Tamil Nadu
StateCommission
CC/62/2003
S.Suriyanarayanan & another - Complainant(s)
Versus
Prof. D.Rout, Sri Ramachandran Hospital & another - Opp.Party(s)
T.Sai Krishnan
12 Mar 2015
ORDER
IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.
BEFORE: HON’BLE THIRU JUSTICE R. REGUPATHI, PRESIDINT
THIRU.J. JAYARAM, JUDICIAL MEMBER
TMT. P. BAKIYAVATHY, MEMBER
O.P.No.62/2003
DATED THIS THE 12TH DAY OF MARCH 2015.
Date of complaint : 10.07.2003
Date of order : 12.03.2015
1.Mr.S.Suryanarayanan
2.Mrs.Suryanarayanan
Both residing at
Kauselya Complex, Complainants
Draksharama Road,
Yanam 533 464.
Vs
1. Prof.D.Rout,
Professor of Neurosurgery,
Director – Neuro Care Centre,
Sri Ramachandra Hospital, Opposite parties
Porur, Chennai 600 116.
2. Sri Ramachandra Hospital,
Rep by its Chief Executive Director,
Porur, Chennai 600 116.
Counsel for Complainants : M/s.T.Saikrishnan
Counsel for Opposite Parties 1 & 2 : M/s. S. Satish Parasaran
This complaint coming before us for final hearing on 20.11.2014 and on hearing the arguments of both sides and upon perusing the material records, this Commission made the following:
ORDER
THIRU.J.JAYARAM, JUDICIAL MEMBER
Complaint filed under Sec.17 of the Consumer Protection Act, 1986.
1. The case of the complainant is follows :
The complainants are husband and wife. They approached the 1st opposite party
for medical advice for their daughter Seelam Pavani Phani, who was suffering from severe head-ache and vomiting once in two or three months. She had been suffering from this problem since she was 12 years of age and the said problem was becoming very acute and so they took their daughter to the 1st opposite party on being referred by other doctors that he was a leading specialist. They met the 1st opposite party hospital at the 2nd opposite party with their daughter on 17.6.1997. After examining the girl though the 1st opposite party advised to admit the girl in the 2nd opposite party hospital for angiogram test and her problem was diagnosed as Multi planar AVM and the 1st opposite party informed them that it is a minor problem which could be easily cured by a simple surgery. After investigation, the 1st opposite party advised the complainants to go in for immediate surgery to rectify the AVM problem and the 1st opposite party had assured the complainant that the operation was an ordinary one and did not involve any complications and that the patient could be discharged from the hospital within 10 days of the surgery. Accepting the advice of the 1st opposite party, the complainants paid a sum of Rs.50,000/- towards the professional charges of surgery. The operation was conducted by the 1st opposite party in the hospital of the 2nd opposite party on 26.6.1997 and contrary to their expectation the girl acquired dense hemiphasia in the operation theatre itself, apparently due to the negligence in the process adopted by the 1st opposite party in the course of embolisation of feeders in the hemisphere of the brain and she was discharged with severe complications of dense hemiphasia and in the discharge summary it is mentioned that embolisation of feeders into the right hemisphere brain were studded and that led to dense hemiphasia which could be only due to gross negligence on the part of the 1st opposite party in having failed to adopt an apt and accurate procedure in embolisation of feeders and virtually causing permanent ailment severe in nature and now after surgery, the girl who had who only problems of head ache and vomiting was now confined to bed ridden condition due to the sheer negligence on the part of the 1st opposite party in conducting the surgery without taking adequate care and attention and got permanently handicapped to the extent of 75% deformity in the left side upper and lower limbs due to dense hemiphasia wide and ugly operated scar on hair line and speech impairment and drug dependency and lifelong dependence on her parents for social security due to the erroneously conducted operation by the 1st opposite party.
2. The girl was discharged from the hospital on 16.8.1997 and the patient’s wound on the hair line had not healed completely and hence immediately after discharge, the complainants took their daughter to Rajamundry on their way back to their native place, Yanam, since she had developed fever and met Dr.G.V.Rama Rao M.D and he conducted urine culture to confirm the Urinary Track infection as she had been admitted in the hospital of the 2nd opposite party and the girl got fever due to infection of the surgery wound and he advised to go to a Neuro surgeon for proper dressing and maintenance and so they met the Dr.G.Malleswara Rao, M.S. (Neuro) who is a neuro surgeon at Government Hospital, Kakinada and the doctor did the needful to the patient and advised to meet the first opposite party for further care of the patient. It is quite unfortunate that after the surgery, the complainants have been made to run from doctor to doctor for attending to the unhealed wound as a result of the surgery which only shows the poor manner and the unprofessional way in which the operation had been conducted leaving a wound.
