Nizam's Institute of
Medical Sciences Vs. Prasanth S.Dhananka & Ors. [2009] INSC 1073 (14 May
2009)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.4119 OF 1999 Nizam
Institute of Medical Sciences ...Appellant Versus Prasanth S. Dhananka &
Ors. .........Respondents With C.A. No. 3126 of 2000
HARJIT SINGH BEDI J.,
1.
This
judgment will dispose of Civil Appeal No 4119 of 1999 and Civil Appeal No. 3126
of 2000 filed by the complainant, Prasanth S. Dhananka . The facts are as under
:
2.
The
respondent Prasant S. Dhananka ( hereinafter called the
"complainant"), then 20 years of age and a student of Engineering,
complaining of recurring fever was examined in 2 the hospital run by the
Bharat Heavy Electricals Limited as his father was employed with that
Organisation. As the cause of the fever could not be identified, he visited the
appellant - Nizam Institute of Medical Sciences (NIMS) on 9th September, 1990
in the evening OPD. He was examined by one Dr. Ashish Boghani, a Chest and
Tuberculosis Specialist and was advised to undergo on ultrasound guided biopsy
for Neurofibroma, an innocent tumour, after an X-ray revealed a mass in the
left hemithorax with posterior mediastinal erosion of the left 2nd, 3rd and 4th
ribs. As several attempts at Fine Needle Aspiration Cytology (FNAC) under ultra
sound guidance did not give any conclusive evidence as to the nature of the
mass detected in the X-ray examination, the complainant was referred (on 5th
October, 1990) for further examination to Dr. U.N. Das, who suggested another
attempt at the same procedure but under C.T. guidance. This test too did not
show any lesion on which Dr. U.N. Das suggested that he undergo an excision
biopsy and referred him to Dr. P.V. Satyanarayana, a Cardio Thoracic Surgeon,
who further advised him to report at the hospital on 16th October, 1990 for allotment
of a room. The complainant was admitted to the hospital on 19th October, 1990
and the operation was performed on 23rd October, 1990 and the tumour was
excised.
It appears that
immediately after the surgery, the complainant developed acute paraplegia with
a complete loss of control over the lower limbs, and some other related
complications, which led to prolonged hospitalization and he was ultimately
discharged from the hospital on 19th May, 1991 completely paralyzed with no
change in his sensory deficit. The discharge record also shows that the patient
required continuous physiotherapy and nursing care on account of infection of
the urinary tract and the development of bed-sores etc. It is the case of the
complainant that after his discharge from NIMS, he visited several other
hospitals seeking relief, but to no avail.
On 11th May, 1991 the
complainant's father requested NIMS for a detailed report so that his son's
case could be discussed with experts from other developed countries` so as to
improve his quality of life. No reply was, however, forthcoming despite a
reminder. Another letter dated 12th November 1991 also drew no response.
Completely frustrated, the complainant filed 4 a complaint before the National
Consumer Redressal Commission (hereinafter referred to as the
"Commission") on 5th April, 1993 alleging utter and complete
negligence on the part of Dr. P.V. Satyanarayana and the other attending
doctors and also making NIMS vicariously liable and the State of Andhra Pradesh
statutorily liable for the negligence of the doctors concerned. Allegations was
primarily levelled against Dr. P.V. Satyanarayana for negligence before, during
and after the operation. It was alleged that the medical record did not
indicate any immediate danger to the complainant's life and health and that his
father had pleaded with the doctors that the operation be postponed till such
time he could complete his engineering degree course. It was further alleged
that the doctors had not carried out the required pre-operative tests which
were available in NIMS itself and that the complications which could possibly
flow as the result of an excision biopsy had not been spelt out to the
complainant prior to the procedure. It was also submitted that operating on a
neurofibroma or a schwannoma which had neurological implications as well,
warranted the involvement of a Neuro 5 surgeon but no such opinion was sought
before the surgery. It was also pleaded that the consent that had been taken
was only for the purpose of an excision biopsy which was an exploratory
procedure, but Dr. Satyanarayana had carried out a complete excision removing
the tumour mass and the fourth rib thereby destroying the inter-costal blood
vessels leading to paraplegia and had a Neuro-surgeon been associated with the
operation, this problem could well have been avoided. The complainant also
alleged that negligence in post-operative treatment and care had led to
bedsores, severe pain, and high temperature and frequent and unnecessary
exposure to X-rays which could be a potential hazard later in life. He
accordingly claimed compensation as follows:
A) SPECIAL DAMAGES
(PECUNIARY)
1. Loss of future
earnings Rs.89,17,200 (Annexure XI)
2. Present burden of
expenses Rs. 3,38,604** [Annexures IV(a) to(d) ]
3. Damages on account
of the Rs. 30,34,930 complainant by father, mother, younger brother &
maternal Uncle [Annexures VII, VIII, IX & X]
4. Prospective burden
of expenses Rs. 3,00,00,000 (Annexure-XII) B) GENERAL DAMAGES (NON PECUNIARY)
Pain and suffering, loss of amenities & Rs.38,30,000 Enjoyment of life
& shortening of life Expectancy.
(Annexures XIII, XIV,
XV) - Rs.4,61,20,734 ** (Later in his affidavit dated 5.2.94, this has been
shown as Rs.3,49,022 and the total claim as 4,61,31,152: the present burden of
expenses includes an amount of Rs.1,27,644/- paid to OPI and Rs.91,002/- to
other hospitals).
3.
On
notice several replies were filed by the respondents.
NIMS, Respondent no.1
before the Commission, filed a reply on behalf of respondent Nos. 2 to 5 and
denied the allegations in the complaint and pleaded that there had been no
negligence. Respondent No.6 before the Commission i.e. Chief Secretary Andhra
Pradesh Government, disowned any liability and pleaded that it had absolutely
no concern with the matter. Several pleas on merits were also taken by the
respondents.
It was pleaded that
the provisions of the Consumer Protection Act could not be attracted and that
the complaint had been made after a lapse of one and half years and was,
therefore, an afterthought. It was also pleaded that reasonable care had been
taken in the treatment by doctors who were highly skilled in their specialties
and in this view of the matter, the claim for compensation and that too running
into several crores, was not justified. The respondents' then traversed the
facts of the case and pleaded that though the initial examination of the
patient ruled out the presence of a lymphoma which was a malignant condition,
the possibility of an undetermined malignancy within a large area in the left
thorax had to be examined as a benign lesion was unlikely to cause prolonged
fever along with erosion of the left 2 nd, 3rd and 4th ribs as shown in the
X-rays' and as a rapidly growing benign lesion could also cause erosion of the
ribs, a biopsy of the mass to confirm the diagnosis was essential to plan the
future course of action. It was further pleaded that a history of fever for
about 15 days prior to admission with loss of appetite and weight suggested
that 8 whatever be the nature of the lesion, benign or malignant, its presence
was taking its toll on the general condition of the patient which required some
minimal tests. It was also pointed out that as four attempts at FNAC had not
yielded any conclusive pathological diagnosis, the next best alternative was to
go in for an excision biopsy by thoracotomy (an operation involving incising
the wall of the thorax) which was a test which could finally determine the
nature of the mass. It was, however, admitted that the complainant and his
parents had pleaded during discussions in the OPD for postponement of the
proposed excision biopsy to enable him to complete his education but when it
was explained to them that early confirmation of the diagnosis to exclude the
possibility of a malignancy was essential, the parents had consented for the
surgery after they had been fully informed about all possible risks and it had
also been explained to them that after the body had been opened up, a small
piece of the mass would be immediately sent for histological examination and
that any further procedure would be based on the report received therefrom. It
was further pleaded that after the thoracotomy 9 had been performed, a part of
the tumour had in fact been sent for a biopsy and the report had been received
soon thereafter that the mass was benign but it was nevertheless decided to
excise the entire tumour as the 4th rib had eroded and it had been found
essential to remove the 2nd and 3rd rib as well and for this purpose some inter
costal blood vessels had also been sacrificed. It was also submitted in
addition, that as tumours though initially benign can cause several medical
complications endangering the patient's life and can also turn malignant at a
later stage, it had been thought fit to remove the tumour along with the
involved ribs and that all care expected of doctors had been taken and that it
was only a cardiothoracic surgeon who had the skill to perform such a surgery
and that the help of a neuro surgeon had to taken if the tumour had any intra
spinal extension and as in this particular case there was no such extension,
the presence of a neuro surgeon was not required. It was finally pleaded that
all investigations before the operation had been performed and full medical
care had been provided to the complainant at the post-operative stage as well.
4.
