DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD
Dated this the 22nd day of August 2015
Present : Smt.Shiny.P.R. President
: Smt.Suma.K.P. Member Date of filing: 17/12/2012
(C.C.No.226/2012)
Dasan,
S/o.Govindan Nair,
Vakekalam House,
Cherpulassery Post,
Palakkad – 679 503 - Complainant
(By Adv.Vinod. K.Kayanat)
Vs
1.The Proprietor,
Moulana Hospital,
P.B.No.31, Ooty Road,
Perinthalmanna – 679 322,
Malappuram
2.Dr.Gnanadas,
Neuro Surgeon,
Moulana Hospital,
P.B.No.31, Ooty Road,
Perinthalmanna – 679 322,
Malappuram
(By Adv.V.K.Venugopal)
3.P.K.Das Institute of Medical Science,
Vaniyamkulam, Ottapalam – 679 522 - Opposite parties
(By Adv.S.Sijin)
O R D E R
By Smt.Shiny.P.R. President.
Brief facts of complaint.
The complainant went to third opposite party, P.K.Das Institute of Medical Science, Vaniamkulam with difficulties of headache, vomiting and difficulty in walking. Dr.Deepak treated and advised to take a CT Scan of the brain. On examination a non enhancing hypo dense mass was seen at posterior foss involving his left cerebellum mass effect seen on right cerebellar hemisphere. The CT Scan impression was that SOL of left cerebellum with features suggestive of pilocytic astrocytoma, obstructive hydrocephalous (space occupying lesion). Immediately he approached the first opposite party hospital and undergone treatment by second opposite party. At the time of admission, he was suffering from acute headache, vomiting and difficulties in walking. On 27-10-2011 he underwent a surgery. The second opposite party stated that the operation was successful, the growth was completely removed and solid particle was sent for histopathology report. On 06-11-2011, he was discharged from the hospital, according to him without subsiding the ailments.
After a few days he developed headache, went to the second OP and second OP advised him that the headache will subside when the scar is healed. The headache and post operative pain continued and several times consultations were made with 2nd opposite party and he prescribed medicines innumerable in quantity.
Due to unbearable headache and bulging of post operative area and uneasiness, he got appointment of 2nd opposite party and CT scan was taken on 24/1/2012 from the 1st opposite party hospital. At that time cyst was detected on the same place where the operation was previously done. The concerned radiologist verbally criticized the hospital and doctors who had conducted operation. When complainant consulted the 2nd opposite party, he advised for a further operation of head and stated that little more growth is to be removed. He further stated that he had no guarantee about the success of operation, then bystanders got doubt and went to Medical College Hospital, Thrissur.
On 27/1/2012 neurosurgery department under the head Dr.P.K.Balakrishnan examined the complainant and advised for mass scan which detected well defined lesion in the left cerebellum with cystic and enhancing solid component with mass effect, obstructive hydrocephalus and features of chronically elevated intracranial pressure. He was admitted on the same day and the surgery was conducted on 2/2/2012 and solid component was completely removed. He was discharged on 11/2/2012 after complete cure and advised for O.P. consultation and medicine. To rule out the recurrence, the Doctor attached to the medical college hospital advised for check up after 6 months. On 24/8/2012, he went for checkup at Thrissur Medical college hospital and CT scan was taken, the impression was that ‘no enhancing focal lesions were found’. The doctor confirmed that there is no recurrence. The follow up treatment after a lapse of 6 months conclusively proved that the growth was not due to recurrence and was due to negligence act of the second opposite party who did the operation on him. The first opposite party is also negligent, because he admitted the complainant without providing adequate treatment facility. The act of opposite parties amounts to professional negligence, deficiency in service and unfair trade practice. Hence, he claims an amount of Rs.3,50,000/- as treatment expense and Rs.60,000/- spent for the second operation and for Rs.2 lakhs as compensation for the mental agony and hardships suffered by him.
1st Opposite party filed version contending the following.
