State Consumer Disputes Redressal Commission
Chairman & Managing Director Kamineni ... vs Smt.K.Usha Rani W/O.A.Kumar Hyderabad ... on 19 September, 2013
BEFORE THE A
BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.
F.A.No.862/2012 against C.C.No.588/2011 District
Forum-I, Hyderabad.
Between
Chairman
& Managing Director
Kamineni
Hospital Services Pvt. Ltd.,
Now
rep. by its Chief Executive Officer
Dr.B.Shashidhar
Reddy S/o.B.Satynarayan
Reddy,
aged about 50 years,
R/o.Kamineni
Health Services Pvt. Ltd.,
#
4-1-227, King Kothi, Hyderabad. Appellant/.
Opposite
party
And
Smt.K.Usha
Rani W/o.A.Kumar
Aged
about 55 years, Occ:Housewife
R/o.H.No.8-41-11/1,
Mc.Dowell Colony
Uppal
Post, Hyderabad-500 039. Respondent/
Complainant
Counsel
for the Appellant : M/s Srinivasa Rao Pachwa
Counsel for the Respondent: M/s TSK Trilok Raj
QUORUM: SMT.M.SHREESHA, HONBLE
Incharge President
AND
SRI S.BHUJANGA RAO, HONBLE MEMBER.
THURSDAY, THE NINETEENTH DAY OF SEPTEMBER, TWO THOUSAND THIRTEEN Order (Per Smt.M.Shreesha, Honble Incharge President) *** Aggrieved by the order in CC 588/2011 on the file of District Forum-I, Hyderabad, the opposite party preferred this appeal.
The brief facts as set out in the complaint are that the complainant was suffering from lower back pain and numbness in the left lower limb and consulted the Orthopaedic surgeon Dr.Kamaraj/Krishna Subrahmanyam for diagnosis and treatment.
The doctor advised for operation and informed the complainant that she would be relieved of the pain after Laminectomy and Disectomy performed on 03-2-2006. After the surgery, the complainant had some relief but the weakness and numbness continued in her left leg. When the pain reappeared again she approached Dr.Krishna Subrahmanyam who had operated her earlier, who asked the complainant to get admitted in the hospital on 26-3-2007 and she was discharged on 31-3-2007 after all routine check-ups but without any special treatment. The complainant submits that due to the delay in the treatment her pain aggravated and affected her mobility and she was advised by Dr.Rajeev Arab IICT Doctor to visit Dr.Raghav Dutt of Uday Clinic for second opinion on 04-6-2008. After all the clinical tests Dr.Raghav Dutt had directed her to visit Muralidhar Joshi, Consultant Critical Care Anaesthesiology and Pain Relief for his advice. As per his advice complainant was admitted on 26-6-2008 in opposite party hospital for Fluoroscopy assisted epidural Adhesiolysius due to failure of back surgery syndrome.
Dr.Joshi of OPs hospital tried to subside the pain for three months and gave medicines but there was no relief and thereafter a workshop on pain relief was organised by OP hospital and the complainant was tested by OP doctors with spinal cord stimulator lead for pain relief on 06-2-2009 which was covered by the media and after that the Lead was inserted in the complainants spine and she found 60% relief. Again after the expiry of third day, the lead was pulled out and the complainant was advised by the doctor to go for permanent implant of the spinal cord stimulator as it was the first of its kind, the complainants husband got the approval from the Director IICT and was sanctioned an amount of Rs.2,65,000/- for the purchase of spinal cord stimulator. Neither Dr.Muralidhar Joshi or Raghav Dutt have explained to the complainant about the side effects of the implant. This stimulator was implanted on 18-2-2010 and the complainant was discharged with a note to see Dr.Raghav Dutt after a week.
Even before completion of the week, some liquid was oozing from the implant and the pain was severe.
Dr.Raghav Dutt of Uday clinic advised for removal of the liquid and dressing every day, the process went on every day for a month. Finally Dr.Raghav Dutt in consultation with Joshi advised the complainant to get the implant removed and on 31-3-2010 the implant was removed in OP hospital and the complainant was informed that such infections do occur in some patients and suggested for implanting it after 6-8 weeks for which the complainant was not willing to take a risk and she had already suffered a lot of pain.