Affidavits
were filed as evidence by the parties in support of their pleadings. As the
complainant was (and is) a severely handicapped person and confined to a wheel-
chair, the Commission directed, on consent of both parties, that the evidence
be recorded by the President of the Andhra Pradesh State Commission and the
depositions thereafter transferred to the Commission. In an affidavit dated
June 1994 filed by NIMS a request was made to invite specialists from the All
India Institute of Medical Sciences, New Delhi so that the question of
negligence, if any, could be properly investigated but the affidavit also added
that the deponent had no objection, if the Commission did not propose to follow
this procedure.
The complainant too
was directed to file an application if he wished to examine any expert medical
witness in support of his pleas. An application was accordingly filed on 22nd
August 1994 proposing the name of Dr. A.S. Hegde, a Neurosurgeon, practicing in
Bangalore and he was duly summoned and his statement recorded by the President
of the State Commission at Bangalore. On 19th 11 September 1996, the counsel
for respondent Nos. 1 to 5 undertook to produce the entire record before the
Commission but it was noticed on 25th April 1997 (when the case came up for
hearing) that the record had not been submitted. The Commission accordingly
directed that the record be filed that very day. The case was finally heard on
4th September 1998 and after arguments had been concluded, the parties were
given two weeks time to file written submissions. The Commission declined (at
this belated stage) to accept the prayer of some of the respondents made on 5th
October 1998 ( i.e. after arguments had been concluded) to summon experts from
the AIIMS as Court witnesses.
5.
During
the course of arguments before the Commission, allegations pertaining to
negligence at different stages, that is, before, during and after the
operation, were raised. The main contention of the complainant was that
pre-operative diagnostic investigation had not been fully carried out and after
four futile attempts at needle biopsies had not given any conclusive result, a
C.T. Scan 12 or an MRI by an experienced Radiologist would have revealed the
existence of the tumour and that in any case, since Neurofibroma or Schwannoma
tumours were basically neurological in nature, the complainant ought to have
been referred to a Neurophysician and if necessary to a Neurosurgeon. The
respondents, however, pleaded that the investigations relating to biopsies were
to be conducted by a Radiologist and not by a Surgeon and that the complainant
had been referred to a cardio - thoracic Surgeon as the tumour was in the
thorax and that further investigations by an MRI were not necessary as
sufficient information about the extent of the tumour had already been
revealed. On the basis of these broad facts, the Commission went into the
question as to whether the consent for the operation for the removal of the
tumour had been obtained from the complainant or his attendants. The Commission
observed that admittedly some discussion had taken place between Dr. Satyanarayana
and the complainant and his parents about the possibility of deferring the
operation till the 13 completion of the complainant's education but after Dr. Satyanarayana
had explained the gravity of the situation to them, they had impliedly given
their consent for the operation. The Commission then examined the question of
negligence at the stage of the operation itself on 23rd October, 1990 and
observed that the record of the case showed that there had been erosion of the
ribs and this had been confirmed during the operation which indicated that the
tumour had spread into the spinal area and as this required the intervention of
a Neurosurgeon, the neglect in associating one was clearly a case of
negligence. The Commission also noted that a Neurosurgeon had, in fact, been
called in though at a belated stage. The Commission finally went into the
question of negligence at the post-operative stage and the plea of the
complainant that lack of care had led to bed sores, very high fever and other
related complications, and rendered its opinion on this aspect as well.
6.
The
Commission, in its order dated 16th February, 1999 concluded as under:
14 "From the
aforesaid discussion, we are clear in our mind that there was negligence and
deficiency of service on the part of the OPs in the different stages of the
case.
(i) OP 2 had stated
that had he known pre-operatively about the extension of the tumour into
intervertebral foramen, he as a CT surgeon would not have chosen to deal with
it and that on noticing vertebral erosion while operating, he requested OP3
into the theatre. Thus, according to OPs cases of vertebral erosion and/or
extension into intervertebral foramen, warranted the performance of surgery by
the neurosurgeon along with the CT Surgeon.
(ii) There was
information pre-operatively before both OP4 and OP2 about vertebral erosion at
T 4 level and affectation of vertebrae. On the basis of this information alone,
OP4 should have referred the case to the neurosurgeon as well as to the CT
Surgeon; instead, he had referred only to the CT Surgeon. When the case was
referred to OP2 by OP4, OP2 should have himself discussed the case with OP3,
the neurosurgeon, who was also the Director of the Institute at the relevant
time, in view of the aforesaid clinical information, and the team of OP2 and
OP3 should have planned and performed the surgery. This, however, was not done.
15 (iii) Not only
did they fail to utilize the available pre-operative clinical information, OP4
and OP2 also failed to conduct necessary pre-operative diagnostic tests like
MRI and myelogram which would have provided the information pre-operatively on
the extension of the mass into intervertebral foraman and which information
would have even according to OP2 brought the neurosurgeon as the prime surgeon.
This failure on the part of OP4 and OP2 deprived the Complainant of the
services of neurosurgeon in the entire surgery right from the beginning.
(iv) After failing
thus miserably in the pre- operative stage, there was negligence in the
operative stage too. Although the surgery was admittedly to know about the
pathology of the tumour, almost the entire tumour seems to have been excised
before knowing its pathology as a benign Schwannoma. We had earlier noted that
some Schwannoma form dumbbell extensions through the inter-vertebral foramen,
and there is admission by OP2 that he noticed extension into intervertebral
foramen.
Although the
practical significance of distribution of nerves in Schwannoma which enabled
its removal without transaction of nerves was admitted, yet two inter-costal
vessels were sacrificed in the surgery.
(v) We have already
noted that the case records were not produced by Ops until they were again
directed to do so through our Order dated 25.4.97.
Thus, the medical
expert who was examined in 1994 had based his views on discharge summary,
evening special clinic record, pre-operative X-rays and CT Scan reports,
post-operative X- rays, CT Scan and MRI. The case records containing the copy
of discharge record which varied from the original discharge record, the OPD
morning clinical record, the operation notes, the histopathology report were
submitted by the OPs only after April, 1997 and these records contained vital
information regarding erosion of vertebra and extension of tumour into
intervertebral foramen etc. There is force in the Complainant's allegation that
there was suppression of vital information and only half information made
available to the medical expert witness which allegation has not been rebutted
by the Ops. Thus, the medical witness's deposition is to be deemed to have been
based on incomplete data.
(vi) It is also found
that the operating surgeon OP2 and the neurosurgeon OP3 who joined at the end
of the surgery left the theatre without meeting the anxious parents waiting
outside the operation theatre from 9 A.M. to 12.45 P.M. and without appraising
them about the removal of tumour and the rib, the pathological nature of the
tumour for which purpose the surgery was done etc. The parents came to know
from another attending doctor in the T.R.R. at about 6 p.m., that day who
reported that the Complainant had come out of anaesthesia but that he has got
paraplegic. It was left to the shell- shocked father of the Complainant to
collect OP2 and OP3 to know about the developments and the condition of the
patient; in effect, the parents could meet these Ops only at about 10 P.M. that
day. One gets the impression that had these Ops know known about the onset of
paraplegia in the operation theatre itself as they contended, they could have
normally come out of the operation theatre, met the parents and relatives and
reported about the outcome of the surgery. It is difficult to brush aside the
feeling that as senior surgeons and faculty members they would have not
comprehended the serious outcome of the operation which is perhaps why they
left without meeting the parents.
(vii) OP1 as an
institution failed to carry out its statutory function of exchanging opinion on
the case with sister institutions in India and abroad for post operative
management to retrieve the patient from the damage to the extent possible.
In the light of
aforesaid, we hold that there was negligence on the part of OP1, OP2, OP3,OP4
and OP5 and deficiency of service to the Complainant - patient.
18 Since OP6 is
already represented through OP1 (according to notification establishing the
institute), we do not consider it necessary to bring OP6 separately under the
purview of the Complainant. In the result, OP1 to OP5 are liable to pay the
compensation as determined hereunder. Since, however, OP1 is the institution in
which OP2 to OP5 are employed, we hold that OP1 is singularly responsible for
payment of compensation. In the written submissions filed after arguments were
concluded, Ops have observed that should the Commission decide to award any
compensation, they reserve the right of making further observations. We are of
the opinion that OPs were at liberty to make whatever submissions they wanted
to make on the point of quantum of compensation during the arguments stage
itself; at that stage. Ops only stated that the claim was exaggerated and ill
founded. In their written submissions, Ops have also informed that NIMS as
medical institution during the period in question is covered by a medical
insurance policy to a tune of Rs.10 lakhs for the period 25.5.90 to 24.5.91
with the United India Insurance Company, Hyderabad, the maximum liability being
Rs.10 lakhs subject to one claim out of any one event of Rs.5 lakhs.