The hospital is having full fledged facilities and remote controlled highly sophisticated operation table and modern surgical equipment including carl-zesiss magneticlic look operating microscope electric Craniotome, bipolar and unipolar cautery, central and electric section, naming only the few. Adequate trained staffs are employed in operating the systems. The doctors employed are also well qualified and experienced professionally. The second opposite party is highly qualified and well experienced in Neuro surgery. He is MBBS, MS(surgery), MCH (Neuro surgery), Dip.NB (Neuro Surgery), with an experience of 20 years as consultant Neurosurgeon. 1st Opposite party submitted that there is no negligence or deficiency in service or unfair trade practices on the part of 1st opposite party. Hence the complaint is only to be dismissed.
2nd opposite party filed their version contending as follows:
When examined, the complainant was conscious, optic fundus bilateral fully developed papilloedema, characterized by severe oedema, redness and haemorrhages, bilateral pyramidal signs with increase in tone both sides with up going planters, bilateral marked cerebellar signs more on left side with ataxia and mild neck stiffness. The CT scan brain dated 26/10/2011 revealed hypodense lesion left cerebellum with obstructive hydrocephalus. Based on CT findings it was diagnosed as cerebellar hypodense lesion with mass effect and increased intracranial pressure. The complainant was informed about the diagnosed disease condition and the requirement of surgical intervention without causing delay. The complainant was admitted on the same day and underwent pre-operative anaesthetic checkup and evaluation and surgery was posted to 29/10/2011.
The opposite party had explained the pros and cons of the surgery required, namely sub occipital craniotomy and removal of lesion for the diagnosed condition of the patient and after fully conversant with the operative procedure and risk factors involved therein, the complainant voluntarily agreed and consented for surgery. Under all ascetic care and precautions second opposite party conducted sub occipital craniotomy through left para-median incision. Intra operatively cerebellum was found bulging and approached the cyst through 2- 3 milli meter hole and cyst wall opened. Xanthochromic fluid gushed out. Cyst wall appeared gliotic and the gliotic wall removed by suction and cautery and bits were sent for histopathology. Intra operative and post operative periods were uneventful. Post operatively the complainant got complete recovery from symptoms. He was discharged on 6/11/2011 with complete cure of symptom and papilloedema was subsiding and he was able to walk without any difficulty. He was advised medicines and for a review after taking rest for one month.
The complainant turned up for review in the OPD only on 10/12/2011, i.e. 34th day after discharge. The histopathology report disclosed possibility of simple or Glial cyst (benign). He did not report any specific complaints and he was not prescribed medicines. The complainant came up for review on 17/1/2012 i.e. on 72nd day of operation, with complaints of congested feeling in the head with occasional headache and scar tenderness. On examination, fundus was normal, no ataxia and suspecting nystagmus he was advised tab. Miradase and tab. Optroz for two weeks and advised for review after medication.
On 20/1/2012, the complainant reported with complaints of occasional headache. The complainant was stable with fundus mild oedema and mild nystagmus and he was advised appropriate medicines to relieve the symptom. As the patient became symptomatic on 80th day post operatively, opposite party advised for a repeat CT scan of brain for persistence of symptoms despite medication. On 24/1/2012 the complainant had severe headache on and of and the examination showed oedematous fundus with left sided cerebellar signs and bulge at the surgery site most probably due to recurrence of cystic lesion or formation of new lesion. On the basis of clinical symptom of recurrence of symptoms, a CT brain was taken which showed lesion with cystic and solid mass and mass effect. In the light of the scan report evidencing cystic lesions with mass effect which could be either recurrence of cystic lesions (glial cyst-benign) or formation of new lesion, opposite party advised the complainant to get admitted to the hospital for re-surgery. But the complainant and his relatives were not willing for admission and left the hospital against medical advise. This opposite party has exercised due diligence, expertise and care in the diagnosis and treatment of the complainant. The patient initially had symptoms suggestive of hypo dense lesion with obstructive hydrocephalus and CT report was suggestive of pilocytic astrocytoma and it could be managed surgically and the patient relieved off symptoms in post operative period. The unequivocal fact that the patient was completely relieved of symptoms after surgery done by opposite party shows that it was attributable to cystic lesions. In view of the obstructive hydrocephalus, the decision of opposite party to proceed with sub occipital craniotomy was a timely decision which saved the patient from ensuing complications likely to endanger his life.