The complainant submits that as per the advice of Dr.Raghav Dutt, she took an MRI of the left leg at NIMS on 30-7-2010 and was informed that there was a Tumour Benign Cartilaginous of the left leg i.e on the left hip. The tumor was the size of a line which would have taken 8-10 years to develop, she was advised by Dr.Raghav Dutt to get it removed and on his advice she was admitted in OP hospital on 23-11-2010 and on 25-11-2010, the operation was performed by Dr.Raghav Dutt under GA and was discharged on 30-11-2010 in a stable condition with a note to see Dr.Raghav Dutt at Uday clinic and OP charged Rs.40,000/-. The complainant submits that doctors at OP hospital were responsible for complainants health and therefore she wants refund of the spinal cord stimulator charges and also pay for not identifying the problem in her left leg which was revealed only after the MRI test. The treatment given by OP doctor between 03-2-2006 and 31-3-2010 is the main reason for the pain. They ought to have taken the MRI of the left leg which they did not do as there was a breach of duty and resulting damage. The complainant got issued a legal notice to OP on 10-3-2011 to pay damages of Rs. 6 lakhs and OP requested for two weeks to reply but even after that there was no response. Hence the complaint seeking directions to the OPS to pay compensation of Rs.6 lakhs together with costs of Rs.10,000/-.
OP filed counter stating that complainant aged 49 years had consulted Dr.Muralidhar Joshi on 06-6-2008 as an outpatient as she was referred by Dr.Raghav Dutt of Uday clinic for complaint of lower back pain and numbness of left lower limb for 3 years. Initially she was presented with a history of lower back pain. She had undergone Laminectomy in another hospital in 2006 and was also on conservative treatment, physiotherapy, physical exercises and other medications. On examination, Dr. Muralidhar Joshi found that she had tenderness in the mid line at L4, L5 and S1 with reduced sensation. After two weeks the patient came with complaint of unbearable pain and the doctors considered Epidural Adhesiolysis percutaneous fluoroscopy technique for her problems. This point was discussed with Dr.Raghav Dutt and Dr.Rajeev Arab of IICT company. The patient was admitted on 26-6-2008 for Epidural Adhesiolysis and was discharged on 28-6-2008 in a stable condition. She came for follow up on 11-8-2008 and 03-10-2008 though initially the patient showed some improvement, the patient stated that the old pain recurred and once again visited the OP on 17-1-2009 and as an International workshop on Pain Management was held in the month of February, 2009 and many national and international experts on pain management participated, the doctors discussed the patients problem with one Dr.Ram Pasupuleti who is a pain Physician from USA and after examining the complainants record and discussing with the patient and her husband and son about the techniques, benefits and side effects suggested that the patient might benefit from Spinal Cord Stimulation.
A trial stimulation was first undertaken and a trial lead expense was borne by St.Jude Company and the procedure was done on 06-2-2009 and the complainant got good relief from pain. The complainant met Dr.Ram Pasupuleti on 07-2-2009 and expressed that she had 60% pain relief. The trial lead was taken on 09-2-2009 and the patient was discharged in a stable condition and the patient had pain relief for two weeks even after removal of trial lead which is evident from the video clip available in the complainant own words.
Thereafter the complainant purchased the said instrument directly from St.Jude company and Spinal Cord Stimulation and Lead implantation was done on 19-2-2010 by both Dr.Raghav Dutt and Dr.Muralidhar Joshi. The setting of the stimulator was adjusted by the complainant herself under the direction of Dr.Manoj Saxena of St.Jude company. The complainant was discharged on 25-2-2010 after 8 days with an advice of review after one week. An x-ray was also taken before discharge to know the location of the pulse generator and the lead tip. After a week, the patient complained of some discharge from the wound site, Dr.Raghav Dutt immediately sent the fluid for culture and sensitivity and the result came as sterile. Repeated cultures were done over the next few weeks which also showed the result test sterile. Though the patient said she was getting good pain relief in view of the risk of leaving an implant with fluid coming out over the spinal cord, finally the implant was removed on 31-3-2010 and the patient was discharged on the same day and the patients wound healed in a weeks time.