The complainant has
claimed compensation for i) present burden of medical expenses, ii) prospective
burden of expenses, iii) loss of future earnings, iv) pain, suffering, loss of
amenities and 19 enjoyment of life and shortening of life expectancy and v)
damages / compensation for father, mother, brother and maternal uncle. The
complainant claimed for medical expenses on hospital and related charges;
Complainant's father was an employee of BHEL at the relevant time and these
would be reimbursed by them. We do not propose to interfere in such an
arrangement. Complainant has claimed for future burden of expenses including
physiotheraphy, nursing, washer woman, aya etc. We feel that the items mentioned
under this category such as regular dressing material, bags and tape for urine
drainage, cotton rolls for defeacation, material for loin clean up and
treatment, dressing, nursing services including cleaning, giving bath, bed
sores etc. physiotheraphy and extra nourishment are necessary and allowable.
The Complainant has estimated the future burden of expenses for a period of 50
years. It may be mentioned here that the neurosurgeon from Bombay, Dr. Sanghal,
a Specialist in Spinal Cord who examined the Complainant - patient, opined that
the damage was severe but that there was some chance of at least partial
recovery because the patient is young. Although the complainant's parent
mentioned there has been no iota of improvement, yet there appears to be hope
for some betterment with a proper rehabilitation plan. Regarding the
compensation claimed on account of loss of future earnings, we realize that the
incident has severely affected the career of the 20 complainant which, as seen
from his academic record prior to the operation, would have been a good one
otherwise.
We also perceive the
anxiety, agony and distress of the parents on the condition of the Complainant
consequent to the operation. It is stated in the complaint that the
Complainant's mother had to give up her teaching job in a school so as to look
after the Complainant who is totally bred-ridden and requires round the clock
assistance and attention. It has also been stated that Complainant's brother
was mentally upset which affected his performance in his examination and
resulted in securing admission in a college by paying huge fee.
Further, the
Complainant's maternal uncle had to supplement the physical efforts of his
parents in attending on the complainant and also bring food to the hospital even
on curfew-bound days with great difficulty. In short, the entire family was put
in a disarray.
While determining the
compensation to the Complainant as also to his parents, we have kept in view
the broad parameters followed by us in an earlier case of medical negligence
(Original Petition No.292 of 1994, Harjot Ahluwalia (Minor) vs. Spring Meadows
Hospital & Anr.) { II (1997) CPJ 98 (NC)} which was upheld by the Hon'ble
Supreme Court of India { Civil Appeal No.7708 of 1997 with Civil Appeal No.7858
of 1997 { I (1998) CPJ 1 (SC)}. The Apex Court in their judgment while
upholding our order have also dealt with the question of 21 compensation to be
awarded in favour of the parents of the minor child for their acute mental
agony and life long care and attention on the minor child. In the aforesaid
case the Apex Court held that the parents of the child having hired the
services of the hospital, are also the consumers within the meaning of section
2 (1)(d)(ii) and that they would also be entitled to award of compensation due
to negligence of the Ops to the Complainant.
A similar situation
has arisen in the case on hand where the complainant had been given financial
support by the parents for hospitalization and associated expenses;
although an adult he
has to be given physical support for a very long period by the parents in view
of his physical immobilization and sensory deficit consequent to the surgery.
As for the claim for the Complainant's brother and maternal uncle, the same
cannot be sustained, as they are not covered by the definition of
"Consumer" under the Act.
We are of the view
that the facts and circumstances of the case justify (i) the award to the
Complainant of an amount of (a) Rs.8 lakhs (expected to yield a monthly
interest of about Rs.8,000/-) towards prospective charges for physiotheraphy,
nursing and associated expenses, (b) Rs.4 lakhs (expected to yield a monthly
interest of about Rs.4,000/-) for supplementing the complainant's future
earnings and (c) Rs.2 lakhs as compensation for his mental agony, physical
suffering and pain and also for physiotheraphy, nursing and associated 22
expenses already incurred by him and ii) award of compensation of Rs.1.5 lakhs
to the parents for their perpetual mental agony, stress and depression and for the
continued support, care and attention they have to provide to the complainant
and for the income loss of the mother due to dislocation in her job to look
after her son. We, therefore, direct OP1 to pay a total compensation of Rs.14
lakhs to the complainant and compensation of Rs.1.5 lakhs to the complainant's
parents jointly, within a period of 2 months from the date of receipts of this
order failing which interest at the rate of 15 per cent per annum shall become
payable by OP1 until the date of payment. We also impose costs of Rs.25,000/-
on OP1.
Complaint is
allowed."
7.
We
may, at this stage observe, that the complainant's plea that no consent for the
excision of the tumour had been taken was rejected holding that prior `implied'
consent had indeed been taken.
8.
Two
appeals have been filed in this Court against the order of the Commission;
Civil Appeal No.4119 of 1999 by NIMS disowning any liability and Civil Appeal
No.3126 of 2000 by the complainant Prasanth S. Dhananka asking for an
enhancement of the compensation. Both these matters are being disposed of by
this judgment.
9.
Mr.
Prasanth Dhanaka, the appellant in Civil Appeal No. 3126/2000 and the
respondent No.1 in C.A. No.4119/1999 has supported the finding of the
Commission on the question of negligence, but has, in addition, challenged the
observation of the Commission that the implied consent of the complainant and
his parents had been taken for the excision of the tumour. He has, however,
primarily pleaded that the compensation given by the Commission was inadequate
and not commensurate with the damage and agony that he and his family had
undergone and which had cut short the promising and lucrative career which lay
ahead for him.
10.
Mr.
Anil Kumar Tandale, the learned counsel appearing for the NIMS, the appellant
in C.A.No.4119/1999 has, however, challenged the entire basis of the findings
recorded by the Commission both on the question of negligence and on the
quantum of compensation. It has been pleaded that all requisite procedures had
been adopted before, during and after the operation and in this view of the
matter, there was no negligence on the part of any doctor. He has also pleaded
that the quantum of 24 compensation claimed by the complainant on the basis of
the calculations submitted before this Court in the form of a separate Paper
Book was wholly unjustified, and that, if at all, any compensation had to be
awarded, it had to be under the multiplier method, a procedure which had been
adopted in several decisions of this Court.
11.
11.As
the primary issue at this stage would be the negligence or otherwise of the
Doctors of NIMS we have extensively heard the parties on this question keeping
in mind that the present proceedings are in the nature of a first appeal from
the orders of the Commission. In this background, we have examined the three
issues raised before us (closely interlinked as they are) under the three broad
parameters adopted by the Commission, the alleged negligence before, during and
after the operation.
12.
The
first stage would be that of diagnosis. As already observed above, we have
carefully and independently evaluated the findings of negligence arrived at by
the Commission. The main plea of the complainant is that the pre-operation
examinations had revealed a situation which 25 required the intervention of a
Neuro Surgeon. The case of Dr. Satyanarayana, however, is that the involvement
of the vertebral column had been revealed only after the removal of the tumour.
We find this assertion to be incorrect. It may be mentioned that the operation
had been performed on 23rd October 1990 but in the pre-operative discharge
record dated 19th September 1990 ( Annexure P-29) there is a reference to a
mass lesion in the left upper chest with erosion of ribs and vertebrae and no
masses anywhere else.
This document has to
be read in conjunction with Annexure P-27, a discharge record dated 19th May
1991 wherein it was specifically recorded that during the operation on 23rd
October 1990 a huge tumour had been noticed in the left hemithorax with the
second and third ribs eroded and that the vertebral body was eroded and the
tumour mass along with extensions into chest wall and the fourth rib were all
excised. These two documents when read together belie Dr. Satyanarayana's
statement in his cross-examination that the erosion had been revealed for the
first time after the tumour had been removed. It has 26 been the positive case
of the complainant that had an MRI or Myclography test been carried out, the
possibility that the surgery was not required could have been revealed.
The complainant has
referred us to an Article "Diagnosis and Treatment Options for
Neurofibromas"- published by Robert R. Chase, M.D., Stephen Bosacco, M.D.,
Richard Levenberg, M.D., three eminent Doctors in which it has been observed as
under:
"Spinal
neurofibromas may mimic intraspinal neoplasms. Dural ectasia creates bony
changes, including foraminal widening, vertebral body scalloping and pedicle
thinning. In addition, neurofibromas may be associated with intrathoracic
meningoceles, spondylolosthesis, scoliosis, and kyphosis. On plain films, bony
changes may be evident, i.e. scalloping or foraminal enlargement.
Computerized axial
imaging will reveal bony changes, in addition to the mass representing the
neurofibroma. MRI will provide further delineation of the soft tissue and mass.
Myclography can demonstrate the nerve roots or cord level in question."
13.
Similar
observations have been made in "Principles of Surgery" Sixth Edition
by Seymour I. Schwartz, M.D. in 27 which it has been observed that a MRI is a
noninvasive diagnostic modality, especially for vascular lesions and that in
addition Myclography may be required to confirm intraspinal findings. It is
also clear from the document P-30, a letter addressed by Doctor D. Raja Reddy,
Director of NIMS to the Director General, Military Hospital, Paraplegia Special
Care Centre, Poona that "the patient Mr. Prashant had plexiform
Neurofibroma of the Posterior Mediastinum with intra spinal extension.