The surgery was done with due care by following standard and accepted surgical protocol by using operating microscope through left para median incision and all microscopically visible lesions were removed. A second surgery in the posterior fossa would not have as much difficulty as the first sub occipital craniectomy and operating surgeon could effortlessly reach the area of pathology revealed as per scan report. The histopathology report from Medical College Hospital reveals pilocystic astrocytoma, which is evidently and most probably a new formation after removal of cystic lesions.
At the time of discharge on 06/11/2011 the patient recovered from ataxia and was able to walk without difficulty and papilloedema was subsiding and the next post operative review was after 40 days without any complaints. The unassailable post surgical clinical settings of complete relief of earlier symptoms sheds light on the formation of new lesion. More over recurrence of cystic lesion or formation of new lesions are medically reported known complication after sub occiopital craniectomy for removal of lesion.
In the light of the said possibility, repeat CT scan is advised for evaluating chances of enhancing focal lesion after the surgical procedure. The second surgery was not necessitated by any act or omission on the part of the opposite party because a second surgery is indicated in every case for the occurrence of new lesion or recurrence of lesions manifested by clinical symptoms as a known complication involved in the said surgical procedure.
The opposite party acted as per accepted medical practice in the treatment of the complainant with due diligence and care and there was no negligence or carelessness on his part and hence he is not liable to compensate the complainant.
The allegation that opposite party did not remove the growth completely is misleading. No surgeon can assure complete removal of lesion using operating microscope through left para medium incision since there is chance for recurrence and formation of new lesions post operatively and opposite party had only told the complainant that all microscopically visible lesions were removed.
The allegations that the complainant was discharged from the hospital without subsiding the ailments is falsely stated for undue advantage. Further allegation that after few days from the date of discharge, he complained about headache to this opposite party and this opposite party promised complete removal of growth and that headache would subside when the scar was healed etc. are false. The complainant’s first post operative review was after 40 days and he was asymptomatic without any specific complaints and hence not advised medicines. The complainant’s case that since few days after surgery he had been suffering from headache is falsely cooked up for undue advantage as otherwise he would not have waited for 40 days to consult the doctor.
The complaint is only to be dismissed in the above circumstances.
3rd opposite party filed version contending that he is an unnecessary party to the proceedings. The complainant has taken CT scan from 3rd opposite party on 26/6/2011 and left the hospital without taking any treatment. They are arrayed as opposite party for the purpose of gaining jurisdiction only. Hence the complaint against this opposite party is to be dismissed.
Complainant and 1st and 2nd opposite parties filed their proof affidavits. Ext.A1 to A12 are marked from the side of complainant. Expert doctor was also examined by commissioner and report was marked as Ext C1.
The following issues are considered
1.Whether there is deficiency in service or negligence on the part of opposite
parties?
2. If so what is the relief ?
Issues 1&2
Both parties heard. We have perused the documents produced. 2nd opposite party contended in his version that recurrence of cystic lesion or formation of new lesions are medically reported known complication after sub occipital craniectomy for removal of lesion. In the light of the said possibility, repeat CT scan is advised for evaluating chances of enhancing focal lesion after the surgical procedure. But in this case 2nd opposite party did not take CT Scan before or just after the operation of the complainant. He relied upon on the scanning report of the 3rd opposite party hospital before conducting surgery. Similarly he did not take MRI scan or CT Scan to detect whether there is residuals of tumor are left. It is clear case of negligence on the part of the 2nd opposite party.
On perusing the Ext A1 and A4 we found that the complainant had SOL at left cerebellum with features suggestive of Pilocytic Astrocytoma and obstructive hydrocephalous. Expert doctor also deposed this fact that the both reports are identical in nature. He also deposed at the time of cross examination that it is brain tumor, even though a single cell of the tumor is left can grow again and produce symptoms and if there is a residual of tumor left, it will recur only after six months to one year. 2nd opposite party also admitted that if a single cell is left behind, there are chances of recurrence . Recurrence may occur after a few days or after a year. But from the evidence it is seen that complainant had faced very same symptoms before and after surgery. Moreover histopathology reports Ext A3 and A7 did not show that the tumor was in the nature of recurrence, cancerous or malignant. Ext.A8 conclusively proved that the growth was not due to recurrence. In this circumstances we cannot arrive at a conclusion that the tumor was in the nature of cancerous and the second surgery was due to recurrence of this. It is true that the decision of 2nd opposite party to proceed with sub occipital craniotomy was a timely decision which saved the patient from ensuing complications likely to endanger his life.