3. The complainants rushed back to Chennai along with their daughter to meet the 1st opposite party on 25.10.1997 for treatment of the wound and after dressing the patient was disposed of from the outpatient department with an advice to go for dressing the wound daily and to attend physiotherapy regularly. But the wound as a result of the improperly conducted surgery had taken a long time of six months to heal. There was no physiotherapy facility at their native place of Yanam and so they took their daughter to Kakinada by taxi to undergo physiotherapy, electrotherapy and wax therapy in a private physiotherapy unit, after the working hours of the 1st complainant. Everyday they had to travel by taxi about 60 kms to go to Kakinada and to return home and this process of physiotherapy went on for more than one year i.e., till the 1st complainant got transferred to Karaikal and the patient attended the occupational/physiotherapy at Government General Hospital and the complainants had incurred huge expenditure by way of travelling expenses to take their child to physiotherapy units at Kakinada and Karaikal.
4. Due to the affliction of hemiphasia, their daughter’s left side limbs were not functioning at all and as such she was unable to attend to her daily routines on her own, necessitating to employ a female attendant to look after her needs at a salary of Rs.2000/- per month and the girl of tender age was subjected to multifarious complications due to the negligence of the 1st opposite party.
5. The doctors, who attended the surgery did not reveal anything about the acquired complications as a result of the operation. On the other hand the complainants were informed that the patient acquired only mild complications which were common in every brain surgery and that the said complications would only be temporary and that the patient would become normal within a very short span of time.
6. At Karaikal Government Hospital, immediately the medical Superintendent took C.T.Scan of brain and confirmed that there was a problem in brain and he was advised to go to the 1st opposite party, where she had undergone the Neurosurgery for AVM on 26.06.1997 and so they again went to the 2nd opposite party hospital on 9.10.2000 and consulted the 1st opposite party about the recurrence of the same problem with same symptoms for which she had undergone the surgery on 26.06.1997. On the advice of the 1st opposite party the girl was admitted in the 2nd opposite party hospital on 16.2.2001 for Angiogram test and after the test the 1st opposite party confirmed the existence of the same problem of AVM and the 1st opposite party sought for willingness to conduct brain operation for second time and the complainants who were already depressed beyond description, did not accept the 2nd surgery. Further the girl was not in a fit stage to undergo the second surgery already having been physiologically upset due to the complications she acquired as a result of the first operation.
7. It is to be noted that from the very fact that the same problem had occurred again, it is clear that the operation conducted by the 1st opposite party on 26.6.1997 was a failure and in the discharge summary issued on 20.2.2001 the 1st opposite party has specifically stated it is needless to say that it implies that the surgery done on 26.6.1997 was a failure and it is to be noted that, at the time of undertaking surgery on 26.6.1997 the first opposite party had not informed them that there is a possibility of recurrence of the same AVM after the operation. The 1st opposite party stated that there was no need to worry about it and that there were no chances of the same problem occurring again and so as a matter of fact as the same problem occurred again it categorically goes to show that the 1st opposite party had not taken proper and adequate care and attention during the operation on 26.6.1997 which resulted in various complications to the patient and further nullified the very purpose for which the operation was undergone by the patient. Since the complainants refused to the second operation as suggested by the 1st opposite party, he advised them to take their daughter to Christian Medical College Hospital, Vellore and accordingly the complainants took her to the Christian Medical College Hospital, Vellore on 6.3.2001 and consulted the Neurosurgeon by Dr.Rajshekhar, M.S., and on his advice the patient was admitted for Stereotectic Radiosurgery on 3.5.2001 and the hospital collected a sum of Rs.58,135/- from the complainants towards their charges and the patient was discharged from the hospital on 5.5.2001. The discharge summary issued by the CMC, Hospital, Vellore stated that the patient who had undergone embolization of feeders followed by excision of a left frontal multiplanar Arterio Venous Malformation in 1997 elsewhere was admitted in CMC, Hospital, Vellore with residual Areterio Venous Malformation and the patient had also developed left hemiparesis and aphasia following the embolisation in 1997. After the discharge summary was issued on 20.2.2001 by the 1st opposite party and on taking their daughter to the CMC, Hospital, Vellore it could be noted that the 1st opposite party had conducted the surgery on 26.6.1997 in the most negligent manner and that embolization had been done without any care or caution resulting in dense hemiphasia and aphasia and they also reliably understood that the 1st opposite party in a fit of confusion during embolization as a result of the complication that arose out of his sheer negligence conducted the excision in the most improper manner and as such the AVM was not removed completely and thus the patient had to suffer the same problem apart from having been affected by severe impairments.
8. The true facts and the condition of the patient had not been spelt out by the 1st opposite party clearly in the first discharge summary and the opposite parties deliberately suppressed the actual condition of the patient which were only revealed in the second discharge summary of the year 2001 and due to sheer negligence on the part of the 1st opposite party, their daughter has been reduced to a state of vegetation without any progress in her state of health and they have been put to untold misery, hardship, agony and pain.