Following Mediastinal tumour excision he developed Paraplegia. I thought he
should benefit from the intensive Physiotherapy care that your institute offers
for such patients". Undoubtedly, it is clear from this document it
transpires that after the removal of the tumour, the intra spinal extension had
been revealed but the complainant's seems to be correct in saying that had a
MRI or Myclography been performed, the intraspinal extension could well have
been revealed at the pre-operative stage which could have led to the
intervention of a Neuro Surgeon at the time of removal of the tumour and the
paraplegia perhaps avoided.
14.
Mr.
Tandale has, however, in his written submissions, raised additional pleas,
(which had not been argued by him during the course of the hearing), and has
also referred us to some texts which too had not been referred to by him. He
has submitted that the decision to recommend a thoractomy despite the fact that
FNAC had not disclosed any lesion was only a tentative opinion and not
conclusive and that the final opinion was only made available during the
operation which had revealed the extent of the tumour. The learned counsel has
placed reliance on Chapter 34 titled "Chest Wall Tumours"
in "Glenn's
Thoracic and Cardiovascular Surgery" (Ed. Arthur E. Baue, et al), Sixth
Edition, Volume -II, to submit that needle biopsies could miss a Neurofibroma,
so excisional biopsy (as in this case) should be resorted to. The relevant
passage reads thus:
"Neurofibromas
can occur as an isolated lesion, but usually these tumours are multiple and are
associated with von Recklinahausen's multiple neurofibromatosis. Although most
lesions are benign, malignant degeneration can occur. When new symptoms appear
- an enlarging mass or pain - excision is recommended. Needle biopsy may miss
29 the significant spot, so excisional biopsy should be done. When these
tumours occur near the vertebral body, the presence of a "dumbbell"
tumour with extension into the spinal canal must be documented by CT or MRI
scan. If present, neurological consultation is needed for combined
resection."
(Emphasis supplied)
15.
These
observations do undoubtedly justify an excision biopsy but equally support the
case of the complainant inasmuch that his case too was that had an MRI been
performed, the extent of the tumour and its extension into the spinal cord
would have been revealed. We have, therefore, no hesitation in holding that the
complete investigations prior to the actual operation had not been carried out.
16.
Allied
to this finding is the question as to whether the required consent for the
excision of the tumour had been taken from the complainant or his parents. The
Commission has noted that some discussion between the complainant, his parents
and Dr. Satyanarayana had taken place in the OPD and the possibility of
deferring the operation had been mooted but notwithstanding this discussion,
the complainant had been admitted to hospital on the 19th October, 1990 and 30
operated upon on 23rd October 1990. The Commission has observed that as blood
had been donated by the relatives of the complainant, it was likely that they
had the information that a surgery was planned, as they were educated and
enlightened persons. The Commission has, accordingly, held on the basis of the
evidence of Dr. Satyanarayana "that once the consent for excision biopsy
through thoractomy was given, the consent for a moment (sic) (removal?) of the
mass was implied."
17.
We
see from the cross examination of the complainant that no consent for the
operation had been taken. Moreover, it is significant that even though the
record of the case had been produced before the Commission, it was with some
reluctance and after several specific orders, but the written consent which had
allegedly been taken is not a part of the record. It is equally significant
that in the written submissions which had been filed, a copy of the consent
form of NIMS has been appended but not the actual consent taken from the
complainant. It must, therefore, be held that the withholding of the aforesaid
document raises a presumption against the 31 NIMS and the attending Doctors.
We find that the consent given by the complainant for the excision biopsy
cannot, by inference, be taken as an implied consent for a surgery (save in
exceptional cases), as held by this Court in Samira Kohli vs. Dr. Prabha
Manchanda & Anr. (2008) 2 SCC 1. The two issues which are relevant for our
purpose and raised before the Bench were:
(i) Whether informed
consent of a patient is necessary for surgical procedure involving removal of
reproductive organs? If so, what is the nature of such consent? (ii) When a
patient consults a medical practitioner, whether consent given for diagnostic
surgery can be construed as consent for performing additional or further
surgical procedure - either as conservative treatment or as radical treatment -
without the specific consent for such additional or further surgery? These two
questions were answered in the following terms:
"Consent in the
context of a doctor- patient relationship, means the grant of permission by the
patient for an act to be carried out by the doctor, such as a diagnostic,
surgical or therapeutic procedure. Consent can be implied in some circumstances
from the action of the patient. For example, when a patient 32 enters a
dentist's clinic and sits in the dental chair, his consent is implied for
examination, diagnosis and consultation.
Except where consent
can be clearly and obviously implied, there should be express consent. There
is, however, a significant difference in the nature of express consent of the
patient, known as "real consent" in UK and as "informed
consent" in America.
In UK, the elements
of consent are defined with reference to the patient and a consent is
considered to be valid and "real" when (i) the patient gives it
voluntarily without any coercion; (ii) the patient has the capacity and
competence to give consent; and (iii) the patient has the minimum of adequate
level of information about the nature of the procedure to which he is
consenting to. On the other hand, the concept of "informed consent"
developed by American courts, while retaining the basic requirements of
consent, shifts the emphasis on the doctor's duty to disclose the necessary
information to the patient to secure his consent. "Informed consent"
is defined in Taber's Cyclopedic Medical Dictionary thus:
"Consent that is
given by a person after receipt of the following information: the nature and
purpose of the proposed procedure or treatment; the expected outcome and the
likelihood of success;
the risks; the
alternatives to the procedure and supporting information regarding those
alternatives; and the effect of no treatment or procedure, including the effect
on the prognosis and the material risks associated with no treatment. Also
included are 33 instructions concerning what should be done if the procedure
turns out to be harmful or unsuccessful."
The next question is
whether in an action for negligence/battery for performance of an unauthorized
surgical procedure, the doctor can put forth as defence the consent given for a
particular operative procedure, as consent for any additional or further
operative procedures performed in the interests of the patient. In Murrary v. McMurchy
(1949) 2 DLR 442: (1949)1 WWR 989, the Supreme Court of British Columbia,
Canada, was considering a claim for battery by a patient who underwent a
caesarean section. During the course of caesarean section, the doctor found
fibroid tumours in the patient's uterus. Being of the view that such tumours
would be a danger in case of future pregnancy, he performed a sterilization
operation. The Court upheld the claim for damages for battery. It held that sterilization
could not be justified under the principles of necessity, as there was no
immediate threat or danger to the patient's health or life and it would not
have been unreasonable to postpone the operation to secure the patient's
consent.
The fact that the
doctor found it convenient to perform the sterilization operation without
consent as the patient was already under general anaesthesia, was held to be
not a valid defence. A somewhat similar view was expressed by the Court of
Appeal in England in F., In re, (1933) 3DLR 260: 60 CCC 136. It was held that
the additional or further treatment 34 which can be given (outside the
consented procedure) should be confined to only such treatment as is necessary
to meet the emergency, and as such needs to be carried out at once and before
the patient is likely to be in a position to make a decision for himself. Lord
Goff observed (All ER p.566g-j) "...Where, for example, a surgeon performs
an operation without his consent on a patient temporarily rendered unconscious
in an accident, he should do no more than is reasonably required, in the best
interests of the patient, before he recovers consciousness. I can see no
practical difficulty arising from this requirement, which derives from the fact
that the patient is expected before long to regain consciousness and can then
be consulted about longer term measures."
18.
The
Court also considered the possibility that had the patient been conscious
during surgery and in a position to give his consent, he might have done so to
avoid a second surgery but observed that this was a non-issue as the patient's
right to decide whether he should undergo surgery was inviolable.
This is what the
Court had to say:
"It is quite
possible that had the patient been conscious, and informed about the need for
the additional procedure, the patient might have agreed to it. It may be that
the additional procedure is beneficial and in the interests of the patient. It
may be that postponement of the additional procedure (say removal of an organ)
may require another surgery, whereas removal of the affected organ during the
initial diagnostic or exploratory surgery, would save the patient from the pain
and cost of a second operation. Howsoever practical or convenient the reasons may
be, they are not relevant. What is relevant and of importance is the inviolable
nature of the patient's right in regard to his body and his right to decide
whether he should undergo the particular treatment or surgery or not. Therefore
at the risk of repetition, we may add that unless the unauthorized additional
or further procedure is necessary in order to save the life or preserve the
health of the patient and it would be unreasonable (as contrasted from being
merely inconvenient) to delay the further procedure until the patient regains
consciousness and takes a decision, a doctor cannot perform such procedure
without the consent of the patient."
19.
