing excruciating pain. The 4th accusation are serious allegation, leveled against the 1st opposite party is, the 1st opposite party instead of performing surgery at level L3-L4 and L4-L5 levels, performed surgery at L2-L3 and L3-L4 levels, thereby showing gross negligence, resulting pain, mental agony and physiotherapy treatment, under false hope of recovery. On the above basis, it is the further accusation of the complainant that because of the mismanagement or negligence, he developed in his right leg also foot drop, waddling gait, edema in his right and left legs and numbness. The complainant having spent so much of amount, and having suffered pain and other expenses, as said above, claimed compensation, which are stoutly denied.
17. The Apex Court of the land, in the celebrated case Jacob Mathew Vs. State of Punjab & Another, reported in (2005) 6 SCC 1, has held that it should be shown that the doctor against whom a medical negligence is attributed, did something or failed to do something, which in the given facts and circumstances, no medical professional in his ordinary sense, and prudence would have done or failed to do, and that the death should be the direct result of negligent act of the doctor, and the act alleged must be the proximate and efficient cause without the intervention of any other negligence, and in this kind of cases alone a doctor could be held responsible, warranting tortious liability, which is also reiterated in Nizam Institute of Mdical Sciences Vs. Prsanth S.Dhananka & Others, reported in 2009-4-LW Part 1, and followed in Martin F.D.Souza Vs. Mohd. Ishfaq reported in AIR 2009 Supreme Court 2049, wherein it is said A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgement in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct feel below that of the standards of a reasonably competent practitioner in his field. . It is further observed that an error of judgement may or may not be negligent. It depends on the nature of the error , further concluding The standard of care has to be judged in the light of knowledge available at the time of the incident and not at the date of the trial. Also, where the charge of negligence is of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time.
18. It is also the dictum of the Apex Court that Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgement or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence.
19. In Postgraduate Institute of Medical Educational and Research, Chandigarh Vs. Jaspal Singh and Others, the Apex Court reiterated the settled position regarding, the professional negligence which reads It is now well settled that a professional may be held liable for negligence if he was not possessed of the requisite skill which he professed to have possessed or, he did not exercise, with reasonable competence in the given case the skill which he did possess. It is equally well settled that the standard to be applied for judging whether the person charged has been negligent or not; would be that of an ordinary person exercising skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices. Then coming to the burden of proof, it is the dictum of the Apex Court that In the medical negligence actions, the burden is on the claimant to prove breach of duty, injury and causation. The injury must be sufficiently proximate to the medical practitioners breach of duty. On the basis of the above settled proposition of law, the evidence in the present case has to be evaluated, when it is specifically alleged by the complainant, that the opposite party has committed lack of care and cautions and the neglect on the part of attending doctor.
20. As settled by the Apex Court, as early as in 2005, in the celebrated case of Jacob Mathew, which is reconfirmed later in Martin F.DSouza Vs. Mohd. Ishfaq, it is the bounden duty of the complainant, to prove medical negligence or mismanagement while doing surgery, in order to succeed, in a given case. In this case, though a higher claim is made, which we cannot find fault generally, as expected, no expert opinion has been let in, except giving evidence by the complainant as PW1, who is not admittedly an expert, being the non-medical man. He has also relied on the documents, supplied to him by the expert viz. in this case the opposite parties. True, it is not always necessary to go for expert opinion, if a case can be proved, otherwise also mainly placing reliance upon the documents, given by the doctors, which they cannot disown ordinarily. Probably, in this case, it is the attempt made by the complainant to prove his case of medical negligence, attributed to the 1st opposite party.
21. As far as the 2nd opposite party is concerned, though a prayer has been made for joint and several liability, we feel it is beyond our reach to rope in the 2nd opposite party for the claim, in view of the admitted fact, as repeatedly said by the 1st and 2nd opposite party, that there is not even a single allegation against the 2nd opposite party, attributing any deficiency in service. Except the fact that the 2nd opposite party had provided the infrastructure for the surgery to be performed by the 1st opposite party, being a specialist in this case, as Neuro Surgeon. When there is no allegation against the 2nd opposite party, how they have also contributed negligence in the mismanagement or how they have also acted negligently, it is purely impossible to fix them, as if they are guilty of negligence. Our best effort by going through the complaint, as well as proof affidavit, filed by the complainant, ended in vain to fix the culpability, since there is no allegation, and at the time of argument also no case has been advanced against the 2nd opposite party. Merely, because the 1st opposite party is attached with the 2nd opposite party or the 1st opposite party performed surgery in the 2nd opposite party hospital, no liability could be fastened as of routine.