9. Due to the negligence in the treatment their young and upcoming daughter was destined to sustain permanent physical deformity and disability to remain throughout her life time and she has been put to eternal suffering due to complication acquired due to the negligent surgery conducted by the 1st opposite party she had discontinue her B.Sc., in the II year due to multifarious complications that she acquired post operatedly. The 1st opposite party had also wrongly prescribed the tablet Gardinos given only for patients with fits so as to cover up his negligence and to divert the attention of the patient and her parents from the reality. Due to the influence of said drug Gardinos their daughter became drowsy and dull and as the brain got unduly disturbed and she lost her power of memory, interest and initiative in doing any work and her speech was impaired and she lost the communication skill and half of her body functioning became defunct. She also acquired peculiar gait of foot while walking and was devoid of any facial expressions. The cosmetic look of the face was lost as she permanently lost her huge curly hair on her forehead along with the hair line about 5 cm x 20 cm area due to infected operated wound and she has lost her charming personality and she was able to survive only as long as they are alive.
10. She was not only being deprived of her life but also social security and her life after the complainants’ life time looms large. She has been reduced to a stage in which her existence without dependence on others has been wiped out due to the complications by which she has been affected of hemiphasia and aphasia as a result of the sheer negligence in conducting the operation by the 1st opposite party. Without constant medical supervision and maintenance her very existence and survival has become doubtful and she requires regular medical supervision and maintenance, engagement of an attendant to look after her, transportation to the super speciality hospitals for regular check-up and for laboratory tests and investigations etc and her marriage is at stake since nobody would come forward to marry her in the present state. They have spent huge amount of money in the process of treatment to her daughter.
11. Hence the complaint praying for direction to the opposite parties to pay a total sum of Rs.30,00,000/- towards compensation for negligence and deficiency of service on the part of the opposite parties and to pay costs.
12. The opposite parties filed common version contending as follows:
The patient Seelam Pavani Phani, daughter of the complainants, a 19 years old female, at the time of admission was diagnosed with having a complex and challenging multiplanar Arterio Venous Malformation (AVM) affecting the scalp, skull, bone, dura and brain (left frontal lobe). The patient had been suffering from the problem of AVM right from her childhood. At the time of admission to the hospital, the condition of the patient was acute with headache and vomiting which has been increasing in severity for the last seven years. After the initial examination, the patient was advised to undergo a test and accordingly she underwent a 4 vessel cerebral angiogram by Dr.K.Murali on 23.6.1997. The said test confirmed that the patient had a complex and challenging problem of multiplanar Arterio Venous Malformation (AVM). AVMs are abnormal cluster of blood vessels, which usually involve the brain. In so far as the patient in this case was concerned, the involvement of all the structures, namely, the brain, skull bone and scalp made it a complex multiplanar AVM with the largest component being present in the brain (left frontal lobe).
13. The disease of the patient was serious in nature and patients with such conditions can suffer serious consequences, which could commence with bleeding and sometimes even culminate in fatal squeal in the brain, which is more common in younger patients. Furthermore, seizures (fits), headaches, focal neurological deficits, raised intracranial pressure and dementia and various other neurological disorders can also occur. The complexity and severity of the problem as also the modalities of management, including the partial embolisation followed by surgery and the risks involved were explained in detail to the complainants. In such patients, a procedure called embolisation is carried out prior to surgery to reduce the blood loss at the time of surgery. In fact, no professional can ever state that the procedure involved is a simple one when the case is so complex in nature and the doctors explained in detail the risks associated with the condition of the patient as well as the management of such ailment. It is pertinent to note that in such conditions that occurred in the patient, published studies have shown that the risks of bleeding inside the brain is about 4 per cent per year and the mortality from the first bleed is as high as 10 per cent and morbidity is as high as 20-30 per cent. The incidence of rebleeding inside the brain is higher at 6 percent in the first 6 months with mortality of 13 per cent after the second bleed and 20 per cent following each subsequent bleed. The bleeding rate is increased by 2 ½ times by 25 years of age and the bleeding is 3 times greater in children than adults and the rebleeding is 7 times more in children than adults. The said facts borne out from medical literature itself would go to show the complexity of the condition and the seriousness of the situation under which the patient was brought for treatment. The opposite parties are filing the said literature as Annexure I.
14. All the risks and possible complications and it was only thereafter that the consent was obtained in order to proceed with embolisation followed by surgery. Since the multiplanar AVM is a difficult and complex problem for total management, the pros and cons were discussed in detail with the complainants. The treatment plan was carried out 4 days after angiography. At no stage was it ever mentioned that the patient’s ailment was a minor problem. The complainants herein fully understood the same and only thereafter gave their informed consent for the treatment.
15. Thereafter, all precautions and care were taken in the pre-operative, operative and post operative stage. A competent and highly qualified Interventional Neuro Radiologist, Dr.K.Murali, carried out the embolisation of external carotid branches on both sides prior to surgery under deep sedation. This procedure is carried out to reduce the blood loss during surgery. The patient underwent craniotomy soon after embolisation to take advantage of the same and microsurgical excision of left frontal AVM was carried out on 26.6.1997. In addition to the informed consent on the printed consent form, additional handwritten informed consent was taken routinely practised after explaining all possible complications involved in such complex procedures as embolisation and surgery of the Multiplanar AVM.
