DR. S. M. KANTIKAR, PRESIDING MEMBER

It is the need of hour to start a national cochlear implants registry to monitor   Cochlear implant cases and to study clinical outcomes.  Also revamp the guidelines to scale up cochlear implants procedure in a holistic way and to ensure post-surgery follow-up and functioning of the implant, The Central and the State governments need to curtail indiscriminate use of cochlear implants.   

1.       This Revision Petition was filed against the order dated 29.4.2008 passed by the order of the Karnataka State Consumer Redressal Commission, Bangalore, in Appeal No.1786/2007, whereby the appeal filed by the respondent was partly allowed and reduced   the compensation to Rs. 2,10,000/-. The negligence of the opposite party was upheld.

2.       The issue relates to failure of cochlear implant. 

3.       The Complainant is a Lower Division Clerk in the Naval based at Kochi of Kerala State.  The Complainant was deaf from his childhood and at the age of 8 years undergone left ear surgery.  It was alleged that at the age of 15 years, on 23.09.2002 he approached OP-2 at Kasturba Hospital, Manipal (OP-1) for cochlear implantation surgery. It was alleged that based on earlier report (four years back) issued by Dr. Mohan Kameswaran, of Madras, OP-2 without doing any pre-operative tests, on 25.01.2003 performed the Cochlear implantation (Clarion platinum series Sl.No.62464) in the right ear.  After the surgery for short period (3 months) his hearing was improved to some extent.  Thereafter, he developed ear discharge and right facial palsy.  Gradually, he developed hearing loss in Rt.ear and later on the implant was removed.

4.    Being aggrieved , the Complainant filed the Complaint against OPs 1 & 2 alleging deficiency in service by OP-2. The insurance company (OP-3) was subsequently added as a party to the Complaint. The Complainant claimed total amount of Rs. 9,61,536/- under various heads.

5.       The District Forum allowed the Complaint and passed the following Order:

“The complaint is allowed.  The Opposite Party No.1 to 3 are directed jointly and severally to pay to the complainant in all a total sum of Rs.9,61,536/- as prayed in the complaint plus Rs.10,000/- as cost of the proceedings.  The Opposite Parties No.1 to 3 shall pay the aforesaid amount within one month from the date of receipt of this order.”

6.       The Opposite Party No.1 appealed before the State Commission.  It was partly allowed. The order of the District Forum was and the Compensation was reduced as :

“OPs 1 & 2 shall jointly & severally pay the Complainant a total compensation of Rs.2,00,000/-.

OPs 1 & 2 shall also pay the Complainant Rs.10,000/- as litigation expenses.

OP-3 shall reimburse the above amount to OP-1 as per the terms & conditions of the professional policy issued by it.

The Order of the District Forum with regard to negligence of OP-2 stands undisturbed.

The parties are directed to bear their own costs in the Appeal.”

7.       Being aggrieved the Complainant filed the instant revision petition.

8.     We have heard the learned counsel for the parties. Perused the medical record, interalia orders of both the fora.

9.       It is an admitted fact that, in year 2003 the Complainant underwent right ear cochlear implant at OP-1, it was performed by OP-2. But, there was no improvement in hearing.

10.     On careful perusal of record, that in April 2004, Complainant for facial palsy took treatment from Dr. Radhakrishna Nayak of Kochi and got cured completely. In the meantime, as instructed by O.P.No.2 and the Clarion Company, he approached Dr. Sandra Deza Souza in Mumbai. She performed temporary grafting and prescribed higher antibiotics and steroids. But the complainant did not get any relief.  Therefore, the complainant lost his confidence with the OP. No.2 and on 23.4.2004 consulted Dr. Manoj Manikote M.S. (ENT)  an expert in cochlear implantation and Head & Neck Surgery dept. at Malabar Institute of Medical Sciences(MIMS), Calicut. On outoendoscopy it was Dr. Manoj found that the right mastoid cavity has purulent discharge with exposed electrode and the existence of extensive Cholesteatoma and granulation around the electrode.  After removal of the electrode, the ear problem was stopped and the complainant got relief.  Since the keeping of the electrode in such a condition many lead to chances of Meningitis (intracranial infection) and inviting other severe consequences; therefore explantation of the electrode and blind sac closure was done.  He took opinion of Dr. Mohan Kameshvaran and removed the cochlear implantation.

11.     On careful perusal of medical record, it is pertinent to note that OP-2 failed to conduct pre-operative assessment for infection in the right ear and on the same day (25.01.2003) right ear Choclear implantation was done.  Even he has not followed the guidelines as per “Consensus Document of Cochlear Implant Group of India” (Exb.C-32) wherein it was stated that in case of ear discharge blind sac closure at least three months before implantation had to be done.  However, OP-2 admitted that there was minimal discharge in the mastoid of patient and under same condition electrodes were activated.  Thus, in our view, it was not a standard of practice as per the established medical norms. Consequently, the ear infection persisted and Complainant underwent explanation of Choclear implant and blind sac closure surgery at MIMS on 06.10.2004. The discharge summary of MIMS clearly discloses the deficiency in the previous cochlear implant performed by OP-2. At MIMS  it was diagnosed as  “CSOM right left operated Mastoid cavity, Bilateral profound sensorineural deafness, Post cochlear implant-implant failure due to electrode exposure-right”. Hence, in our considered view it was  the deficiency & failure of duty of care from OP-2, thus he  is liable.

12.     From the various literature, it is known that, Cochlear implant is the treatment of choice for rehabilitation of children born deaf and selection of suitable candidates is paramount to successful speech development. Owing to the costly affair and humanitarian ground Central and State Governments are funding many cochlear implants. Failure of the surgery or postoperative infection both are detrimental to the Government and patients.  This is avoidable in majority by careful case selection, appropriate immunization and newer surgical approaches. Indiscriminate use of free cochlear implants by surgeons without adequate workup just for the sake of numbers should be strongly condemned. Government should adopt a registry system to monitor patients for the optimum use and avoid dropouts /non users postoperatively.

13.     The State Commission observed that because the Complainant received re-imbursement of medical claim for Rs.3,57,500/- the cost of cochlear implant from the employer, therefore, the claim of Complainant for the cochlear implant was rejected by the State Commission.  However, as the negligence during implantation was attributed to OP-1 and 2, the amount (cost of implant) shall refunded to the employer. 

14.     We note, there are concurrent findings of the fact.  The revisional Jurisdiction of this Commission is extremely limited, which was held by the Hon’ble Supreme Court in Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd.[1] and in recent judgement of Sunil Kumar Maity vs. State Bank of India & Anr.[2]  

15.     On the basis of the discussion above, the Order of the State Commission is modified to the extent  that, the OP-1 & 2 shall refund Rs.3,57,500/- the cost of implant to the employer of the Complainant and affirm the remaining directions of the State Commission  stand same. 

16.     The Revision Petition, being misconceived and devoid of merit, is dismissed with modification.