It is not the case of the complainant also, as seen from the pleadings that the 2nd opposite party being consulted, invited the 1st opposite party for performing surgery or he sought the service of an unqualified doctor or they did anything wrong in the post-operative care, and in this view, the 2nd opposite party also should be held responsible. This being the position, we are inclined to relieve the 2nd opposite party from the clutches of alleged guilty of negligence or the mismanagement, as the case may be.
22. In order to appreciate the facts in issue, we have to meticulously scan the discharge summary and other procedures adopted by the 1st opposite party, while performing surgery, for which the records maintained or he obtained reports from elsewhere on his advise.
23. As advised by the 1st opposite party on 30.10.1998, scan was taken from KG MRI Scan Centre, as seen under Ex.A3, and the report revealed Dehydration of L3-4 and L4-5 Disc with large central (Posterior) Disc prolapses at L3-4 and L4-5 with thecal sac indentation; No bony canal Stenosis. The 1st opposite party by going through the scan report, as well as physically examining the complainant, and considering the acute pain suffered by him, judged that he should be operated, in which we are unable to find any fault, since there is no material to say that he should have taken contra decision.
As said above, the complainant went to the hospital on 30.10.98, and X-ray was taken on the same day. The decision was also taken on the same day for surgery. Therefore, an attempt was made to say as if a hasty decision has been taken by the 1st opposite party, instead of adopting conservative treatment, such as prescribing medicine, advising physiotherapy etc. The 1st opposite party, has specifically stated that he was informed by the complainant, that the conservative treatment taken by the complainant, elsewhere had not helped him, and therefore he had recommended MRI scan, which showed a disc prolapse in the lumber spine, L3-L4, L4-L5 levels, which is not seriously challenged, whereas it is supported by scan report also. Under the said circumstances, it is not possible to say or attribute any negligence, as if the 1st opposite party, without following or adopting the conservative way of treatment, suddenly or hastily decided to go for surgery. The complainant was already having the spinal problem in the sense, having cervical problems, for which also he had taken treatment. The acute pain, which he suffered on 30.10.98, would not have occurred on a single day, warranting conservative treatment. It is also recorded in the discharge summary, that he has been treated conservatively and not responded. Therefore, on the basis of the 1st allegation, viz. the 1st opposite party failed to treat the complainant, by conservative method, will not take us to fix the seal of negligence upon the 1st opposite party.
24. Ex.A5 is the Discharge summary, for the treatment given to the complainant, which reads, including the history History:
This patient has been admitted with acute onset of low back ache side seiatica since he has been treated conservatively and not responded. No history of bowel/bladder disturbances. He had underwent anterior cervical discectomy & fusion earlier O/E:
Patient is well built man. Tenderness over L4 & L5. Movements of the spine are restricted. He has L5 S1 route involvement on he (R ) side. SLR grossly restricted on the (R ) side.
It is further said under the heading treatment given HEMI LAMINECTOMY ON THE RIGHT SIDE L3-L4, L4-L5. To our understanding by going through the pleadings, it is not made out that Ex.A5 contains false fact, or it was prepared for the occasion, to suppress or screen the negligence said to have been committed by the 1st opposite party. Thus we safely conclude the complainant was operated, only at levels, the right side L3-L4 andL4-L5, which could be seen further from Ex.A11. In fact the level of surgery done by 1st opposite party was not challenged, before us, whereas conceded, while arguing.
