Appeared at the time of arguments:

For AIIMS :                      Mr. Tushar Gupta, Advocate

For Lt. J.S. Bedi & Ors.: Ms. Anubha Agrawal, Amicus Curiae

For Dr. Arvind :               Mr. Sanjeev Kr. Dubey, Sr. Advocate

Pronounced on:  01^st  December  2022 

ORDER

DR. S. M. KANTIKAR, PRESIDING MEMBER

1.       Both the Appeals have been filed under Section 21 of the Consumer Protection Act, 1986 by the Opposite Parties (hospital and doctors) challenging the Order dated 02.11.2007 passed in C.C. No. 131/2003 by the State Consumer Disputes Redressal Commission, Delhi (hereinafter referred to as the ‘State Commission’) whereby the complaint was allowed and the lumpsum compensation of Rs. 1,00,000/- was awarded on the ground of deficiency.

2.       Brief relevant facts of the case are that, initially Complainant was examined in AIIMS on 09-08-2001 by Dr. Arvind Kumar (OP No.2) and based on CXR and C-T Scan, surgery was advised for the ‘Anterior Mediastinum Tumor’. and the Complainant was admitted for surgery on 20-08-2001. The OP-2 and his team performed surgery Median ‘Sternotomy’ and ‘Thymectomy’   on 22-08-2001. After operation, the Complainant was told by the OP No. 2 that he had to cut his left Phrenic Nerve as the same was passing through the Tthymaic mass and there were no other option left to remove the thymas mass. The consequence of cutting of left Phrenic Nerve was that his left diaphragm was raised and exists like this till date.

 3.      As soon as the Complainant regained consciousness he realized that he was not able to speak and it was informed to  the OP No. 2. He took it very lightly and told to the Complainant that there may be an injury to vocal cords in the process of giving General Anesthesia (GA) before the surgery, which occurs very usually and the voice comes back to normal 3-4 days.  The Complainant was discharged on 30.08.2021 i.e. after 8 days of the surgery, but there was no improvement in his voice. The Complainant went to ENT Department (AIIMS) to get himself examined for the problem of voice suffered by him. After examination, the ENT Department of AIIMS declared left cord palsy (post-operative) and suggested the Complainant for speech Therapy. It was alleged it was  the utter negligence of OP No.2 and  further alleged that specimen of the ‘Thymus Mass’ removed after the surgery   was not sent for Histopathology test within time, therefore no definite opinion was given.  Dr. Arvind OP No. 2 based on HPE report   advised radio therapy as a   proper treatment, but Complainant did not show any improvement in his voice or movement of the left vocal cord.   Being   aggrieved the Complainant filed complaint before the State Commission and claimed an amount of Rs. 65,25,000/- as compensation from the OPs.

4.       The Opposite Parties in its written version denied negligence on their part. The complainant is not a consumer. The AIIMS is totally funded by Central Government and not amenable under the Consumer Protection Act, 1986. Therefore the present complaint is liable to be dismissed. It was further submitted that the surgery was performed through mid-sternotomy. A big mass was found, more on the left side which extended up to the arch of aorta. It was completely engulfing the left phrenic nerve. It was not possible to remove the tumor in toto without sacrificing the left phrenic nerve. Therefore, in the best interest of the patient on table decision was taken by the operating surgeon to resect the left phrenic nerve. It was an accepted standard of treatment of thymoma tumor.  Thereafter during ENT examination, the patient was detected to have left vocal cord palsy and accordingly speech therapy was advised.  All the possibilities were kept in mind after the surgery to explain his hoarseness.

5.       After hearing both the parties, the State Commission partly allowed the Complaint with following observation: 

“20. Aforesaid conspectus of rival claims and contentions lead to the conclusion that the OP was deficient firstly in cutting left phrenic nerve of the complainant negligently While excising thymus mass as this could have been avoided and further that they left the phrenic nerve without stimulating the same or without suturing its end that caused paralysis of the left phrenic nerve as well as diaphragm. This negligence is demonstrated firstly from tine X-ray report as well as the opinion given by the Doctor of London vide letter dated 11^th October 2004. Secondly, inspite of cutting of the left nerve vocal cord which was subsequently rectified though partially by the surgery undertaken by Japanese Surgeon Dr. Shankarshana.