The follow up treatment after a lapse of 6 months from the date of second surgery conclusively proved that the growth was not due to recurrence and was due to negligence act of the second opposite party who did the operation on him. From the above circumstances we are of the opinion that 2nd opposite party failed to remove the growth completely . No evidence is adduced by the 2nd opposite party to prove that he has removed the growth completely. Expert Doctor deposed at the time of examination that Ext A1 Scanning report from P K Das Hospital and Ext A4 scanning report which was taken after three months of 1st surgery from 1st opposite party hospital are identical. More over lesion is found in the left cerebellar hemisphere in Ext A1,A4 and A5 scanning report. It shows that the 2nd opposite party did not removed growth wholly or partly. Complainant submitted at the time of argument that he has no problem as before even after two years of second surgery. This shows that 2nd opposite party committed negligence in conducting surgery. Being admitted the 2nd opposite party is the employee of the 1st opposite party ,1st opposite party is vicariously liable for the acts of the 2nd opposite party. Since the result of the 1st surgery was not successful, the complainant had to undergo 2nd surgery. Hence the 1st and 2nd opposite parties are liable to compensate the complainant for the expenses incurred for the first surgery, for pain and sufferings and for mental agony sustained.
In the above circumstances we are of the view that 2nd opposite party conducted surgery without due care and caution. 1st opposite party is vicariously liable for the acts of 2nd opposite party. In the result complaint is allowed. 1st and 2nd opposite parties are jointly and severally liable to pay a sum of Rs.2,00,000/- (Rupees Two lakhs only) towards the expense incurred for the 1st surgery, Rs.50,000/- (Rupees Fifty thousand only) towards the compensation for mental agony sustained and Rs.50,000/-(Rupees Fifty thousand only) for compensation for pain and sufferings along with cost of Rs.5,000/- (Rupees Five thousand only) to the complainant. 3rd opposite party is exonerated from the liability for the reason that they only diagnose the disease and further treatment was done by the 1st and 2nd opposite parties.
Order shall be complied within a period of one month from the date of receipt of order, failing which complainant is entitled for 9% interest per annum for the whole amount from the date of order, till realization.
Pronounced in the open court on this the 22nd day of August 2015.
Sd/-
Shiny.P.R.
President
Sd/-
Suma.K.P.
Member
Appendix
Exhibits marked on the side of complainant
Ext.A1 – CT Scan brain report dated 26/10/2011 issued by PK Das Institute of
Medical Science, Vaniyamkulam
Ext.A2 – Discharge summary dated 6/11/11 issued from Moulana Hospital,
Perinthalmanna
Ext.A3 – Histopathology report dated 8/11/11 issued from Moulana Hospital,
Perinthalmanna
Ext.A4 - CT Scan report dated 24/1/12 issued from Moulana Hospital,
Perinthalmanna
Ext.A5 - MRI report dated 27/1/12 issued from HLL Lifecare Ltd.
Mulankunnathukavu, Thrissur
Ext.A6 – Discharge card dated 11/2/12 issued from MCH Trichur
Ext.A7 – Histopathology report dated 8/2/12 issued from Radiodiagnosis
Department, MCH Trichur
Ext.A8 – CD Head Scan report dated 19/9/12 issued from department of
Radiodiagnosis, MCH Trichur
Ext.A9 – Outpatient ticket dated 21/9/12 issued from MCH Trichur
Ext.A10 – Outpatient Card dated 10/12/2011 issued from MCH Trichur
Ext.A11series – Bills (41 Nos) issued from Moulana Hospital, Perinthalmanna.
Ext.A12 series – Case sheet issued by Moulana Hospital, Perinthalmanna.
Exhibits marked on the side of opposite party
Nil
Witness examined by Adv.Commissioner (Adv.K.Dhananjayan)
C1 – Dr.P.K.Balakrishnan, Prof.Neurosurgery, Govt.MCH, Trichur.
Witness examined on the side of complainant
Nil
Witness examined on the side of opposite party
DW1 – Dr.Gnanadas
Cost
Rs.5,000/-allowed as cost of the proceedings.