25. Ex.A11 is the post MRI, taken on 21.11.99, when the complainant came to the hospital for review. After finding the impression, stated therein reads Dehydration of L3-4 and L4-5 Disc with large central (Posterior) Disc prolapses at L3-4 and L4-5 with thecal sac indentation; No bony canal Stenosis, which is more or less the same finding in pre-surgery scan viz. Ex.A3. Therefore, an abortive attempt was made to say, that the complainant was not operated at levels L3-L4, whereas he should have been operated at L2-L3 and L3-L4 levels.
This attempt not persuaded to the end result, and we find no materials also to reach, such conclusion, which was taken, taking advantage of the fact, some mistake had crept in, in the discharge summary.
26. After 2nd admission, as seen from Ex.A12, under the heading final diagnosis, it is said L4-L5, disc prolapse, L3-L4 Epidural scanning: This patient has been readmitted for evaluation of the disease following disc surgery at L2-3 L3-4, 3 months ago, thereby showing as if surgery has been done at L2-3 and L3-4 levels. The 1st opposite party as RW1, admits this is a mistake and owned responsibility also saying that he signed without verifying the records, probably believing the person who prepared. Therefore, we have to conclude, it is a clerical mistake and on this basis no negligence, could be attributed, as if there was negligence, leading to other complications, as claimed, not made out.
27. The operation sheet, maintained during the normal course of the business, (Ex.B ), reveals the fact that the surgery was performed only at L4-5 level, not at L2-3 levels, probably as mistakenly indicated in Ex.A12, followed by Ex.A13, certificate given for the purpose of claiming expenses elsewhere. The corrective surgery, said to have been performed, at later point of time at Bangalore also, does not disclose that the 1st opposite party had performed, hemi-laminectomy at L2-3 levels. Therefore, taking advantage of the fact, that some mistake had crept in Ex.A12 and Ex.A13, which are explained satisfactorily by RW1, we are unable to fix any culpability or negligence, leading to complication on the basis of the alleged wrong surgery. Realising that, surgery has been done only at L3-L4, L4-L5 levels, the learned counsel for complainant also submitted on 24.11.2009,that there is no dispute regarding the surgery level, which is also further evidenced by the discharge summary, issued by Bangalore Hospital. Ex.A17 is the MRI report, issued by Medinova Diagnostic Services Ltd.,, dt.25.4.99, wherein the findings given would indicate that there was evidence of laminectomy at L4-L5 region. It is also admitted by PW1, during the cross-examination, that the opposite party performed hemilaminectomy at the right side of L3-L4,L4-L5 levels. Therefore, on the basis that some mistake had crept in, in the certificate issued by the 1st opposite party, as if surgery had been done at L2-L3 level, we cannot say that there was defective surgery or the opposite party having done surgery at L2-L3 levels, attempted to correct the same, suggesting second surgery. In this view, on the ground that the 1st opposite party had done surgery at L2-L3 level, instead of L3-L4 levels, no negligence could be attributed.
28. One of the negligence attributed at the first instance appears to be that no conservative treatment was advised, and hasty decision was taken to perform surgery on 2.11.1998. This accusation or allegation is patently wrong and unacceptable, is well demonstrated by the 1st opposite party, and even it can be seen from the evidence given by PW1.
As admitted by PW1, having developed pain, he went to a doctor at Coonoor, who suggested to go to Coimbatore, since there are facilities available. As recommended, MRI was taken, which showed disc prolapse, in the lumber spine L3-L4, L4-L5 levels. The intensity of the prolapse in the lumber spine was very severe, and the medical evaluation and MRI report as spoken by RW1, insisted immediate surgery, and therefore the doctor took the decision to perform hemilaminectomy. In view of the acute pain and the disclosure of disc prolapse in the lumber region and in view of the fact as admitted by PW1, conservative treatment has not given any relief, surgery was suggested, and therefore on the ground no conservative treatment was given, immediately surgery was fixed, we cannot fix any negligence on the part of the opposite party, and this ground raised by the complainant is liable to be rejected.