It
is clear from the evidence in the case before us that there was no urgency in
the matter as the record shows that discussions for the deferment of the
proposed excision biopsy had taken place between the complainant, his parents
and Dr. Satyanarayana in the OPD and the consent for the procedure had been
obtained. Also in the light of the observations in the cited cases, any implied
consent for the excision of the tumour cannot be inferred.
20.
The
broad principles under which medical negligence as a tort have to be evaluated,
have been laid down in the celebrated case of Jacob Mathew vs. State of Punjab
& Anr. (2005) 6 SCC 1. In this judgment, it has been observed that the
complexity of the human body, and the uncertainty involved in medical
procedures is of such great magnitude that it is impossible for a doctor to
guarantee a successful result and the only assurance that he "can give or
can be understood to have given by implication is that he is possessed of the
requisite skill in that branch of profession which he is practicing and while
undertaking the performance of the task entrusted to him he would be exercising
his skill with reasonable competence." The Bench also approved the opinion
of McNair,J in (Bolam v. Friern Hospital Management Committee (1957) 2 All ER
118 (QBD), in the following words:
37 "[W]here you
get a situation which involves the use of some special skill or competence,
then the test as to whether there has been negligence because 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." (Charlesworth & Percy, ibid., para 8.02) The Bench
finally concluded its opinion as follows:
"We sum up our
conclusions as under:
(1) Negligence is the
breach of a duty caused by omission to do something which a reasonable man
guided by those considerations which ordinarily regulate the conduct of human
affairs would do, or doing something which a prudent and reasonable man would
not do. The definition of negligence as given in Law of Torts, Ratanlal &
Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good.
Negligence becomes actionable on account of injury resulting from the act or
omission amounting to negligence attributable to the person sued. The essential
components of negligence are three:
"duty",
"breach" and "resulting damage".
38 (2) Negligence in
the context of the medical profession necessarily calls for a treatment with a
difference. To infer rashness or negligence on the part of a professional, in
particular a doctor, additional considerations apply. A case of occupational
negligence is different from one of professional negligence. A simple lack of
care, an error of judgment or an accident, is not proof of negligence on the
part of a medical professional. So long as a doctor follows a practice
acceptable to the medical profession of that day, he cannot be held liable for
negligence merely because a better alternative course or method of treatment
was also available or simply because a more skilled doctor would not have
chosen to follow or resort to that practice or procedure which the accused
followed. When it comes to the failure of taking precautions, what has to be
seen is whether those precautions were taken which the ordinary experience of
men has found to be sufficient; a failure to use special or extraordinary
precautions which might have prevented the particular happening cannot be the
standard for judging the alleged negligence. So also, the standard of care,
while assessing the practice as adopted, is judged in the light of knowledge
available at the time of the incident, and not at the date of trial. Similarly,
when the charge of negligence arises out of failure to use some particular
equipment, the charge would fail if the 39 equipment was not generally
available at that particular time (that is, the time of the incident) at which
it is suggested it should have been used.
(3) A professional
may be held liable for negligence on one of the two findings:
either he was not
possessed of the requisite skill which he professed to have possessed, or, he
did not exercise, with reasonable competence in the given case, the skill which
he did possess. The standard to be applied for judging, whether the person
charged has been negligent or not, would be that of an ordinary competent
person exercising ordinary skill in that profession. It is not possible for
every professional to possess the highest level of expertise or skills in that
branch which he practices. A highly skilled professional may be possessed of
better qualities, but that cannot be made the basis or the yardstick for
judging the performance of the professional proceeded against on indictment of
negligence.
(4) The test for
determining medical negligence as laid down in Bolam case (1957) 2 All ER 118
(QBD)holds good in its applicability in India.
21.
The
observations in the aforesaid case were reiterated in State of Punjab vs. Shiv
Ram & Ors. (2005) 7 SCC 1.
In this case, a suit
had been filed against State of Punjab and a lady doctor, a State Government
employee, claiming damages for a failed tubectomy as the woman conceived and
gave birth to a child notwithstanding the procedure. The suit was decreed
against the State Government. This is what this Court had to say while allowing
the appeal:
"The plaintiffs
have not alleged that the lady surgeon who performed the sterilization
operation was not competent to perform the surgery and yet ventured into doing
it. It is neither the case of the plaintiffs, nor has any finding been arrived
at by any of the courts below that the lady surgeon was negligent in performing
the surgery. The present one is not a case where the surgeon who performed the
surgery has committed breach of any duty cast on her as a surgeon. The surgery
was performed by a technique known and recognized by medical science. It is a
pure and simple case of sterilization operation having failed though duly performed.
The learned Additional Advocate General has also very fairly not disputed the
vicarious liability of the State, if only its employee doctor is found to have
performed the 41 surgery negligently and if the unwanted pregnancy thereafter
is attributable to such negligent act or omission on the part of the employee
doctor of the State."
22.
The
Court further held forth a caution that if doctors were frequently called upon
to answer charges having criminal and civil consequences, it would frustrate
and render ineffective the functioning of the medical profession as a whole and
if the medical profession was "hemmed by threat of action, criminal and
civil, the consequence will be a loss to the patients........ and no doctor
would take a risk, a justifiable risk in the circumstances of a given case, and
try to save his patient from a complicated disease or in the face of an
unexpected problem that confronts him during the treatment or the
surgery."
23.
The
evidence in the present case has to be evaluated in the background of the above
observations. It is clear that a mere misjudgment or error in medical treatment
by itself would not be decisive of negligence towards the patient and the
knowledge of medical practice and procedure available at the time of the operation
and not at the date of trial, is 42 relevant. It is also evident that a doctor
rendering treatment to a patient is expected to have reasonable competence in
his field. (Bolam's principle). It is the case of the complainant that it is
the lack of care and caution and the neglect on the part of the attending
doctors, and Dr. Satyanarayana in particular, to make the necessary
pre-operative investigations that had led to the complications at the time of
the operation and thereafter.
24.
We
now come to the allegation with regard to the negligence shown at the stage of
the operation itself. The record shows that the tumour 4x4 cm in dimension was
located on the left upper chest side of the thorax and there had been erosion
of the 2nd, 3rd and 4th ribs. The discharge record pertaining to the operation
also reveals that there was a one cm size opening in the vertebral body
exposing the spinal cord at the thorax level and that the tumour had been
excised along with the 4th rib. The record also shows that the tumour was not
only confined to the thorax but had extended into the posterior mediastinal
column as well, showing that it had some connection with the spinal cord. It is
in this background 43 that the complainant has argued that whereas a cardio -
thoracic Surgeon was undoubtedly competent to perform the surgery for the
excision of the tumour but as the tumour had extended into the posterior
mediastinal column containing inter-costal blood vessels and nerves, the
involvement of a Neuro Surgeon was essential and as this procedure had not been
adopted a case of negligence or indifference on the part of the attending
doctors had been proved. It has also been highlighted time and again that the
information that the 2nd, 3rd and in particular 4th ribs had eroded was
available with the doctors long before the operation and thus the fact the
tumour had extended into the mediastinal column was a clear possibility. In
answer to the aforesaid allegations, it has been submitted that as the CT scan
and X-ray had shown a lesion in the thorax with the erosion of the ribs and as
no involvement of the vertebral column had been revealed, and further that the
fact the tumour had penetrated into the vertebral body had been noticed only
after the tumour mass had been excised, the involvement of a neuro surgeon was
not called for. In the written submissions filed on behalf of Dr.
44 Satyanarayana, it
has been pointed out that when it was noticed that there was some involvement
of the vertebral body, Professor I Dinaker a Consultant Neuro Surgeon had been
requested to join the operating team in the operation theatre and on
examination he had found that no further intervention as per his specialty was
required.
25.
We
have considered the opposing submissions very carefully. It appears to us that
Dr. Satyanarayana's evidence shows a great measure of negligence in the
operation. In his affidavit, he has stated that if it had been found that the
tumour had penetrated into the spinal column the patient would have been
referred to a Neuro Surgeon as well. To our mind, this statement itself when
read with the incomplete diagnostic procedures that had been adopted, show that
had the necessary tests been performed, the fact that the tumour had penetrated
into the vertebral column, would have been revealed. Dr. Satyanarayana further
goes on to say that it was not a case of interference with the spinal cord and
in justification he has stated that after operation of the tumour had been
removed Professor I. Dinaker, had been called in and 45 on examination he had
noticed only a bony erosion and no involvement of the spinal cord. We are of
the opinion that this half-baked diagnosis at the stage of the operation only
after the excision of the tumour does no credit to the Doctor.