21. Even if we accept the contention of the OP that the nerve was to be sacrificed still it was the duty of the OP to see that the phrenic nerve ends are sutured or stimulated so as not to result in paralysis.

22. In our view, lumpsum compensation of Rs. One Lack including the cost of litigation will meet the ends of justice.”

6.   Aggrieved by the order of the State Commission, both the Appellants/ OPs filed separate Appeals on the preliminary ground of maintainability. We have heard the learned counsel on both the sides and perused relevant medical literature from standard test books Harrison on Principles of Internal Medicine, Fritz & Shield on General Thoracic Surgery and Schwartz's Principles of Surgery.

7.       We have heard the learned counsel on both the sides. Perused the entire medical record, inter alia the Order of State Commission and the literature on thoracic surgery.

8.       On the issue of maintainability of Complaint, we agree with the view taken by the State Commission that the Complaint is maintainable under the Act, 1986.   

9.       On merits, according to the operative notes, the thymic tumour was large, in the chest wall extended up to aortic arch and Innominate vein. As per surgical text books[1] and literature, if the tumour engulfed the Phrenic nerve, then two treatment options were available. One was to open the tumor capsule and dissect the tumor along the phrenic nerve and save the nerve, but it would have left behind the residual tumour along the phrenic nerve. The second option was to ensure complete resection of tumour without opening the capsule with phrenic nerve. Moreover, if the other phrenic nerve is normal and patient does not have Myasthenia Gravis or any other preceding respiratory or cardiovascular illness. In the instant case due to achieve complete tumor excision sacrificed the ipsilateral phrenic nerve was chosen by the OP-2. It is an accepted mode of treatment. It was not proper by leaving part of tumor, as it would have endangered patient's life in future. Thus, it was due diligence of OP-2 exercised the care during entire procedure.  

10.     It is pertinent to note that the complainant (patient) was totally asymptomatic and healthy. The tumour was accidentally detected on X-ray only and the nature, size of the same was confirmed by FNAC & C.T. Scan. However, the Complainant being a doctor (physician) in his affidavit stated that pre-operatively OP-2 did not discuss about the possibility of cutting/injury to the phrenic nerve. The OP-2 on his own cut the phrenic nerve causing complete left diaphragm paralysis for rest of the life. In the post-operative notes or in the discharge summery did not mention about cutting of left RLN. If the size of tumour is big then a thorough preoperative evaluation should be done and possibly Radiotherapy should be advised to get the size reduced and hence to reduce intra operative complications.  Even in case of tumour engulfing phrenic nerve the surgeon is supposed to save the phrenic nerve by leaving a small mass surrounding the nerve to be followed by postoperative radiotherapy so that at least Diaphragm paralysis could have been saved. Post operatively, the biopsy specimen was not sent properly to the Pathology Department, which does not carry much importance to the allegations of negligence. 

11.     During ENT examination at AIIMS the patient was detected to have left local cord palsy. Therefore, conservative treatment and speech therapy was advised. In the best interest and as per the standard treatment protocols, the complainant was advised to undergo radiotherapy at PGI Chandigarh because the patient belonged to Chandigarh City. The patient work-up and a videostroboscopy was done by Dr. K.K. Handa. The patient was given a tentative date on 2.8.2002 for thyroplasty. However, the patient being eminent physician himself decided to contact Dr. Nobuhiko Isshiki from Japan, who advised him to contact some doctors at Bangalore. Same was advised to him by the ENT doctors at AIIMS for Type-1 thyroplasty. Thereafter, to correct paralysis of the vocal cord the complainant underwent thyroplasty operation in Bangalore and could regain his voice to some extent. As far as the paralysis of the diaphragm (left), due to cutting of left phrenic nerve   the complainant was still suffering and   consulting the doctors in India as well as abroad for the same.

12.     It is pertinent to note that the patient was doctor himself, but he was not informed about the post-operative complications of nerve injury during such surgery, which likely to cause loss of voice and restricted diaphragm movements. Moreover, in our view, the operative procedure adopted by the Opposite Parties was an accepted reasonable standard of practice, but not having a proper informed consent, it amounts to negligence per se. Accordingly, we affirm the Order of State Commission, which awarded just and reasonable compensation to the Complainant.  

13.     Based on the discussion above, both the Appeals are dismissed.

          There shall be no order as to costs.