16. Subsequent to the procedure, the patient was found to have left sided weakness and a CT Scan done on 27.6.1997 revealed embolic material in Right hemisphere of the brain, which was considered responsible for the left sided weakness. This is one of the known complications in such procedures and the data pertaining to this show that it is well within the internationally occurring rate of such complications and by no stretch of imagination can it be said to have occurred due to negligence, lack of expertise or inadequate care of the opposite parties. In fact, even Diagnostic Angiography being a relatively simple procedure itself carries a risk of major complication of 0.5% even in expert hands. While so, embolisation of cerebral blood vessels has a relatively higher risk at 5% to 15%. In fact, sometimes there can be communication between external and Internal carotid branches, which may not be seen during routine angiography. Some of these communications may open up during the procedure itself, leading to migration of embolic material from external carotid to Internal carotid territory which supply the brain. In respect of some reported cases the embolic material flowing to normal brain blood vessels through such anastomotic channels, which are silent and not visualized on routine angiography, has led to unpredictable death in expert hands of internal repute (Annexure-II).
17. There had been a delayed wound healing as expected due to embolisation and occlusion of bilateral external carotid branches, which supply blood to the scalp normally. The patient also had urinary tract infection during this period, which is more common in females and was appropriately and successfully treated. The patient was discharged from the hospital when the urine culture was negative and when she was afebrile. It was the complainants who insisted in continuing the dressing of the superficial scalp wound and physiotherapy at the local hospital. Her weakness had then shown significant improvement, by this time. The incidence of complication arising from embolisation is between 5 – 15% of varying severity including death and for the total management of difficult high flow AVM, a pre-operative embolo-therapy was in fact first started in India under the leadership of the 1st opposite party in 1980 and it was a pioneering effort in this area.
18. The patient had developed left sided weakness attributed to acute cerebral ischemia of right side of brain. The improvement in cerebral ischemia occurs due to spontaneous recanalisation of occluded blood vessels, collateral blood supply along with cerebral protective measures and physiotherapy. The patient in this case improved subsequently and had only very mild residual weaknesses of left side, which would show that her condition is not as stated in the complaint and in fact had substantially improved. As mentioned in the second discharge summary, she had mild left sided residual hemiparesia with normal speech. This fact is also substantiated from the discharge summary of the CMC Hospital, Vellore. Tab.Gardenal was prescribed to avoid fits as the patient was found to be allergic to Tab.Eptain. This is a routine practice for all brain surgeries and it is not given to sedate the patient. The protocol for management of this complex multiplanar AVM was carried out under the leadership of the 1st opposite party who has the largest experience of treating this disease in this country and is one of the very few leading authorities in the international field.
19. When the patient came for second admission, follow up angiography was carried out on 17.2.2001 with informed consent of the complainants and the angiography revealed a small residual AVM, which is commonly found in 4-8% of cases even in simple cerebral AVMs. The present case being a highly complex AVM, the eventually of residual AVM is even higher. The pros and cons of treating this residual AVM were discussed and it was decided to refer the patient for stereotectic radio surgery for the residual small AVM with recruitment of basal vessels. Since it was found that the CMCH, Vellore had the necessary equipment for the radio surgery, the patient was referred to CMCH, Vellore and the complainants were advised to go there. There has been absolutely no deficiency of service or negligence in the treatment given to the patient and in fact the treatment has been wholly successful, considering the complexity of the case. In so far as the residual AVM is concerned, the nidus of the AVM can be diffuse or compact. In this case, the patient had a multiplanar AVM, which was diffuse in nature and supplied by multiple vessels from both within the brain and outside vessels. The extra-cranial vessels were selectively embolised at the time of carrying out the embolisation. The patient had multiple intra-cranial feeders (anterior, middle cerebral and basal dural perforators and venous drainage was to superior sagittal sinus). In such conditions, it is in fact extremely difficult to differentiate between the normal vessels supplying the important structures of the brain from an abnormal blood vessel supplying the AVM nidus particularly at the periphery of nidus even under a microscope. The procedure itself is carried out under the microscope but despite the same, the incidence of residual AVMs varies from 4-8% even when the best care is taken. In fact, in AVMs, which are diffuse in nature such as present one, the incidence of residual AVM is higher.
20. The complainants’ consent was not obtained before the embolisation and surgery and that they were not explained about the possible complication is not true. There has been no negligence or lack of professionalism on the part of the hospital authorities, or the doctors in respect of the surgery including the treatment given for urinary tract infection of the patient and the opposite parties are neither responsible nor liable for the same and incorrect to state that the wound took a longer time to heal because of negligence or lack of care on the part of the doctors, and that the opposite parties are liable to compensate the complainants for alleged expenses as claimed by the complainants and the residual AVM occurred due to the negligence on the part of the doctors.
21. The doctors have never assured the complainants that there would not be any possibility of complications following such major procedures of AVM, when in fact such an eventuality is clearly recognized in medicine.