30. After surgery MRI scan was taken. It is the case of the complainant, that pre-MRI, as well post MRI revealed, the complainant had compression at same level i.e., L3-L4 and L4-L5, which indicates according to complainant, there was mis-management of surgery. Ex.A3 is the MRI taken prior to surgery, and the impression reads "Dehydration of L3-4 and L4-5 disc with large central (Posterior) disc prolapses at L3-4 and L4-5 with thecal sac indentation. No body canal stenosis." Ex.A11 is the MRI taken after surgery, which reads "Dehydration of L3-4 and L4-5 Disc. Large Central (Posterior) disc prolapses seen at L3-4 and L4-5 with thecal sac compression and both neural canal compensation. No Bony central canal stenosis." So far as dehyderation of L3-L4 and L4-L5 is concerned, the same impression is noticed. Based upon these two reports, an argument was advanced, that the 1st opposite party performed hemilaminectomy surgery at L3-L4 and L4-L5 levels, instead full laminectomy surgery, eventhough there was a large central disc prolapse at these levels. It is the further submission, that as a consequences of this surgery, immediately after recovering consciousness, the complainant experienced total and complete loss of sensation, numbness in his right leg, and inability to move the right leg, and this should be attributed only to the miss-management of surgery. On the other hand, the learned counsel for the 1st opposite party would submit that MRI cannot distinguish a pre-disc or disc edema or disc granulation or recurrent disc, within a span of 6 weeks, since MRI taken immediately after surgery, that kind of impression would have shown. In support of the above contention, our attention was drawn to certain literature also, as well as the MRI taken after second surgery at Bangalore, which also revealed as diffuse degenerative disc bulge are noted, again at L3-L4, L4-L5 regions with significant compression on thecal sac.
31. RW1, being the expert, would state that since Ex.A11 was taken within 20 days of the surgery, it would have given the false picture and in support of the same, he relied on a text "Magnetic Resonance Imaging, Third Edition at page 1891, which says, Because of tremendous changes in the epidural soft tissues and intervertebral disk after surgery, caution must be exercised in interpreting MR images in the immediate postoperative period (upto 6 weeks after surgery). A large amount of tissue disruption and edema may occur, producing mass effect on the anterior thecal sac and even mimicking the appearance of a true disk herniation." Further, under the heading post-operative period "Changes after disectomy can be seen immediately after surgery. T1 Weighed images show increased soft tissue signal anterior to the thecal sac and an indistinct posterior annular margin. This soft tissue signal may blend smoothly with the parent disc space and show increased signal on T2 weighed images. This anterior epidural tissue (edema), combined with the disruption of the posterior anular margin resulting from disc curellage, can mimic the appearance of the pre-operative disc herniation and produce mass effect. These dramatic changes within the anterior epidural space gradually involute over the next 2 to 6 months after surgery, with a corresponding return of the thecal sac margin to normal. Because of the tremendous changes in the epidural soft tissues and intervertebral disc after surgery, caution must be used in interpreting the MR within the first 6 weeks". Therefore, on the basis of Ex.A3 and A11, the impressions are one and the same, it is not possible to say that there was defective surgery or mismanagement of the surgery. In the technique adopted, while performing the surgery, no defect was pointed out by examining any expert on the side of the complainant, or producing any literature, indicating that the procedure adopted by the 1st opposite party was defective or something like that. Unless it is made out, as ruled by the Apex Court, that the surgeon, who performed the surgery has not followed the protocol, taking advantage that the post-operative MRI also revealed same kind of impression, as that of pre-surgery MRI, affixing negligence is an impossibility.
32. Admittedly, RW1 performed hemilaminectory surgery at L3-L4, L4-L5 level, on the right side, to minimize the disruption in the normal structure. It is the case of the complainant, that instead of hemilaminectomy surgery, full laminectomy surgery had been done, the consequential sufferings, suffered by the complainant would not have occurred. To support this submission or because of the hemilaminectomy, the complainant was put to much sufferings, we do not have any material. RW1 being the expert, explained under what circumstances, he adopted hemilaminectomy. on the disc portion, because inflexion, the stress on the adjacent disc in posterolateral fusion with laminectomy and hemilaminectomy respectively increased 90% and 21% over that of the intact spine, which procedure is adopted, even in Germany, as disclosed in the book 'Dianostic Neuroradiology' authorized by Anne G.Osborn. If any setback had occurred, it seems, it is the common feature, and not due to any faulty surgery, which is also evidenced from the above text book, wherein it is stated that "Failed Back Surgery Syndrome".