Appellant/Opposite party submits that the removed implant was stored in a sterilized condition and the doctors Dr.Muralidhar Joshi and Dr.Raghava Dutt have discussed regarding reimplantation and almost every doctor opined that it is not advisable in view of the patients condition. The complainant was again admitted in the OP hospital on 23-11-2010 with a complaint of pain in the left lower back radiating to left leg and she was diagnosed to be having Benign Proliferative Chonduoroblasta lesion and after taking her consent , she was operated and lesion at grater trochanter was removed by Dr.Raghava Dutt on 25-11-2010 and she was discharged on 30-11-2010. Any pain arising the hip does not radiate below the knee, the tumor which was present in the left grater trochanter was well encapsulated and was not causing any pressure on the sciatic nerve therefore the tumor is not responsible for the left calf pain. The presence of the tumor was incidental apart from the lower back pain which she was having for a long time. They deny that doctors of NIMS opined that the tumor was present for 8 to 10 years.
They deny for want of knowledge any details about the surgery supposed to be done in the year 2006. They issued a detailed reply to the legal notice on 20-6-2011 and submit that there is no negligence at all on their behalf.
Based on the evidence adduced i.e. Exs.A1 to A15 and B1 to B5 and the pleadings put forward, the District Forum allowed the complaint in part directing the opposite party to pay Rs.1,50,000/- as compensation for the hard ship and mental agony together with costs of Rs.5,000/-.
Aggrieved by the said order, opposite party preferred this appeal.
The brief point that falls for consideration is whether there is any negligence on behalf of the Opposite party and if the complainant is entitled to the relief prayed for in the complaint?
The appellant/opposites party filed their written arguments along with medical literature.
The respondent/complainant filed by way of additional evidence filed MRI of lumbar spine and hip joints and marked them as Exs.A16 and A 17 which were taken on record subject to proof and relevance.
It is the complainants case that she was suffering from lower back pain and numbness in the left Lower Limb in the year January, 2006 and consulted Dr.Kamraj and Dr.Krishna Subrahmanyam of OP hospital who performed Laminectory and discectomy on 03-2-2006 but the pain recurred again and she was admitted in the hospital on 26-3-2007 and discharged on 31-3-2007 without any special treatment. As the pain aggravated, she consulted Dr.Rajeev Arab IICT who referred her to Dr.Raghava Dutt of Uday clinic for second opinion on 4-6-2008 and this doctor advised her to meet Dr.Muralidhar Joshi for pain relief in OP hospital and on his advice she was admitted on 26-6-2008 in OP hospital for Fluoroscopy assisted epidural adhesiolysius. The complainant further submits that Dr.Muralidhar Joshi stated that he would try to subside the pain for 3 months and only if it failed he would take the next course of action and as the pain recurred and as admittedly there was a pain relief workshop in OP hospital attended by International experts, the complainant was tested by OP doctors and a Spinal Cord Stimulation was inserted on a trial basis on 06-2-2009.
The complainant herself admits that she found 60% with the insertion of the lead and thereafter as it was a trial insertion, it was removed on the third day and she was advised to go for permanent implant. The complainant got Rs.2,65,000/- sanctioned by IICT for the purchase of Spinal Cord Stimulator from St.Jude company and it is an admitted fact that on 18-2-2010 the Spinal Cord Stimulation was done.
The brief pint that falls for consideration here again whether there was negligence on behalf of the Opposite party in implanting the permanent Spinal Cord Stimulator?
It is an admitted fact that the complainant herself has agreed for the trial implant which gave her 60% relief and only thereafter the OP had undertaken the permanent implant of the spinal cord stimulator on 18-2-2010. It is the appellant/OP case that the result of the trial stimulation was discussed with Dr.Raghava Dutt and Dr.Rajeev Arab of IICT and the complainants husband purchased the instrument directly from St.Jude company and the procedure was conducted by both Dr.Raghava Dutt and Dr.Muralidhar Joshi.
The discharge summary also shows that the patient was in the hospital for 8 days evidenced under Ex.A5. Thereafter it is the complainants case that she developed some oozing from the wound site and the pain was severe and she contacted Dr.Raghava Dutt of Uday clinic who advised for forcible removal of the liquid and dressing till the oozing stopped. Dr.Raghava Dutt examined the patient and sent the fluid for culture and sensitivity and repeated cultures showed the result as sterile. It is the appellant/OP case that in view of the risk of leaving an implant with fluid, coming out over the spinal cord, the implant was removed on 31-3-2010 and in a weeks time the patients wound healed, the implant was stored in a sterilized condition in the hospital. The doctors, Dr.Muralidhar Joshi and Dr.Raghav Dutt discussed with other experts regarding re-implantation and almost everybody opined that it is not a wise decision in view of the patients vulnerability. From the aforementioned, we observe that the Opposite party has taken all the precautions including a TRIAL implantation and only after the patients response with 60% pain relief did they venture into implantation of spinal cord stimulator and even then the procedure was joinly conducted by OP hospital and Dr.Raghava Dutt of Uday clinic and when liquid was oozing from wound site, it was rightly tested for sensitivity and culture and though the results were found sterile, the OP had rightly decided to remove the implant after consultation with other experts on account of patients vulnerability. A careful reading of the discharge summary, Exs.A1 to A5, shows that the patient was suffering with this back pain right from the year 2006 and has underwent a lot of treatment and only with her consent, the doctors of OP hospital had advised for this implantation of the lead which was subsequently removed when the patient developed leakage from the wound side. Therefore we see no negligence in the line of treatment accorded by the OP hospital who has taken all caution and care as per standards of normal medical parlance and no negligence can be attributed to them on this aspect.