It is also significant
that the operation record dated 23rd October, 1990 shows that the tumour mass
had extended into the inter-vertebral foramen and that there was an opening one
cm in size in the vertebral body exposing the spinal cord. In this connection
the complainant has placed reliance on an Article titled "Central
Neurogenic Tumours of the Thoracis Region" by Farid M. Shamji, M.D.,
FRCSC, Thomas R. Todd, MD, FRCSC, Eric Vallieres, MDFRCSC, Harold J. Sachs, MD
FRCSC, Brien G. Benoit, MD FRCSC. wherein it has been observed as under:
"Thoracic
neurogenic tumours differentiate from the neuroepithelium that originates in
the neural crest during the development of the peripheral nervous system. Most
of the peripheral nervous tissue in the thorox is situated in the posterior
mediastinum in the paravertebral gutters. Consequently, this is the commonest
location for the majority of intrathoracic neurogenic tumours - at the site of
the sympathetic chain and in the path of the spinal and intercostals nerves.
The histologic type
of neurogenic tumour is less important to the thoracic surgeon than the
anatomical relationship of the tumour to other posterior mediastinal structures
and, in particular, to the intervertebral foramen. The possibility of
intraspinal extension through the foramina is the single most important factor
affecting surgical intervention.
We present our
experience, albeit small, because it outlines the importance of thorough
anatomic assessment of these tumours. It stresses the involvement of the
neurosurgeon in the assessment, decision making and surgical
intervention."
and "Patients
with neurogenic tumours arising in the thorax should undergo early surgical
exploration and complete resection of the tumour if possible.
Arising within the
confines of the narrow thoracic spinal canal or the intervertebral foramen,
these lesions may become symptomatic quite early on, with spinal- cord
compression or segmental radicular pain caused by early spinal-nerve
involvement. Neurosurgical consultation is a prerequisite for safe removal of
these tumours when the intervertebral foramina are traversed. Fortunately, most
intrathoracic neurogenic tumours are small, benign, unilateral,extrapleural.
The diagnosis can
often be established readily with current diagnostic imaging techniques, and
the tumour can be removed safely with adequate exposure through a
posterolateral thoracotomy.
When the thoracic
surgeon suspects preoperatively that the tumour has an intraspinal extension,
the neurosurgeon should be consulted before exploration is considered. Indeed,
in all patients who have a lesion adjacent to the inter- vertebral foramen, a
neurosurgical consultation should be obtained. In these circumstances, the
patient's spinal cord is at considerable risk of permanent damage from
ill-advised surgical manoeuvres. The procedures that should not be attempted without
intraoperative assistance of a neurosurgeon include enlarging the
intervertebral foramen (foraminectomy), application of undue traction on the
tumour during dissection, tamponading the bleeding vessels in the foramen when
hemorrhage is difficult to control and partial removal of the tumour.
Consequently, it is of utmost importance that all neurogenic tumours arising in
the posterior location be studied very carefully with special reference to the
intervertebral foramen and possible intraspinal extension. The value of
computed tomography and magnetic resonance imaging has been well established.
Prior knowledge of a dumbbell tumour or of a predominantly intrathoracic tumour
with foraminal extension dictates a combined thoracic- 48 neurosurgical
procedure. The approach consists of a standard posteroloteral thoracotomy and
laminectomy. Dural defects should be closed meticulously to prevent the
development of a subarachnoid-pleural fistula and possible meningitis.
Controversy exists
over the urgency of excising neurogenic tumours in the posterior mediastinum.
Those that are lateral to the costovertebral gutter may be managed conservately
with surgery reserved for when enlargement occurs.
For the more
centrally located tumours such as those presented here, we advise surgical
intervention for the following reasons:
An increase in the
size of the tumour mass, which may increase the risk or difficulty of surgery
from osseous erosion or intraspinal extension.
The possibility of
malignancy must be taken into account, realizing that most neurogenic tumours
are benign (overall rate of malignancy ranging from 3% to 19%). Furthermore,
the possibility of malignant degeneration should be borne in mind, and it is
difficult to find exact data on this point in the literature.
The risk of permanent
damage to the spinal cord from compression due to intraspinal tumour or
intraspinal extension from an intrathoracic lesion.
Nearly 10% of
neurogenic tumours of the posterior mediastinum extend into the spinal canal
through the intervetebral foramen; neurologic sumptoms indicating intraspinal
extension occur in about 60% of dumbbell tumours, therefore the dual location
should always be considered and defined preoperatively.
Conclusions Careful
evaluation and surgical resection of benign neurogenic tumours of the thorax
result in a low morbidity and excellent long-term results.
Collaboration between
thoracic surgeons and neurosurgeons is recommended. For malignant lesions, if
resection is incomplete, further treatment in the form of radiotherapy or
chemotherapy should be instituted."
Likewise, in another
Article "The Principles of Surgical Management in Dumbbell Tumours"
by Yuksel M, et al, it has been stated:- "METHODS: In all patients that
have been operated in our clinic during 1992-93, we preferred one stage removal
described by Akwari that consists of posterior laminectomy by neurosurgical
team to free the tumour within the spinal cord followed by a posterolateral
thoracotomy and excision of the tumour by thoracic surgeons in the same
setting.
RESULTS: All three
patients are alive and 50 free of symptoms after 23, 16 and 13 months
respectively. According to the pathological examinations of the specimens in
the three patients, the exact diagnosis were reported as neurofibroma,
paraganglioma and pheochromocytoma respectively. CONCLUSIONS: In recent
reports, a combined surgical approach is recommended for dumb-bell neurogenic
tumours in posterior mediastinum. We also recommend a combined and one stage
removal of dumb-bell neurogenic tumours if possible. A team-work of thoracic
and neurosurgeon will minimize the morbidity and mortality after the surgical
procedure, as well as giving the opportunity to remove the tumour totally in
one session,"
Likewise in
"Dumbbell neurogenic tumours of the mediastinum, Diagnosis and
Management" by Akwari OE, ct al, it has been stated:- "Among 706
collected cases of mediastinal neurogenic tumous were 69 patients (9.8%) with
extension through an intervertebral foramen, so that the composite neoplastic
mass was dumbbell-shaped. Although only 10% f these dumbbell tumours were
malignant, the majority of the patients presented with neurologic symptoms of
spinal cord compression. In about 40% of reported cases, the intraspinal
component, although present, was not clinically apparent. Such cases of
asymptomatic intraspinal extension should be suspected when special
roentgenologic 51 views of the spine demonstrate erosion of the vertebral
pedicle or enlargement of the intervertebral foramen adjancent to the posterior
mediastinal mass. Workup of these patients should include myelographic studies
to determine whether a dumbbell tumour is indeed present; if it is, surgery
should be carried out by a team of thoracic surgeons and neurosurgeons in a one
stage combined resection of both the intraspinal and the mediastinal component
of the tumour.
With early diagnosis
and surgical intervention, long term survival is the rule. When the patient is
in the pediatric age bracket, an orthopedic surgeon should be included on the
team to help minimize subsequent skeletal growth deformity."
In "Combined
Laminectomy and Thoracoscopic Resection of Dumbell Neurofibrema: Technical Case
Report" by Citow is, et al, the authors have observed:- "We describe
combined laminectomy and thoracoscopic surgery for removal of a dumbbell
thoracic spinal tumour to demonstrate the feasibility of such an approach.
CLINICAL PRESENTATION:
We present the case
of a 29-year-old man who developed chest pain and spinal cord compression from
a thoracic dumbbell neurofibroma. TECHNIQUE: Surgical approaches for benign
nerve sheath tumours that extend from the spinal cord into the thoracic cavity
include combined 52 laminectomy and thoracotomy either in one or two stages,
or a lateral extracavitary approach involving laminectomy, facetectomy, and rib
resection in a single stage. We performed a combination laminectomy and
thoracoscopic tumour resection in a single stage with good results."
A reading of all
three texts pointedly refer to the fact that in a case of a tumour in the
posterior mediastinal, the possibility of the extension of the tumour into the
foramen and the vertebral column must be kept in mind and a neuro surgeon must
be associated with the diagnosis and the actual operation.
26.
Mr.
Tandale, the learned counsel for the NIMS has, however, raised certain issues
before us in his written submissions. He has pointed out that a FNAC performed
on a neurofibroma was often indeterminate and an excision biopsy was called for
and this is precisely the procedure that had planned on the crucial day. In
this connection, he has relied on several texts including Glenn's Thoracic and
Cardiovascular Surgery, Sixth Edition, Volume II (supra) and Harrison's General
Principles of Internal Medicine 11th Edition, 53 Chapter 214 titled Diseases
of the Pleura, Mediastinum and Diaphragm, at pages 1127 and 1128 and in
particular the following passages :
"Neurogenic
tumors are the most common primary mediastinal neoplasms and are found almost
exclusively in the posterior mediatenum near the paravertebral gutter.
The majority of these
tumours are benign, Neurofibromas, Schwanomas, ganglionomas are the commonest
tumors see,(page 1128).
