A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
F.A. 1657/2006 against C.D 224/1998, Dist. Forum, Karimnagar
Between:
Dr. G. Parusharamulu, M.S. ENT
Civil Hospital Road
Karimnagar-505 501. *** Appellant/
Opposite Party
And
P. Saritha Devi
D/o. Rama Rao
Age: 28 years
Head Master,
ZPPS, NTPC,
Jyothinagar-505 215
Karimnagar Dist. *** Respondent/
Complainant.
Counsel for the Appellant: Mr. V. Gourishankar Rao
Counsel for the Resp: Mr. M. Ramgopal Reddy
HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT
&
SRI K. SATYANAND, MEMBER
FRIDAY, THIS THE TWELFTH DAY OF JUNE TWO THOUSAND NINE
Oral Order: (Per Hon’ble Justice D. Appa Rao, President)
*****
This is an appeal preferred by the Opposite Party doctor against the order of the Dist. Forum directing him to pay compensation of Rs. 75,000/-, medical expenses of Rs. 53,683/- and costs of Rs. 1,000/- on the ground of medical negligence.
2) The case of the complainant in brief is that on 31.7.1997 she approached the appellant doctor when she had a cyst below the right ear. He advised her to get it operated. Accordingly he performed the operation on 10.8.1997. He charged Rs. 2,000/- for the said operation. While conducting the operation appellant cut the nerve below the right ear due to which she developed ‘near axonatmosis of right facial nerve’ which resulted problems in her expression and sight etc. It was not healed completely for three months. When the appellant referred her to Dr. Mohan Krishna of Hyderabad, she went to him on 19.8.1997 and subsequently to Dr. K. R. Meghanath of Medwin on 12.9.1997. The doctors concluded that she had ‘facial nerve paralysis with dermoid cyst neck.’ Later she was examined at Sri Ramachandra Medical College and Research Institute, Madras. They confirmed the above findings. Later Prof. R. Venkata Swamy of Malar Hospitals, Chennai grafted the nerve. Despite the operation her condition had not changed. She incurred Rs. 72,000/- towards treatment at various hospitals. She lost one academic year. She and her parents suffered mental agony. Therefore she claimed medical expenses together with compensation of Rs. 4 lakhs and costs. for negligence of the appellant in conducting the operation which resulted in ‘facial nerve paralysis’
3) The appellant resisted the case. However, he admitted that she was admitted in his hospital on 10.8.1997 and conducted the operation on 11.8.1997 by removing the cyst. He informed her about the complications even before the operation. She was prepared for the consequences. On 12.8.1997 dressing was done. The nerve was never cut. She made the allegations in order to tarnish his image and to extract more money.
Immediately after the operation, cyst measuring 2.0 x 1.5 x 0.3 cm was sent to Vijaya Diagnostic Centre, Karimnagar for biopsy examination. The report shows that the entire cyst was removed. Expert neurologist had confirmed that the nerve was not cut. The test showed near Axonotmesist of right facial nerve. Dr. Mohan Krishna, Plastic Surgeon and the doctors at Medwin Hospital at Hyderabad did not conduct surgery since the complainant was improving. The discharge card of Medwin Hospital, Hyderabad shows that there was improvement of facial nerve functioning. Had the nerve was completely cut there could not have been improvement. The discharge note further shows that the patient had to undergo physiotherapy for stimulation of facial nerve. The complainant did not come for review. She did not comply the medical advise. Prof. M. K. Murthy of NIMS examined the complainant and the EMNG report shows that “near anotmosis of right facial nerve at the level stylomastoid foramen.” Therefore cutting of the nerve was ruled out. It was a case of near Anonatmosis where the functioning of axons or nerve fibres was lost resulting peripheral degeneration of the conducting structure of the nerve and the supporting tissues are preserved for spontaneous recovery. Regeneration of nerves occur as nerve fibres follow their original channels. In view of the report issued by highly qualified doctors of super speciality hospitals, it cannot be said that there was negligence on his part in treating the complainant. There was no truth in the complaint made by her. It was filed in order to extract money. Therefore, he prayed for dismissal of the complaint with costs.