The second point for consideration is whether the appellant/OP failed to identify the lesion in her left leg which was according to the complainant later identified by the doctors at NIMS in an MRI scan and who informed her that lesion had taken 8-10 years to grow. It is the contention of the complainant that the bone scan and the MRI scan ought to have been done by the Opposite party. It is the appellant/Opposite party case that the complainant was admitted in OP hospital on 23-11-2010 with complaint of pain in the left lower back radiating to left leg and only at that point of time, she was diagnosed as Benign Proliferative Chonduroblasta lesion and only on her consent, she was operated on 25-11-2010 and discharged on 30-11-2010. The learned counsel for the appellant relied on the medical literature which defined Chonduroblasta as a Benign bone tumor typically affecting epiphyses of long bones from individuals with an immature skeleton. It is a rare neoplasm accounting for less than 1% of all bone tumors. This definition of Chonduroblasta was taken from Atlas of Genetics and Cytogenietics in Oncology. The complainant filed this MRI of lumbar spine and hip joint by way of additional evidence admitting that these are not filed before the District Forum and these documents were marked by this Commission by way of giving an opportunity to the complainant as Exs.A16 and A17. Ex.A16 is dated 30-7-2010 and Ex.A17 is dated 31-5-2011.
Ex.A16 shows the impression as follows:
Impression:Degenerative disc disease of lumbar spine.
Mild Listhesis L3 over L4 and L4 over L5.
Diffuse disc bulge at L3-L4, L4-L5 & L5-S1 causing significant narrowing of bilateral neural formaninae.
Ex.A17 shows the impression as follows:
Impression Follow up Scan Post OP Changes noted in the left grater Trochanteric Region with multiple Bone Pieces within it No evidence of bone oedema/induration of soft tissues.
A brief perusal of the discharge summary Ex.A5 and A6 read as follows:
Ex.A5 is dated 18-2-2010 and reads as follows 54 year old Mrs.Usha Rani was admitted with the complaints of low back ache radiating to left lower limb. On admission she was conscious, oriented, PR-84/min, BP-110/70 mmHg, CVS S1-S2+, Lungs-clear, P/A Soft. Necessary investigations were done. SCS implantation was done on 18-2-2010 procedure and post procedure stay was uneventful. She was managed appropriately and is being discharged in a stable condition.
Ex.A8 is dated 31-3-2010 and reads as follows:54
year old Mrs.Usha Rani was presented with the history of low back pain radiating to left lower limb for which she underwent Spinal Cord Stimulator implantation on 18-2-2010 admitted with the complaints of oozing from that site and pain. At admission her vitals were afebrile, BP-120/80 mmHg, PR 74 min., RR 21 per min., CVS-S1-S2 +, RS BAE +, P/A-Soft BS +. Necessary investigations were done. SCS implant removal done under GA on 31-3-2010. Operative and Post operative period was uneventful.
She was managed appropriately and she is being discharged in a stable condition.
Ex.A9 is the prescription given by Dr.Raghava Dutt which speaks about the lesion and advises surgery on 20-11-2010. It is pertinent to note that the complainant has not made this Dr.Raghava Dutt as a party. Ex.A10 is the discharge summary of the OP hospital which shows the final diagnosis and the history of the complainant as follows:
Benign Cartilaginous tumor of Left Proximal femur-? Chondroblastoma, ? Chondromyxoid fibroma DM (Denova) History of presenting complaints:54
year old Mrs. Usha Rani presented to the hospital with complaints of pain in the left hip, difficulty in walking since 3-4 months. Past history of spinal cord stimular Implantation (Feb 2010).