Very common Recurrent/persistent HNP at operated site HNP at other site Epidural scar/fibrosis (?role) Facet arthrosis/spinal stenosis Common Neuritis Referred pain from nonspinous site Uncommon Diskitis/osteomyelitis/epidural abscess arachnoiditis conus tumor Thoracic, high lumbar HNP Epidural hematoma While cross-examining, has it was not even pointed out suggestively and acceptably that the procedure explained by him for hemilaminectomy, incorrect or the reason for adopting that kind of surgery is defective. Therefore, on the assumption that if full laminectomy had been done, problem would not have been arisen, we are unable to find fault, in the surgery performed by 1st opposite party.
33. According to complainant, before surgery, he was non-insulin dependent diabetic and because of this surgery and administration of epidural injection, he became insulin dependent diabetic. Epidural injection was administrated to control the pain in the spinal region, since the surgery has been carried out there, not disputed. Though, it is alleged in the complaint, that because of administration of epidural injection, the complainant become an IDDM patient, to support the same no expert evidence was let in and no literature to that extent also brought to our notice. In the written version, the opposite party has stated, that the complainant has become an IDD patient, due to administration epidural injection, is baseless, which is reiterated in the written submission also, as seen from page 27. RW1, has deposed that the latest view in this regard is that Epidural injection/ steroid injection, can be administered pre-operatively, as well as post-operatively, even if the patient is a diabetic, since local action is more than the systematic action of the steroid.
As seen from the literature, number of studies revealed the use of epidural corticosteroids for treating spinal pain, but few controlled clinical trials. Despite the lack of universal acceptance, they are commonly used to treat both radicular and axial pain resulting from lumbar disc disease. It is further seen the use of epidural steroids injection is relieving pain and restoring function, when they are used to facilitate a rehabilitation program, rather than as sole intervention. Literature does not reveal the use of epidural, will lead to a situation, if administered to diabetic, non-insulin dependent, he will become insulin dependent. While cross-examining RW1, it is not acceptably put to RW1, pointing out any medical literature that administration of epidural injection, lead to the situation, viz. a non-insulin dependent diabetic become insulin dependent diabetic. Thus, on this ground also, the 1st opposite party cannot be held responsible, for the alleged suffering of complainant as if it had happened due to mismanagement of surgery.
34. As disclosed by the discharge summary at Bangalore, a cyst was noted after 2nd operation in Bangalore. An attempt was made to say that, as if it was resulted due to the defective operation, done by the 1st opposite party. We find no expert opinion, or any medical literature to support the said allegations. The Bangalore doctor, who performed the surgery, at later point of time, also has not noted anything wrong in the previous surgery, though he performed full laminectomy. The postoperative MRI, after first operation, i.e., Ex.A11, did not show the existence of cyst at L5-S1 level, whereas the postoperative MRI scan Ex.A17, taken after the 2nd operation at Bangalore alone showed the existence of cyst at L5-S1 level, for which, as rightly contended by the 1st opposite party, he cannot be held responsible.
35. Ex.A18, is the ENMG report dt.26.4.99, which says that "Nerve conduction study reveals evidence of partial damage to bilateral post ganglionic L5-Sq radicles and anterograde degeneration (right side more affected than left side)", which is the condition of the complainant. According to complainant, the 1st opposite party's negligence act is the cause. 1st opposite party has done the surgery only at L3-L4, L4-L5 level, on the right side, whereas he has not touched the left side. Therefore, the partial damages, said to have taken place, as reported by Ex.A18, cannot be attributed to the surgery performed by the 1st opposite party, and if at all that should have been the new problem, on the left side, and not on the right side, as rightly explained by the 1st opposite party.