4) The complainant in proof of her case examined herself as PW1 and got Exs. A1 to A84 marked. Refuting her evidence, the appellant doctor examined himself as RW1 besides RW2 Dr. B. Mohan Krishna, a Plastic Surgeon and RW3 Dr. K. Raja Meganath, an ENT Specialist, and got Exs. B1 to B6 marked.
5) The Dist. Forum after considering the evidence placed on record opined that the complainant had developed facial palsy due to negligent operation conducted by the appellant. It did not believe the expert evidence of RWs 2 & 3 nor the authoritative text books. The extracts from authoritative text books in regard to the problems faced by the complainant were marked as Ex. B4 to B6. Observing that there was medical negligence on the part of appellant it awarded compensation of Rs. 75,000/- besides Rs. 53,683/- towards medical expenses together with costs of Rs. 1,000/-
6) Aggrieved by the said decision the opposite party doctor preferred this appeal contending that the Dist. Forum did not appreciate either the facts or law in correct perspective. It ought to have considered the expert evidence of RWs 2 & 3 who categorically stated that there was no negligence on his part in removing the cyst. Facial palsy is a known complication in all parotid area surgery. More over she did not get proper dressing after the surgery, as such she developed infection. It might have led to facial palsy. Apart from it, the contention of the complainant that the nerve was cut is not true. Ex. A72 shows that ‘nerve sheeth was intact and there was no injury to the nerve. Ex A78 shows that nerve sheath was only pressed and not cut. Since there was no negligence, he prayed that the appeal be allowed setting-aside the order of the Dist. Forum.
7) The point that arises for consideration is whether there was any negligence on the part of appellant when he conducted the operation by removing the cyst?
8) It is an undisputed fact that the appellant is an ENT specialist. The complainant developed a cyst below the right ear. When she approached the appellant, after conducting the required tests, informed that he would perform excision biopsy for histo-pathological examination. He conducted the operation on 10.8.1997 under general anaesthesia administered by Dr. Y. Madhusudhan Reddy, Senior Anaesthetist. He removed the cyst below the right ear of the complainant measuring 2.0 x 1.5 x 0.3 cm in size and sent for histo-pathological examination. He directed her to remain in the hospital as in-patient for removal of sutures and dressing of the wound. However, on 11.8.1997 itself she got discharged herself stating that she would get it done through a doctor at Godavarikhani. However, she came back on 9th day i.e., on 18.8.1997 with swelling and accumulation of pus. When he asked as to how it had happened, she did not reveal. He observed that there was facial nerve weakness due to infection besides toxic effects of pus over the nerve. On that he referred her to Dr. Mohan Krishna. Even by then she had developed facial palsy. When the cyst was sent to Vijaya Diagnostic Centre for biopsy report the pathologist in his report Ex. A67 Dt. 11.8.1997 mentioned ‘Received a membranous tissue measuring 2.0 x 1.5 x 0.3 cm. The observations are: “Section shows cyst wall composed of serous and mucinous acini of salivary gland. No evidence of malignancy in the material studied.”
9) The complainant complains that she had developed facial palsy as the appellant damaged the facial nerve while performing the operation. It has nothing to do with the infection, she got it, after the operation.
10) The question is whether the appellant had conducted the operation negligently and in the process cut the nerve which resulted in facial palsy?
11) At the outset, we may state that biopsy report does not show that there were remains or remnants of facial nerve tissue so as to conclude that the patient’s nerve was cut. The appellant alleges that the very biopsy report would show what all he did. He removed the cyst which was abnormal in size having three dimensions. Since he had removed the cyst along with cyst wall. In the biopsy report there was categorical mention that ‘cyst wall composed of serous and muinous acni of salivary gland.’ There was no external material attached to them. He alleges that due to infection she developed facial palsy. Despite his request for post operational treatment for bandage and suture removal she did not stay. PW1 complainant admitted in her evidence that “after the discharge from the hospital went to Godavarikhani and stayed there for one week. The dressing was done at my house by my mother. It is not true to say that as my mother did dressing due to that I got infection and pus was formed, and got complications. Witness adds that as per the directions of the opposite party dressing was done by my mother.”