22. The second opposite party is one of the best known hospitals having the best of facilities both in terms of the equipment and manpower. The 1st opposite party is one of the world’s renowned pioneers in the field of neurosurgery and has been credited with various firsts. He is a known authority in the field of neurosurgery, Microneuro surgery, Microvascular surgery and Biomedical Research and is currently the Professor and HOD, Neurosurgery Department, Sri Ramachandra Medical College and Research Institute (Deemed University), and Director of Neuro Care Centre of Sri Ramachandra Hospital, Chennai. It is pertinent to state that, he has special interest in vascular lesions and is credited with the largest surgical series of more than 1200 intra cranial aneurysms and 400 cerebral AVMs with excellent results in India. In addition, he has contributed chapters to the text book of Neurosurgery on Cerebral AVM and subarachneid hemorrhage. Apart from the same, he has immensely contributed to the field of Neurosurgery by participating in the major seminars on Vascular lesions of the brain at World Federation of Neurosurgical Societies and other international Conferences from 1987 till 1997 and he has been the Founder President elect (2000) of The Indian Society of Cerebro Vascular Surgery. He is recognized as a distinguished scientific, academic and administrative personality in the medical field and has served as a visiting Professor of Neurosurgery, Johns Hopkins Medical Institutions and Barro Neurological Institute both in the USA, University of Graz (Austria), Fujitha Health University (Japan) etc and has a rare distinction of being a member of the prestigious ad-hoc committee of the World Federation of Neurosurgical Societies on “Standardization of Terminology and Surgical Results” from Asia for 8 years. The brain AVMs operated by him since 1980 is the largest personal series in the country and considered to be among the top few largest personal series in the world. It is pertinent to state that a person of such outstanding reputation and blemishless record has conducted the present procedure also with the background of his immense expertise using the highest degree of care. The condition that the patient suffered from was temporary in nature and even the mild residual left weakness is a known complication of such complex procedures. It is therefore, rather unfortunate that the complainants ought to make out a case as if there has been gross negligence on the part of the doctors.
23. The fact that the parents of the patient themselves were aware of the tremendous efforts taken by the doctors and staff would go to show that the present complaint is an afterthought and has been filed with an ulterior motive. The facts of the case clearly demonstrate that the opposite parties have taken the highest degree of care. It is a fact that Seelam Pavani Phani, daughter of the complainants was brought to the 2nd opposite party hospital and the condition of the patient at the time of admission, her past history and the advice given and the test conducted after the initial examination of the patient were already set out in para-4. The problem of multi planar AVM, which the complainants were told to be a minor problem which could be easily cured by a simple surgery is denied and the disease of the patient was so serious in nature and the patients with such conditions can suffer serious consequences, which could commence with bleeding and sometimes even culminate in fatal squeal in the brain, which is more common in younger patients. Furthermore, seizures (fits), headaches, focal neurological deficits, raised intracranial pressure and dementia and various other neurological disorder can also occur in such cases. Therefore, serious condition of the patient and the complexity and the risk involved in the total management were duly explained in detail to the complainants. Further, when the medical literature filed along with version, clearly indicates the complexity of the condition and the seriousness of the situation under which the patient was brought for treatment, by any stretch of imagination, no prudent doctor will say that the problem which the patient was suffering with is a minor problem and it can be easily cured by a simple surgery. The opposite parties have clearly set out, in detail of operation and the nature of the complication, which could clearly go to show that there was no negligence on the part of the opposite parties and the complainants were promised by the 1st opposite party that the treatment would be a simple procedure. In fact, it was only after being explained in detail about the complexity and the seriousness of the problem of the patient and the high risk involved in the surgery that the complainants have signed the printed consent form for performing the surgery of the patient and in addition to the printed consent form, an additional handwritten informed consent was also taken from the complainants, as a routine practice, after being explained of all possible complications involved in such complex procedures as embolisation and surgery of the multiplanar AVM. The embolisation of feeders into the right hemisphere of the brain that were studded which led to dense hemiplegia could have been due to gross negligence on the part of the 1st opposite party in having failed to adopt an apt and accurate procedure in embolisation of feeders is denied.
24. The post operative condition of the patient and the prognosis have been elaborately set out by the opposite parties and that there is no negligence on the part of the opposite parties in conducting the surgery on the patient. On the other hand, the steps taken by the opposite parties in performing the surgery would amply demonstrate that they have taken utmost care and diligence while giving the treatment to the patient.
25. The claims of the complainants that the operated wound of the patient on the hair line had not healed completely and hence the complainants took the patient to Rajamundry, on their way back to their native place, since the patient developed fever, that they met Dr.G.R.Rama Rao, M.D. for advice, that the said doctor conducted urine culture once again to confirm the urinary track infection and thereafter concluded that the patient got fever due to infection of the surgery wound, that the said doctor advised the patient to go to a Neuro surgeon for proper dressing and maintenance, that the complainants took the patient to Dr.G.Malleswara Rao, Kakinada for necessary treatment, dressing and advice that the said doctor did the needful to the patient and advised to meet the 1st opposite party for further care of the patient are all not within the knowledge of the opposite parties.