And her review was also suggested to be done at Uday clinic of Dr.Raghava Dutt.
The counsel for the respondent/complainant filed a memo along with medical literature which described the term benign chondroblastoma by Jafee and Lichtenstein to describe a rare neoplasm with a predilection for the epiphyses of long bones thus distinguishing it from the giant cell tumor of bone in which it was stated that epiphyseal chondromatous gaint cell tumour, chondroblastoma accounts for about 1% of all primary bone tumours and appear to arise from secondary centres of ossification. Although the most common sites are the hip, shoulder and knee, there is no part of the axial or appendicular skeleton which can be excluded. Most lesions are seen in adolescence during the period of active epiphyseal growth. Patients present with gradually increasing pain and local tenderness, followed by swelling and limitation of movement of the neighbouring joint. While the fact remains that the complainant was suffering from benign chondroblastoma, and it is also not the complainants case that the opposite party had not diagnosed it correctly or did not remove the lesion correctly. It is her case that it could have been detected at an earlier stage by the opposite party. It is the opposite party cause that there is no nexus between the spinal cord stimulator and the benign chondroblstoma which was later deducted and diagnosed by the opposite party and was also successfully removed.
The National Commission in TARUN THAKORE v. Dr.NOSHIR M.SHROFF in O.P.No.215/2000 dated 24-9-2002 reported in Landmark judgements on Consumer Protection P-410 held as follows:
The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advise and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires In INDIAN MEDICAL ASSN.
v. V.P.SHANTHA (1995) 6 SCC 651 the court approved a passage from Jackson and Powell on Professional Negligence and held that The approach of the courts is to require that professional men should possess a certain minimum degree of competence and that they should exercise reasonable care in the discharge of their duties. In general, a professional man owns to his client a duty in tort as well as in contract to exercise reasonable care in giving advise or performing services.
Supreme Court then opined as under:
The skill of medical practitioner differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence.
The Bolam test:The classic statement of the test of professional negligence is the direction to the jury of Mc.Nair J. in Bolam v. Friern Hospital Management Committee (1957) 2 All ER 118, 121 now widely known as the Bolam test which reads as under:
But where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not is not the test of the man on the Calpham Omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.
His Lordship agreed with the counsels statement that negligence means failure to act in accordance with the standards of reasonably competent medical men at the time was a perfectly accurate statement of the law, provided that it was remembered that there may be one or more perfectly proper standards::
A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. Putting it the other way round, a doctor is not negligent , if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view.
It is the complainants case that the Opposite party should have noticed this lesion and treated her for it. We observe from the record that the Opposite party vide Ex.A10 have established that the lesion was removed and there was no negligence in the very conduction of the operation. It is the appellant/opposite partys case that any pain arising out of the hip does not radiate below the knee. The tumor which was present in the left grater trochanter was well encapsulated and was not causing any pressure in the sciatic nerve therefore to say that the tumor is responsible for her left calf pain is not correct and further submits that the presence of lesion is incidental apart from the lower back pain which she was suffering admittedly from the year 2006. The MRI and bone scan were done by NIMS hospital only on 30-7-2010 while admittedly the implant was removed on 31-3-2010 i.e. 4 months after the date of discharge even thereafter when the patient approached OP hospital again on 23-11-2010, she was rightly diagnosed to be having Benign Proliferative Chonduroblasta lesion which was removed by Dr.Raghava Dutt on 25-11-2010 and was discharged on 30-11-2010. Here also it is not the complainants case that the operation was conducted negligently or that the lesion was not properly removed it is only her case that the lesion ought to have been noticed by the opposite party. Whereas it is the opposite partys case that the pain arising from the hip does not radiate below the knee and that the earlier operation of implantation of spinal cord stimulator has nothing to do with the lesion which the patient had suffered now. In the absence of any documentary evidence to establish her case that there was a nexus between the two or any expert opinion, to establish the same, we are of the considered opinion that the opposite party hospital had taken due care and caution and followed standards of normal medical parlance in treating the patient and no negligence can be attributed to them.
Keeping in view the aforementioned reasons, the law laid down about the negligence, we are of the considered view that there is no negligence behalf of the opposite party in treating the patient and therefore this appeal is allowed and the order of the District Forum is set aside and consequently the complaint is dismissed. No costs.
Sd/-INCHARGE PRESIDENT.
Sd/-MEMBER.
JM Dt. 19-9-2013.