12) The appellant alleges that as she did not stay back for taking post operative treatment, she got the infection which led to facial nerve weakness. He states that ‘the cause for facial nerve weakness was infection causing swelling in the region (parotid), toxic effect of the pus over the nerve was another cause for weakness of facial nerve. Before going further, it would be useful to refer to the passage from The Neurologic Examination, Fourth Edition, written by Russell N. Dejong, M.D., ‘Disorders of the peripheral nerve’ at page No. 548 wherein it is mentioned that “Nerves may be injured by trauma to the neuron or its neuraxis, or by pressure, chemical or toxic influences, interruption of blood supply, infectious process or deficiency in substances normally required for nerve metabolism. Injuries to nerves may vary in degree and extent, and are classified variously. Complete division of a peripheral nerve is known as neurotmesis. There is an interruption of
continuity in all essential structures, with complete loss of conduction of both efferent and afferent impulses. This leads to complete and permanent degeneration of the nerve. In axonotmesis the function of axons or nerve fibres, is lost, with resulting peripheral degeneration of the conducting structures of the nerve, but the supporting tissues, the epineurium and endoneurium, are preserved. Spontaneous recovery may occur, and during regeneration the nerve fibres follow their original channels. In neurapraxia there is a transient block or interruption of continuity resulting from compression or blows by blunt instruments. This is a minimal lesion which does not produce complete paralysis and is not accompanied by peripheral degeneration, although there may be some loss of myelin, recovery is rapid and complete.”
13) PW1 complainant herself admitted that when she came to the appellant when she had developed facial palsy, RW1 accompanied her to RW2 Dr. Mohan Krishna , a plastic surgeon. RW2 categorically stated that “ On 19.8.1997 I have examined the patient Saritha, and she came with the problem at right side facial palsy following surgery for porteid cyst . At the time of examination I found the wound was gape and indurated and vastular indicating presence of infection. I wrote the medicines for control of infection and asked her to come after two weeks. He further stated that if proper dressing is not done after removal of cyst infection would settle and there will be possibility of facial palsy. He conducted nerve conduction test. Ex. A72 report discloses that nerve sheeth was intact and there was no injury to the nerve. If there is any cut to the nerve, it is defined as neuromotosis. He confirmed that “to my knowledge there was no negligence on the part of opposite party in removing the cyst.“ Except suggesting that he was giving false evidence to help his colleague his opinion was not in any way contradicted. Later, the complainant was admitted in Medwin hospital where RW3 Dr. Raja Meghanath, ENT specialist attended upon her.
He categorically stated that PW1 approached one month after the operation and he found that there was infection to the nerve in the operated site. He stated that “I have admitted the patient in Medwin hospital on 3.10.1997. There was infection to the neck in the operated site. I gave medicines to control the infection and planned for wound exploration to see what the problem is and to treat accordingly. Next day we took her to operation room. We re-examined and on enquiring the patient, she said improvement of the facial muscles which were partly not working after first surgery on 10.8.1997. Since there is subjective improvement as told by the patient the decision to operate was deferred and the patient was asked to continue the medicines. The patient was having swelling with some pus coming out at parotid region. The facial nerve comes out from ear and goes through parotid gland. Ex. A72 discloses that the nerve is intact but the function is deranged. It was written as fibrillations means muscles movement. In cases of removing the cyst on parotid region there will be every possibility of developing facial palsy in medical history. In cases of removal of cyst on parotid region only trained person should conduct the proper dressing. If proper dressing is not done the complication of wound getting infected and the possible development facial palsy will arise. I have gone through the Ex. A78, it does not disclose that nerve was cut. It shows nerve is weak and doctors at Rama Chandra Medical College, Madras advised the patient to undergo nerve conduction and EMG tests. I have gone through Ex. 82 the nerve grating done by the doctors at Malhar Hospital, Chennai which shows that the grafting was done on one of the branch which supplies blood to neck muscles. The grafting done to the neck branch will not help function of facial branches. According to me there is no negligence on the part of opposite party in removing cyst of the complainant and there was no deficiency of service on the part of opposite party in giving treatment to her. “ Except routine cross-examination nothing discrediting the evidence was shown by referring to the experts on the subject.