26. The wound as a result of the improperly conducted surgery had taken a long time of six months to hale is denied and it is due to embolisation and occlusion of bilateral external carotid branches, which supply blood to the scalp normally and it was only the complainants who insisted in continuing the dressing of the superficial scalp wound and physiotherapy at the local hospital. The opposite parties has taken all possible care while giving treatment and conducting surgery. The opposite parties have already explained the circumstances under which the patient was brought to the hospital, the condition of the patient, complications in giving the treatment and the risk involved in the surgery. It was properly explained to the complainant and only after having understood the nature of their daughter and the risk involved in the surgery, the complainants, with free will, signed the printed consent form along with additional handwritten consent and it was never informed by the opposite parties to the complainants that the complications would only be temporary and that the patient would become normal within a very short span of time.
27. The condition of the patient during the year 2000 commencing from 20.9.2000, the treatment that was alleged to have been given in the Government Hospital,Karaikal, tests conducted therein are not within the knowledge of the opposite parties and the opposite party sought for the complainant’ willingness to conduct brain operation for the second time is incorrect. The opposite parties have already set out in detail the correct position of the patient. The allegations that the opposite parties had not informed the complainants about the possibility of residual AVM after the surgery, that the complainants had specifically asked the 1st opposite party about this for which the 1st opposite party has stated that there are no chances of the same problem occurring again are denied. Since the complainants refused for the second operation, the opposite party advised them to take their daughter to CMC hospital, Vellore is denied. The 1st opposite party conducted the surgery on 26.6.1997 in the most negligent manner without any care or caution and that the 1st opposite party has conducted the excision in the most improper manner and that the AVM was not removed and the patient had to suffer the same problem apart from having been affected by severe impairments are all denied. Hence no negligence can be attributed to the opposite parties and the opposite parties are not liable to pay any compensation as claimed by the complainants and the complainants to only raise a fanciful claim against the opposite parties who are leading medical professionals and are known for their best professionalism and prays to dismiss the complaint with costs.
28. The complainants have filed proof affidavit along with 22 documents, marked as Ex.A1 to A22 on the side of the complainants. The opposite parties have filed their Proof affidavits along with 15 documents, marked as Ex.B1 to B15 on the opposite parties side.
29. The points for consideration are:
1. Whether there is any negligence or deficiency in service on the part of the opposite parties as alleged in the complaint ?
2. Whether the complainants are entitled to claim compensation from the opposite parties?
3. To what relief the complainants are entitled ?
30. POINT NO.1 & 2: This complaint has been filed by the complainants claiming compensation from the opposite parties on account of the negligence and deficiency in service on the part of the opposite parties in treating the complainants’ daughter and conducting the surgery, who was suffering from head ache and vomiting once in 2 or 3 months for quite some time in the past.
31. The complainants’ main allegation against the opposite parties is that and they did not bestow proper care and attention at the time of Embolisation of Feeders in the hemisphere of the brain and the 1st opposite party has not exercised the professional skill at the time of conducting surgery and the 1st opposite party did not observe the degree of care and standard expected of such professionally qualified doctors.
32. But, there is no evidence or record to substantiate the negligence on the part of the opposite parties in performing the surgery and treating the patient. It is pertinent to note that there is no medical expert’s evidence or opinion placed before us to establish the contention of medical negligence on the part of the opposite parties.
33. The complainants have relied on the doctrine of Res-ipsa-Loquitor citing the decision of the Hon’ble Supreme Court in the case of V.Kishan Rao –vs- Nikhil Super Speciality Hospital and another – III (2010) CPJ -1 (SC), in which it is laid down as follows :
“In the opinion of this court, before forming an opinion that expert evidence is necessary, the Fora under the Act must come to a conclusion that the case is complicated enough to require opinion of an expert or that facts of the case are such that it cannot be resolved by members of the Fora without the assistance of expert opinion. This court makes it clear that in these matters, no mechanical approach can be followed by these fora. Each case has to be judged on its own facts. In a case where negligence is evident, the principle of Res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res-) proves itself –In such a case, it is for respondent to prove that he has taken care and done his duty to repel the charge of negligence.”
34. “Res ipsa loquitur” does not at all operate in this case and there is absolutely no scope and no merit for invoking Res-ipsa Loquitor and the contention of the complainant in this regard is misconceived and misinterpreted and is untenable.
35. The correctness of the medical treatment given by the opposite parties and the Neuro surgery conducted by the 1st opposite party are quite complicated matters which cannot be casually questioned and the negligence cannot be attributed to the opposite parties without any basis and without adducing proper evidence to establish the negligence and without medical experts’ evidence or experts’ opinion.
36. One specific instance of alleged negligence submitted by the complainants is that Tab.Gardenos (Gardenal ?) is usually given only for the treatment of Fits; but it is unnecessarily given to the patient, so as to cover up the negligence and to divert the attention of the parents. The 1st opposite party has answered the point in his version stating that the Tab.Gardenal was prescribed to avoid fits as the patient was found to be allergic to Tab.Eptoin and that this is a routine practice for all brain surgeries and it is not given to sedate the patient. The above allegation made by the complainants is without any substance and is unsustainable.