The Mediastinum
occupies the central portion of the chest and is anatomically defined by the
thoracic inlet above the diaphragm below, the mediastinal pleura laterally, the
paravertebral gutter posteriorly, and the sternum aneteiorly. The Mediastinum
is divided into four compartments for descriptive purposes (fig.214-2). The
superior Mediastinum is bounded above by the plane of the first rib and below
by an imaginary line drawn anterioposteriorly from the sternal angle to the
lower edge of the fourth thoracic vertebra. It contains the trachea, upper
esophagus, thymus gland, thoracic duct, great veins, arch of the aorta and its
branches, and the phrenic, vagus, and left recurrent laryngeal nerves. Below
the superior Mediastinum lie three further compartments. The anterior
Mediastinum contains fibroareolar tissue and lymph nodes, but no major
structures. The middle Mediastinum contains the heart, ascending aorta, great
venis, pulmonary artery, and pleuric nerves. The posterior Mediastinum contains
the esophagus, thoracic duct, descending aorta, symphathetic chain, and
intercostals and vagal nerves(Page 1127).
27.
He
has also referred us to the cross examination of Dr. A.S. Hegde, the expert
witness examined at the instance of the complainant that there was nothing
wrong in the procedure adopted by Dr. Satyanarayana even after he had seen the
tumour in the chest cavity. We are of the opinion that the very portions that
have been relied upon by Mr. Tandale in fact support the argument that has been
raised by the complainant that the Neurofibromas which are Neurogenic tumours
were to be found exclusively in the posterior mediastinal near the
paravertebral gutter, and that the tumor had extended into the vertebral column
was therefore a possibility. We also see from the statement of Dr. A.S. Hegde
that Ischemic Myleopathy which had resulted in Paraplegia was on account of the
cutting off of the blood supply to the spinal cord as a result of the operation
to remove the tumor.
The cross-examination
of Dr. A.S. Hegde, cannot therefore, be looked at in isolation. It must,
therefore, be concluded that the attending doctors were seriously remiss in not
associating a neuro-surgeon at the pre-operative as well as at the stage of the
operation.
28.
It
has also been submitted that in the face of complicated questions of fact
involving medical procedures, it was inappropriate for the Commission to have
entered into the dispute and that the matter ought to have been relegated to
the civil court. Mr. Tandale in his written submissions has also raised some
pleas and levelled allegations which are wholly uncalled for. We reproduce some
of these herein under:- "As mentioned in the list of events above, after
the cross examination of the complainant and his father on 23rd and 24th May
1994, the affidavits of examination in chief of Dr.P.V. Satyanarayana and Dr.
U.N.Das were filed on 22.6.1994 about 7 years later, on 16.8.94, the National
Commission directed the complainant to file an application for examination of
expert medical witness. Thereafter Dr.A.S. Hegde was examined as PW3 on 23.12.94.
This sequence would
be sufficient to indicate that the National Commission had already reached a
decision to award compensation to the complainant; hence 56 it intended to
secure support to its already reached conclusions.
Such an approach is
unheard of in judicial adjudications. The complainant was represented by a
designated Senior Advocate as seen from the title page of the judgment under
appeal. The complainant therefore did not need any legal advice from the
Commission. The institute was denied equal and even treatment.
The cross examination
of Dr.P.V. Satyanarayana and Dr.U.N.Das was recorded on 20.05.1996, and
thereafter on 25.4.1997, the entire case record of diagnostic, medial and
surgical procedures pertaining to the complainant was filed in the National
Commission.
The arguments were
heard on 4.9.1998 and written submissions were filed by the Institute on
5.10.1998.
While appreciating
the evidence of Dr. P.V.Satyanarayana and Dr.U.N.Das, the National Commission
has referred to (i) Gray's Anatomy, Angiology and Neurology, (ii) Text Book of
General Thoracic Surgery by Thomas W. Shields 3rd Edition page 1106, (iii)
Annals of Thoracic Surgery Vol. 1995 (59) Division of Thoracic &
Cardio-Vascular Surgery &
Short Trauma Centre
University of Maryland, (iv) Complications of Intra Thoracic Surgery, and (v)
King & Smith:
Contemporary Imaging
Techniques (632), (750-753).
57 The National
Commission had taken recourse to picking up sentences from the examination in
chief as well as of the cross examinations of Dr. P.V. Satyanarayan and
Dr.U.N.Das, and compared those fragmented portions with the passages from the
above text books and recorded findings of negligence."
29.
These
submissions have absolutely no merit. This (2002) 6 SCC 635 while dealing with
the argument that the matter should be relegated to the civil court observed:
"In the present
case, there is inordinate delay of about nine years in disposal of complaint.
However, if this contention raised by the learned counsel for the appellants is
accepted, apart from the fact that it would be unjust, the whole purpose and
object of enacting the Consumer Protection Act, 1986 (hereinafter referred to
as "the Act") would be frustrated. One of the main objects of the Act
is to provide speedy and simple redressal to consumer disputes and for that quasi-judicial
machinery is sought to be set up at the district, State and Central level.
These quasi-judicial bodies are required to observe the principles of natural
justice and have been empowered to give relief of a specific nature and to
award, wherever appropriate, compensation to consumers.
Penalties for
non-compliance with the orders given by the quasi-judicial bodies have also
been provided. The object and purpose of enacting the Act is to render simple,
inexpensive and speedy remedy to the consumers with complaints against
defective goods and deficient services and the benevolent piece of legislation
intended to protect a large body of consumers from exploitation would be
defeated. Prior to the Act, consumers were required to approach the civil court
for securing justice for the wrong done to them and it is a known fact that
decision in a suit takes years. Under the Act, consumers are provided with an
alternative, efficacious and speedy remedy. As such, the Consumer Forum is an
alternative forum established under the Act to discharge the functions of a
civil court. Therefore, delay in disposal of the complaint would not be a ground
for rejecting the complaint and directing the complainant to approach the civil
court."
30.
Mr.
Tandale has, however, relied on Indian Medical Assn. vs. V.P.Shantha & Ors.
(1995) 6 SCC 651, and in particular on the following observations:
It has been urged
that proceedings involving negligence in the matter of rendering services by a
medical practitioner would raise complicated questions requiring evidence of
experts to be recorded and that the procedure which is followed for
determination of consumer 59 disputes under the Act is summary in nature
involving trial on the basis of affidavits and is not suitable for
determination of complicated questions.
It is no doubt true
that sometimes complicated questions requiring recording of evidence of experts
may arise in a complaint about deficiency in service based on the ground of
negligence in rendering medical services by a medical practitioner; but this
would not be so in all complaints about deficiency in rendering services by a
medical practitioner. There may be cases which do not raise such complicated
questions and the deficiency in service may be due to obvious faults which can
be easily established such as removal of the wrong limb or the performance of
an operation on the wrong patient or giving injection of a drug to which the
patient is allergic without looking into the out patient card containing the
warning (as in Chinkeow v. Government of Malaysia (1967) 1 WLR 813 P.C.) or use
of wrong gas during the course of an anesthetic or leaving inside the patient
swabs or other items of operating equipment after surgery. One often reads
about such incidents in the newspapers. The issues arising in the complaints in
such cases can be speedily disposed of by the procedure that is being followed
by the Consumer Disputes Redressal Agencies and there is no reason why
complaints regarding deficiency in service in such cases should not be
adjudicated by the Agencies under the Act. In complaints involving complicated
issues requiring recording of evidence of 60 experts, the complainant can be
asked to approach the Civil Court for appropriate relief. Section 3 of the Act
which prescribes that the provisions of the Act shall be in addition to and not
in derogation of the provisions of any other law for the time being in force,
preserves the right of the consumer to approach the Civil Court for necessary
relief. We are, therefore, unable to hold that on the ground of composition of
the Consumer Disputes Redressal Agencies or on the ground of the procedure
which is followed by the said Agencies for determining the issues arising
before them, the service rendered by the medical practitioners arc not intended
to be included in the expression 'service' as defined in Section 2(1)(o) of the
Act.
31.
It
has been argued that the present case was one which ought to be relegated to
the civil court in view of the above observations. We find that a bare reading
of the judgment in J.J. Merchant's case itself gives an answer to the question
posed. It is significant that the operation had been performed on the 23rd
October, 1990 and the complaint filed on 9th April, 1993 and after arguments
had been concluded on 4th September 1998 the decision had been rendered on 16th
February 1999. As a matter of fact, it appears from the record 61 that NIMS
did not, at any stage, seriously challenge the propriety of the Commission
going into the dispute and even consented to the recording of the evidence by
the State Commission. It is even more significant that in an affidavit of June
1994 filed on behalf of NIMS, a request had been made that a specialist from
AIIMS, New Delhi be called so that the question of negligence, if any, could be
properly investigated, but the deponent further stated that he had no objection
if the Commission did not propose to follow this procedure. A similar option to
name some expert witness or witnesses was given to the complainant who,
accordingly, on an application filed on 27th August, 1994 proposed the name of
Dr. A.S. Hegde who was examined as a witness. The record also reveals that
after arguments had been concluded on 4th September 1998 and two weeks' time
had been given to the parties to file written submissions, that an application
had been made on 5th October 1998 to summon an expert witness from the AIIMS. This
application had been declined. We are, therefore, of the opinion that the
remarks about the procedure followed by the National Commission which have been
quoted 62 above, are to say the least uncharitable and uncalled for. The
judgment in Indian Medical Association's case (supra), cited by Mr. Tandale,
primarily explains the concept of `service' as defined under the Customer
Protection Act and on the contrary, some of the observations made therein
support the complainant's case all the way.