14) PW1 did not examine any expert in order to prove that RWs 2 & 3 experts were giving false evidence in order to help their colleague RW1. We may also mention herein that the complainant attended before the various doctors for the treatment. According to her own evidence, she visited Dr. Venkata Swamy of Madras, Nizam’s Institute of Medical Sciences, Hyderabad. The Dist. Forum after considering the reports Exs. A78 & 79 issued by Sri Ramachandra Medical College & Research Institute, Chennai opined that the appellant blamed Dr. Venkata Swami that due to subsequent operation conducted viz., nerve grafting, the patient got facial palsy. We have closely perused the defence of the appellant as well as the record and no where the appellant stated that due to the operation conducted by Dr. Venkata Swami she had facial palsy. In fact, RW1 himself after finding that she developed facial palsy due to infection took her to RW2 Dr. Mohan Krishna, a Plastic Surgeon. Later he got nerve grafting done at Malahar hospital, Chennai. If really, the complainant was of the opinion that due to removal of cyst she had developed facial palsy she could have examined Dr. Venkata Swamy of Malar Hospital, Chennai who conducted grafting of facial nerve. He could have been the best person who could have stated that due to negligent operation conducted by the appellant she had developed facial palsy. When two experts by referring to medical authorities opined that facial palsy was not the result of removal of cyst by RW1, burden lies on the complainant to examine the experts in the field to show that facial palsy was the result of operation conducted by the appellant .
15) In this regard recently the Supreme Court in Martin F.D’ Souza Vs. Mohd. Ishfaq reported in I (2009) CPJ 32 (SC) considered various aspects of medical negligence. We excerpt some of the passages from the said judgement for benefit.
35) Before dealing with these principles two things have to be kept in mind :
(1) Judges are not experts in medical science, rather they are lay men. This itself often makes it somewhat difficult for them to decide cases relating to medical negligence. Moreover, Judges have usually to rely on testimonies of other doctors which may not necessarily in all cases be objective, since like in all professions and services, doctors too sometimes have a tendency to support their own colleagues who are charged with medical negligence. The testimony may also be difficult to understand, particularly in complicated medical matters, for a layman in medical matters like a Judge; and (2) A balance has to be struck in such cases. While doctors who cause death or agony due to medical negligence should certainly be penalized, it must also be remembered that like all professionals doctors too can make errors of judgment but if they are punished for this no doctor can practice his vocation with equanimity. Indiscriminate proceedings and decisions against doctors are counter productive and serve society no good. They inhibit the free exercise of judgment by a professional in a particular situation.
36) Keeping the above two notions in mind we may discuss the broad
general principles relating to medical negligence.
General Principles Relating to Medical Negligence
37). As already stated above, the broad general principles of medical negligence have been laid down in the Supreme Court Judgment in Jacob Mathew vs. State of Punjab and Anr. However, these principles can be indicated briefly here :
38) The basic principle relating to medical negligence is known as the BOLAM Rule. This was laid down in the judgment of Justice McNair in Bolam vs. Friern Hospital Management Committee (1957) 1 WLR 582 as follows :
“Where you get a situation which involves the use of some
special skill or competence, then the test as to whether there
has been negligence or not is not the test of the man on the
top of a Clapham 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….. It is well-established law that it is sufficient if he exercises the ordinary
skill of an ordinary competent man exercising that particular art.”
Bolam’s test has been approved by the Supreme Court in
Jacob Mathew’s case.
39) In Halsbury’s Laws of England the degree of skill and care required by a medical practitioner is stated as follows :
“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, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he 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, even though a body of adverse opinion also existed among medical men. Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care.”
(emphasis supplied)
41. A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. For instance, he would be liable if he leaves a surgical gauze inside the patient after an operation vide Achutrao Haribhau Khodwa & others vs. State of Maharashtra & others, AIR 1996 SC 2377 or operates on the wrong part of the body, and he would be also criminally liable if he operates on someone for removing an organ for illegitimate trade.