37. The opposite parties have stated that as regards the incidence of residual AVM, the procedure is carried out under the Microscope, but despite the same, the incidence of residual AVM varies from 4-8% even when best care is taken and even in simple cerebral AVMs, and in fact in AVMS which are diffuse, in nature such as the present one, the incidence of residual AVM is higher and the present case being a highly complex AVM, the eventuality of residual AVM is even higher.
38. Admittedly it is not the case of the complainants that the 1st opposite party is not qualified or competent to handle the case and there is no allegation or averment that the 1st opposite party is not qualified or without sufficient skill. It is significant to note that the 1st opposite party is a very eminent and highly competent and outstanding authority in Neuro surgery, having excellent medical / surgical back ground and having rich experience in Neuro surgery, and possessing medical qualifications of highest order and on considering the available materials in entirety we find no fault in treating the patient and conducting the surgery.
39. The Hon’ble National Commission has observed as follows in the case of Kamla Bai Pandey –vs- Dr.P.C.Dwivedi – I (2009) CPJ 263 (NC)
“As per law laid down by the Hon’ble Supreme Court in the case of Jacob Mathew –vs- State of Punjab and another – (2005) 6 SCC 1
“It is for the complainant to prove as to what the doctor did which he should not have done or what he should have done and he did not do.”
40. The complainants have not specially stated what exactly is the negligence or deficiency in service on the part of the opposite parties and what omission and what commission on the part of the opposite parties amount to negligence and deficiency in service. There are no materials on record to establish that there is negligence or deficiency in service on the part of the opposite parties in treating the patient and in performing the surgery. We have to note that the mere allegations leveled against the opposite parties will not go to establish negligence or deficiency in service on the part of the opposite parties. The medical negligence must be established and proved by adducing proper evidence and negligence cannot be presumed. Therefore in the absence of expert’s evidence or expert’s opinion and other required materials we have to hold that there is no deficiency of service on the part of the opposite parties in treating the girl and conducting the surgery.
41. The Hon’ble National Commission in the case of V.K.Sharma –vs- Bharti Eye Foundation and another – II (2010) CPJ 94 (NC) has held
“Just because the complainant not responded favourably to treatment, no negligence can be attributed to the opposite party.”
42. The Hon’ble National Commission has further held as follows in the case of Prabha Ojha –vs- Neelmani – I (2010) CPJ 62 (NC)
“It is by now well settled that onus of proof is on the party who alleges medical negligence. This has further been elaborated in subsequent judgments that mere statements of parties is not enough, allegation of negligence has to be proved with the help of expert medical opinion. Admittedly, in the present case the petitioner has not brought on record any expert evidence to show as to what the doctor did was not to be done as per accepted medical practice or what he should have done as per accepted medical practice, which he failed to do.”
43. The Hon’ble Supreme Court has laid down as follows in the case of Nizam Institute of Medical Science –vs- Prasanth S.Dhananka and others - (2009) 6 SCC INDLAW (SC) (1047)
“In a case involving medical negligence once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or doctor concerned, the onus then shifts on to the hospital or to the attending doctors and it is for the hospital to satisfy the court that there was no lack of care or negligence.”
44. In the present case the initial burden has not been discharged by the complainants and no case of medical negligence has been made out against the opposite parties.
45. It is significant to note that, the complainants have raised a crucial point that their consent or the patient’s consent was not obtained by the hospital before the surgery and that nobody in the hospital informed them about the possibilities of further complications or recurrence of the same problem even after the surgery and had they been informed about the serious consequences and the potential risk involved in the surgery they would not have agreed for such a serious and risky surgery devastating her life and instead they could have managed with the problems of occasional head ache and vomiting, without undergoing surgery.
46. We have to note that, Ex.B10 dated 17.2.2001, is the Printed Consent Form relating to the Cerebral Angiogram taken on 17.2.2001 and not for the surgery conducted on 26.6.1997.
47. It is quiet relevant to note that, the so called written consent / informed consent said to have been obtained by the opposite parties from the complainants and their daughter is not placed before us and no consent form or any other record is produced before the commission to prove that the consent was indeed obtained from the complainants and their daughter. Therefore, we have to draw adverse inference that no consent was really obtained either from the complainants or from their daughter before the commencement of surgery.
48. The Hon’ble Supreme Court has held in the case of Nizam’s Institute of Medical Sciences –vs- Prasanth S.Dhananka and others – (2009) 6 SCC I that the non-production of the written consent / informed consent leads to adverse inference that no consent / informed consent was obtained from the parties. Therefore, we hold that in the instant case before us no written consent / informed consent was obtained either from the complainants or from their daughter and also that nobody in the hospital informed them about the treatment and the surgery and the consequences of the surgery and that, had it been explained to them they would not have agreed for such a serious and risky surgery.