32.
We
are also cognizant of the fact that 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 the 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 diligence.
In Savita Garg (Smt.)vs.
Director, National
Heart Institute (2004) 8 SCC 56 it has been observed as under:
"Once an
allegation is made that the patient was admitted in a particular hospital and
evidence is produced to satisfy that he died because of lack of proper care and
negligence, then the burden lies on the hospital to justify that there was no
negligence on the part of the treating doctor or hospital. Therefore, in any
case, the hospital is in a better 63 position to disclose what care was taken
or what medicine was administered to the patient. It is the duty of the
hospital to satisfy that there was no lack of care or diligence. The hospitals
are institutions, people expect better and efficient service, if the hospital
fails to discharge their duties through their doctors, being employed on job
basis or employed on contract basis, it is the hospital which has to justify and
not impleading a particular doctor will not absolve the hospital of its
responsibilities."
33.
In
the light of the above facts, we have no option but to hold that the attending
doctors were seriously remiss in the conduct of the operation and it was on account
of this negligence that the Paraplegia had set in. We accordingly confirm the
findings of the Commission on this score as well.
34.
The
Tribunal has also found that the complainant had to undergo great agony and
inconvenience for lack of proper post operative medical care. We, however, see
that no specific case has been spelt out on this score and only general
observations, stemming from the complications arising out of an operation gone
wrong, have been made. We need to say nothing more on this aspect.
35.
The
question of compensation which has been hotly debated and discussed during the
course of arguments, now needs to be dealt with. Before the Commission, the
complainant assessed his claim at a little over Rs.4.61 cores. As already
observed above, the Commission has thought it fit to award compensation under
the following heads:
(a) Rs.8 lakh
(expected to yield a monthly interest of about Rs.8,000/-] towards prospective
charges for physiotherapy, nursing and associated expenses;
(b) Rs.4 lakh (
likewise expected to yield a monthly interest of about Rs.4,000/-) for
supplementing the complainant's future earnings, and (c) Rs.2 lakh as
compensation for mental agony, physical suffering and pain and also for
physiotherapy, nursing and associated expenses already incurred by him.
36.
In
addition, a sum of Rs.1.5 lakh has been given as compensation to the
complainant's parents for their agony, stress and depression and the future
care they may have to bestow on their son. A total sum of Rs.15.5 lakh has, accordingly
been determined payable by NIMS, the appellant before us.
37.
The
complainant, who has argued his own case, has submitted written submissions now
claiming about 7.50 Crores as compensation under various heads. He has, in addition
sought a direction that a further sum of Rs. 2 crores be set aside to be used
by him should some developments beneficial to him in the medical field take
place. Some of the claims are untenable and we have no hesitation in rejecting
them. We, however, find that the claim with respect to some of the other items
need to be allowed or enhanced in view of the peculiar facts of the case.
Concededly, the complainant is a highly qualified individual and is gainfully
employed as an IT Engineer and as per his statement earning a sum of Rs.28 Lakh
per annum though he is, as of today, about 40 years of age. The very nature of
his work requires him to travel to different locations but as he is confined to
a wheel chair he is unable to do so on his own. His need for a driver cum
attendant is, therefore, made out. The complainant has worked out the
compensation under this head presuming his working life to be 66 upto the age
of 65 years. We feel that a period of 30 years from the date of the Award of
the Commission i.e. 16 th February, 1999, rounded off to Ist March, 1999, would
be a reasonable length of time. A sum of Rs.2,000/- per month for a period of
30 years (rounded off from 1st of March 1999) needs to be capitalized. We,
accordingly, award a sum of Rs.7.2 Lakh under this head. The complainant has
also sought a sum of Rs.49,05,800/- towards nursing care etc. as he is unable
to perform even his daily ablutions without assistance. He has computed this
figure on the basis of the salary of a Nurse at Rs. 4375/-per month for 600
months. We are of the opinion that the amount as claimed is excessive. We, thus
grant Rs.4,000/- per month to the appellant for a period of 30 years making a
total sum of Rs.14,40,000/-. The complainant has further sought a sum of Rs.46
Lakhs towards physiotherapy etc. at the rate of Rs.4,000/- per month. We reduce
the claim from Rs.4,000/- to Rs.3,000/- per month and award this amount for a
period of 30 years making a total sum of Rs.10,80,000/- At this stage, it may
be pointed out that some of the medical expenses that had been incurred by the
complainant have 67 already been defrayed by the employer of the complainant's
father and we are, therefore, disinclined to grant any compensation for the
medical expenses already incurred.
However, keeping in
view the need for continuous medical aid which would involve expensive
medicines and other material, and the loss towards future earnings etc., we
direct a lump sum payment of Rs.25/-lakhs under each of these two heads making
a total of Rs.50 lakhs. In addition, we direct a payment of Rs.10 lakh towards
the pain and suffering that the appellant has undergone. The total amount thus
computed would work out to Rs.1,00,05,000 (Rs.1 crore 5 thousand) which is
rounded off to Rs. One Crore plus interest at 6% from Ist March, 1999 to the
date of payment, giving due credit for any compensation which might have
already been paid.
38.
The
complainant has also claimed a sum of Rs.2 crore to be put in deposit to be
utilized by him in case some developments in the medical field make it possible
for him to undergo further treatment so as to improve his quality of life.
This claim is
unjustified and hypothetical and is declined.
39.
We
must emphasize that the Court has to strike a balance between the inflated and
unreasonable demands of a victim and the equally untenable claim of the
opposite party saying that nothing is payable. Sympathy for the victim does
not, and should not, come in the way of making a correct assessment, but if a
case is made out, the Court must not be chary of awarding adequate
compensation. The "adequate compensation" that we speak of, must to
some extent, be a rule of the thumb measure, and as a balance has to be struck,
it would be difficult to satisfy all the parties concerned. It must also be
borne in mind that life has its pitfalls and is not smooth sailing all along
the way (as a claimant would have us believe) as the hiccups that invariably
come about cannot be visualized.
Life it is said is
akin to a ride on a roller coaster where a meteoric rise is often followed by
an equally spectacular fall, and the distance between the two (as in this very
case) is a minute or a yard. At the same time we often find that a person
injured in an accident leaves his family in greater distress, vis- `-vis a
family in a case of death. In the latter case, the initial shock gives way to a
feeling of resignation and acceptance, and 69 in time, compels the family to
move on. The case of an injured and disabled person is, however, more pitiable and
the feeling of hurt, helplessness, despair and often destitution enures every
day. The support that is needed by a severely handicapped person comes at an
enormous price, physical, financial and emotional, not only on the victim but
even more so on his family and attendants and the stress saps their energy and
destroys their equanimity. We can also visualize the anxiety of the complainant
and his parents for the future after the latter, as must all of us, inevitably
fade away. We, have, therefore computed the compensation keeping in mind that
his brilliant career has been cut short and there is, as of now, no possibility
of improvement in his condition, the compensation will ensure a steady and
reasonable income to him for a time when he is unable to earn for himself.
40.
Mr.
Tandale, the learned counsel for the respondent has, further, submitted that
the proper method for determining compensation would be the multiplier method.
We find absolutely no merit in this plea. The kind of damage that the complainant
has suffered, the expenditure that he has incurred 70 and is likely to incur
in the future and the possibility that his rise in his chosen field would now
be restricted, are matters which cannot be taken care of under the multiplier
method.
41.
Civil
appeal No.3126 of 2000 is allowed in the above term with costs of Rs.50,000/-.
It is also clarified that the complainant parents would be entitled to the sum
awarded to them by the Commission. CA No.4119 of 1999 is dismissed.
42.
Before
we end, a word of appreciation for the complainant who, assisted by his father,
had argued his matter. We must record that though a sense of deep injury was
discernible throughout his protracted submissions made while confined to a
wheel-chair, he remained unruffled and with behaved quiet dignity, pleaded his
case bereft of any rancour or invective for those who, in his perception, had
harmed him.
43.
As
the complainant is severely handicapped and has appeared in person, we direct
that a copy of this judgment be sent to his address, free of cost, under
registered cover.
...................................J.
(B.N. AGRAWAL)
..................................J.
(HARJIT SINGH BEDI)
..................................J.
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