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D.P. Wadhwa, J. (President)

1. This is an action for damages for professional negligence. Complainant is Manish Sood, at the relevant time, a young Merchant Navy trainee. The opposite parties are Dr. J.S. Arora, an Orthopaedic Surgeon and Holy Family Hospital (Hospital, for short), Hospital is sought to be held liable vicariously. Manish was suffering from Lumbar Disc Prolapse and was advised laminectomy of L4-5 region. He was operated upon by Dr. Arora on 5.8.91 at Hospital Manish did not get any relief after the operation and when X-ray and MRI were taken it was found that laminectomy has been done at L3-4 region. Manish again went in for operation. This time operation was performed by Dr. (Col.) V.S. Madan, a Neurosurgeon, at Sir Ganga Ram Hospital who did laminectomy at L4-5 region. Manish recovered from his illness. He now complains of medical negligence by Dr. Arora and damages both special and general., he has put the figure at Rs. 20.00 lakhs. When the complaint was filed there were two respondents, Dr. Arora and Holy Family Hospital. Thereafter by an order New India Assurance Company was added as a third opposite party as it was stated that Dr. Arora had insurance cover for any alleged claim of medical negligence. Dr. Arora says that Manish was referred to him by Holy Family Hospital but Holy Family Hospital says Manish was the private patient though operation was performed in its hospital. However, it is their affair. Dr. Arora was admittedly a senior Orthopaedic Surgeon attached to the Hospital and services were provided by the Hospital. As to what arrangement inter se exist between Dr. Arora and Holy Family Hospital is not known to Manish.

2. Manish was admitted in the Hospital on 4.8.91 and discharged on 11.8.91.

3. Manish was a trainee in the Merchant Navy with Great Eastern Shipping Co. Ltd. and was getting a stipend of Rs. 1500/- per month. He was entitled to certain perks. after the completion of his training he would have been employed as Nautical Watch Keeping officer with a monthly salary of about Rs. 15,000/- plus perks. In April, 1991 he got pain in low back. He was admitted in the Padmini Nursing Home, Madras on 29.4.91 where he remained till 14.5.91 Dr. Derek D'Souza, Consulting Orthopaedic Surgeon examined him and diagnosed that he was suffering from lumbar disc prolapse and advised conservative treatment with bed rest, traction etc. Conservative treatment it appeared failed. He was advised to have 'Myelogram' done. This was got done on 7.5.91 which showed "extramural indentation in the dye column at L4 L5" He was advised Percutaneous Lumbar Discectomy and if that did not give complete relief, he was to under to surgery. Manish then came to Delhi. On coming to Delhi he consulted Dr. U.K. Sadhoo Orthopaedic Surgeon who confirmed that there was an indentation of the lumbar L4/L5 a region and advised operation (decompression). Manish came to know about Dr. Arora working as Consulting Orthopaedic Surgeon in Holy Family Hospital, a reputed and prestigious Hospital. He consulted Dr. Arora who first on 8.7.91 advised him to try physiotherapy and in case there was no improvement then, if fit, to go for surgery (disc decompression). Dr. Arora again examined him on 27.7.91 and advised surgery. In the prescription (Marked Exh. A1) he wrote:

2. Compression of the thecal sac at L3-4 level from the posterior aspect by? Cortical bone fragments? Mettalic (metallic?) shavings.
3. Mild to moderate lumbar canal stenosis".

7. When Dr. Madan saw the MRI he noted that it was a case of L4-5 disc prolapse and wanted Manish to get himself admitted in the Nursing Home. Manish was admitted int he Nursing Home on 17.11.1991. He was operated upon by Dr. Madan next day. He was fit for discharge on 29.11.91. Discharge report shows that diagnosis was Disc L4-5 Prolapse. At the time of discharge the condition of Manish was satisfactory. Thereafter condition of Manish progressively improved with the result he fully recovered. In his prescription dated 14.2.92 as a follow up case of Disc L4-5 Prolapse, he was advised by Dr. (Col.) Madan to get his X-ray and asked Manish to come to him on 17.2.92 for review of his fitness. On 18.2.92 Dr. Madan gave medical report of Manish which is as under:

Advocate: Was there any defect in the big toe?
Witness: It is not mentioned here.
Advocate: I come to para 3, Dr. Arora. Can any other member of your operation team corroborate or testify on the contents which you have stated in para-8?
Witness: The only other member I know of is Dr. Munjal; who was the Registrar at that time and I have no knowledged where he is now and I don't think I can produce any witness. These are very specific things".

40. In fact there has been no attempt by Dr. Arora to produce Dr. Munjal. It is not that he could not be available. In the absence of any surgical nots and on the basis of the records and conduct of Dr. Arora, it is difficult to believe his version. On the basis of available facts and evidence it is reasonable to conclude that Dr. Arora actually operated upon only the intervertebral space between L3 and L4 vertebrae and therein performed laminectomy of L3 vertebra and partial laminectomy of L4 vertebra. He did not operate upon the correct L4-5 intervertebral space-the primary preparatively suspected site of disease in Manish - as suggested by earlier myelogram report and as per his own pre-operative diagnosis and planned laminectomy surgery of L4-5 region. As such, Dr. Arora failed to detect and appropriately deal with the prolapsed disc lying between L4 and L5 vertebrae, the real cause of spinal cord compression and disease symptoms in Manish. On account of this serious lapse, the surgery performed by Dr. Arora did not yield any beneficial results in Manish's condition. It was only when Dr. (Col) Madan subsequently operated upon in the region of L4-L5 space, removed the diseased L4-L5 disc and thereby released the pressure on the spinal cord that Manish got relief from his painful symptoms and recovered. There was also no justification for Dr. Arora to do laminectomy at L3-4 region when there was no evidence beforehand to any disc prolapse there. It appears that once having come to know that he had performed laminectomy of L3-4 and not of L4-5 he started changing his version. There were no clinical signs or investigation findings which called for laminectomy of L3-4 vertebrate. If he had done his job properly Manish would have recovered but he did not. He was in the same condition as he was before the operation. He went on suffering. It was only hen Dr. (Col.) Madan did laminectomy lf L4-5 region that Manish fully recovered.We give no credenfe to another version of Dr. Arora that disc prolapse could have happened again even after the operation. Dr Arora's contention that while he had dealt with the prolapsed disc between L4-5 at the time of surgery by him, there was a subsequent relapse of disc protrusion at this site, does not stand scrutiny. He did not operate at the L4-L5 disc space which was dealt with later by Dr. (Col.) Madan.