49. For the aforesaid reasons we conclude that the 2nd opposite party Hospital alone is responsible / liable for this serious procedural irregularity which is a grave omission and a serious deficiency in service costing a lot for the complainants and their daughter and they have been denied the opportunity of deciding whether to agree for the surgery or not. Therefore we hold that not getting the written consent / informed consent from the complainants or the patient and failure to explain the nature and the consequences of the surgery and the subsequent treatment, before conducting the surgery amount to gross negligence and deficiency in service on the part of the 2nd opposite party hospital.
50. Therefore, we hold that there is absolutely no negligence or any fault or any deficiency of service on the part of the 1st opposite party and therefore the complaint against the 1st opposite party is liable to be dismissed.
51. POINT NO.3 : We have to note that the complainants have claimed total compensation of Rs.30,00,000/- and costs. Having regard to the facts and circumstances of the case and considering the serious consequences of the surgery and sufferings undergone by the patient and also her parents / complainants and all other relevant factors, we feel that award of Rs.10,00,000/- would be the just and reasonable compensation and the point is answered accordingly.
52. In the result, the complaint is dismissed as against the 1st opposite party and the complaint is allowed as against the 2nd opposite party, directing the 2nd opposite party to pay a sum of Rs.10,00,000/- (Ten lakhs only ) to the complainants as total compensation and to pay costs of Rs.10,000/- (Rupees Ten Thousand only).
Time for compliance : Two months from the date of receipt of copy of this order and in case of default the amount of Rs.10,00,000/- shall carry interest at the rate of 9% per annum from the date of default till compliance.
P.BAKIYAVATHI J.JAYARAM R.REGUPATHI
MEMBER (J) MEMBER PRESIDENT
LIST OF DOCUMENTS FILED BY THE COMPLAINANTS :
Sl.No | Date | Descriptions |
Ex.A1 | 22.12.1995 | Copy of letter of Dr.G.M.Rama Rao |
Ex.A2 | 22.12.1995 | Copy of CT Scan report |
Ex.A3 | 13.06.1996 | Copy of Certificate issued by JIPMER |
Ex.A4 |
| Copy of letter of the Second opposite party |
Ex.A5 | 31.05.1997 | Copy of letter of the 1st opposite party |
Ex.A6 | 17.06.1997 | Copy of Advice of the 1st opposite party |
Ex.A7 | 18.06.1997 | Copy of Admission form of the 2nd opposite party |
Ex.A8 | 10.08.1997 | Copy of Bill summary issued by the 2nd opposite party |
Ex.A9 | 16.11.1997 | Copy of Receipt issued by the 2nd opposite party |
Ex.A10 |
| Copy of Discharge summary issued by the 2nd opposite party |
Ex.A11 |
| Copy of Lab report |
Ex.A12 | 21.10.1997 | Copy of Prescription given Dr.G.Malleswara Rao |
Ex.A13 | 25.12.1997 | Copy of Notes made by the 1st opposite party |
Ex.A14 |
| Copy of Notes made by the 1st opposite party |
Ex.A15 | 09.10.2000 | Copy of advice of the 1st opposite party |
Ex.A16 | 10.03.2001 | Copy of Certificate of payment issued by the 2nd opposite party |
Ex.A17 | 22.02.2001 | Copy of Discharge Summary |
Ex.A18 | 09.05.2001 | Copy of Inpatient Bill issued by the CMC Hospital |
Ex.A19 | 04.05.2001 | Copy of Discharge Summary issued by the CMC Hospital |
Ex.A20 | 22.04.2001 | Copy of Disability Certificate issued by the General Hospital |
Ex.A21 | 06.08.2002 | Copy of Legal Notice issued by the complainant |
Ex.A22 | 28.09.2002 | Copy of Reply of the opposite parties |
LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTIES :
Sl.No. | Date | Descriptions |
Ex.B1 |
| Copy of Medical Literature form Text Book of Nero Surgery |
Ex.B2 |
| Copy of Medical Literature from Diagnostic Radiology |
Ex.B3 |
| Copy of Medical Literature from Interventional Neuroradiology |
Ex.B4 |
| Copy of Medical Literature from Surgical Neuroangiography |
Ex.B5 | 17.02.2001 | Copy of procedure intimation note (Cath Lab) |
Ex.B6 | 16.02.2001 | Copy of Admission form |
Ex.B7 | 16.02.2001 | Copy of Admission Record |
Ex.B8 | 20.02.2001 | Copy of Discharge Summary |
Ex.B9 | 16.02.2001 | Copy of Investigation Chart |
Ex.B10 | 17.02.2001 | Copy of Informed Consent Form for surgical operation |
Ex.B11 |
| Copy of Doctors Orders |
Ex.B12 |
| Copy of Drug Chart |
Ex.B13 |
| Copy of Intake and output chart |
Ex.B14 |
| Copy of Graphic and Vital Sign Chart |
Ex.B15 |
| Copy of Verification |
P.BAKIYAVATHI J.JAYARAM R.REGUPATHI
MEMBER (J) MEMBER PRESIDENT
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