42. There is a tendency to confuse a reasonable person with an error free
person. An error of judgment may or may not be negligent. It depends on the nature of the error.
43. It is not enough to show that there is a body of competent professional opinion which considers that the decision of the accused professional was a wrong decision, provided there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances. As Lord Clyde stated in Hunter vs. Hanley 1955 SLT 213 :
“In the realm of diagnosis and treatment there is ample scope for
genuine difference of opinion and one man clearly is not negligent
merely because his conclusion differs from that of other professional men…. The true test for establishing negligence in
diagnosis or treatment on the part of a doctor is whether he has
been proved to be guilty of such failure as no doctor of ordinary
skill would be guilty of if acting with ordinary care….”
(emphasis supplied)
47. Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse.
53. Judged by this standard, the professional may be held liable for negligence on the ground that he was not possessed of the requisite skill which he professes to have. Thus a doctor who has a qualification in Ayurvedic or Homeopathic medicine will be liable if he prescribes Allopathic treatment which causes some harm vide Poonam Verma vs. Ashwin Patel & Ors. (1996) 4 SCC 332. In Dr. Shiv Kumar Gautam vs. Alima, Revision Petition No.586 of 1999 decided on 10.10.2006, the National Consumer Commission held a homeopath liable for negligence for prescribing allopathic medicines and administering glucose drip and giving injections.
Finally it held “Hence Courts/Consumer Fora should keep the above factors in mind when deciding cases related to medical negligence, and not take a view which would be in fact a disservice to the public. The decision of this Court in Indian Medical Association vs. V.P. Shantha (Supra) should not be understood to mean that doctors should be harassed merely because their treatment was unsuccessful or caused some mishap which was not necessarily due to negligence. In fact in the aforesaid decision it has been observed (vide para 22) :-
“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 man’s control.”……………
The courts and Consumer Fora are not experts in medical science, and must not substitute their own views over that of specialists. It is true that the medical profession has to an extent become commercialized and there are many doctors who depart from their Hippocratic oath for their selfish ends of making money. However, the entire medical fraternity cannot be blamed or branded as lacking in integrity or competence just because of some bad apples.
It must be remembered that sometimes despite their best efforts the treatment of a doctor fails. For instance, sometimes despite the best effort of a surgeon, the patient dies. That does not mean that the doctor or the surgeon must be held to be guilty of medical negligence, unless there is some strong evidence to suggest that he is.
16) We may state that the complainant did not examine any expert in order to prove that there was negligence on the part of appellant in conducting the operation resulting in facial palsy. On the other hand the evidence as well as record would undoubtedly disclose that the facial nerve was never cut as alleged by the complainant which according to her led to facial palsy. Probably she was under the impression that her nerve was cut and that led to facial palsy. The medical authorities and evidence of RWs 2 & 3 clarify that the facial palsy was due to infection which she got due to improper dressing – evident from her own evidence. She did not take care in getting the wound dressed under medical supervision. She got it in her house. Her mother dressed the wound. By the time she came to the appellant there was infection. He noticed it and gave medicines, even referred to RW2 & RW3 who in turn prescribed medicines and got infection contained. They are in one voice confirmed that due to infection she suffered palsy. In view of this we have no hesitation to state that there was no negligence on the part of RW1 in conducting the operation. As observed by the Supreme Court in Martin F.D’ Souza Vs. Mohd. Ishfaq in cases of this nature, we are afraid without any expert evidence, the Dist. Forum cannot arrogate itself as a super surgeon and resolve that the operation performed by the appellant was improper. Such a conclusion was arrived at without expert evidence. The evidence shows that there was no deficiency in service on his part.
17) At the cost of repetition, we may state that RWs 2 & 3 ruled out any deficiency in service or negligence on the part of appellant in performing the surgery. This was supported by the medical literature on the subject. Therefore, we are of the opinion that the complainant could not prove that there was negligence on the part of appellant in performing the operation. Consequently, the order of the Dist. Forum is liable to be set-aside.
18) In the result, the appeal is allowed. The order of the Dist. Forum is set-aside, consequently the complaint is dismissed. However, in the circumstances of the case no costs.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
Dt. 12 . 06. 2009.