36. From the above facts, it is seen that the opposite parties have only followed the established procedure, and it is not made out that they have deviated from the protocol while discharging their duties, as prudent doctor. In this view, as held by the Apex Court, negligence cannot be attributed to a doctor, so long as he was performing his duties to the best of his ability, with due care and caution. Merely, because the doctor chooses one course of action, as did by 1st opposite party, preferring hemilaminectomy, instead of full laminectomy, he can not be made liable, since the course of action, as explained by him was acceptable to the medical profession, since no contra evidence, based upon the expert opinion was made available to the commission. The study discloses, "failed back" surgery syndrome is very common, and therefore, if for some reasons, the complainant was unable to be cured fully as desired, it may be due to some external reasons, and certainly not due to any defect in the surgery, and in this view, we are constrained to hold, that there was no negligence of any kind, on the part of either 1st opposite party, or in the 2nd opposite party. In fact, so far as the 2nd opposite party is concerned, no specific accusation was made, being the hospital, which provided infrastructure. The fact that the complainant stayed in the hospital for 21 days, cannot be termed at any stretch of imagination, as negligence or they were compelled to stay in the hospital, because of the mismanagement in the surgery etc., and on this ground also the complainant is not entitled to any relief.
Thus, viewing the case from all possible and probable angles, we conclude that the complainant have miserably failed to prove that the 1st opposite party had committed any medical negligence or mismanagement in the surgery. Thus holding, point Nos.1 and 2 are answered accordingly.
37. Point No.3:
In view of the findings in point Nos.1 and 2, the complainant is not entitled to any relief, under any heads. This point is answered accordingly.
38. In the result, the complaint is dismissed, but under the peculiar circumstances, directing the parties to bear their respective cost.
PON GUNASEKARAN M. THANIKACHALAM MEMBER-I PRESIDENT Exhibits of the complainant A1 29.10.98 Report from clinic A2 30.10.98 Note from Dr. Gopikrisna A3 30.10.98 Report from KG MRI scan centre A4 19.11.98 Certificate by Kovai Medical Centre and Hospital Ltd., A5 23.11.98 Discharge summary by Kovai Medical Centre & Hospital Ltd A6 22.12.98 Report form Surya Neuro Centre A7 22.12.98 Certificate by Kovai Medical Centre & Hospital Ltd., A8 Review advice from Dr.Gopikrishna A9 05.01.99 Review summary by Kovai Medical Centre & Hospital Ltd., A10 05.01.99 Certificate given by Dr.Gopikrishna of Kovai Medical Centre A11 21.01.99 Report from KG MRI centre A12 24.01.99 Discharge summary (KMCH) A13 23.01.99 Certificate by Dr.Gopikrishna of Kovai Medical Centre A14 21.02.99 Report given by Jubliee- Diagnostic Centre, Bangalore A15 21.02.99 Discharge summary A16 14.04.99 Certificate by Dr.Altaf Ahmed, Phusiotherapist A17 25.04.99 Report from Medinova Diagnostic Services Ltd., Bangalore A18 26.04.99 ENMG Report Hosmet Hospital A19 07.04.99 Discharge symmary, DG Hospital A20 07.05.99 Notice by R. Shunmugam on behalf of complainant A21 08.06.99 Reply by Rmani & Shankar to the counsel for the complainant A22 23.08.99 Rejoinder by the complainant's advocate A23 18.02.00 Special leave sanctioned letter Exhibits of the 2nd opposite party B1 26.02.96 Referal leter of Dr.George Jayaprakash B2 26.02.96 Progress record pertaining to the complainant B3 04.03.96 Anesthetic report B4 04.03.96 Operation sheet B5 02.11.98 Operation sheet B6 04.03.96 Informed consent B7 02.11.98 Informed consent B8 27.02.96 Blood report (shows high sugar) B9 02.11.98 -do-
B10 20.01.99 Blood report B11 22.08.98 Referral letter of Dr.A.K. Shinde B12 26.08.98 Discharge summary B13 07.05.99 Legal notice to 2nd OP B14 08.06.99 Reply by 2nd OP B15 14.11.07 Expert affidavit of Dr.S. Rajagopal B16 Internal download of spinal stenosis B17 Web download of spasticity B18 Medical literature PON GUNASEKARAN M. THANIKACHALAM MEMBER-I PRESIDENT INDEX : YES / NO Rsh/d/mtj/OP Orders