"The Neurosurgeon was saved from Rs.1 Crore Complaint as he adopted the Standard Practice" Adv. ROHiT ERANDE ©

"The Neurosurgeon was saved from Rs.1 Crore Complaint as he adopted the Standard Practice" 

Don't blame common people, here the Son of the Patient being a Qualified doctor made allegations against the Treating Doctors !

It is pertinent to note that the patient's Son himself is an Anaesthetist and the Commission was surprised to see the frivolous allegations and it was held that "the complaint was filed, simply to blame for untoward incident to get some compensation. The Complainant aims to turn the wheels of fortune in his favour by demanding such immense damages.

  Adv. ROHiT ERANDE ©

MANJULATA GARG V/s. DR. R. C. MISHRA & 2 ORS, Agra

BEFORE:  

  HON'BLE DR. S.M. KANTIKAR,PRESIDING MEMBER

  HON'BLE MR. BINOY KUMAR,MEMBER

The Judgment Link :

http://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidin=0%2F0%2FCC%2F87%2F2013&dtofhearing=2022-06-21

Order Dated : 21 Jun 2022

Facts in Short : A Case filed for claiming   Rs. 1,02,01,000/- Compensation at the behest of her  Anaesthetist's son 

1. The Matter goes back to 2011.  Smt Manjulata Garg (deceased - Patient) was taken to OP-1 i.e. Dr. R.C. Mishra for complaints of  severe backache. Her husband informed the OP-1 about the Osteoporesis of the patient. After examination, the OP-1 advised to admit her immediately to the Kamayani Hospital (OP-3 - Hospital). 

The allegations : 

2. It was alleged that the physician’s opinion and neurological evaluation was not done and no proper pre-anaesthetic check-up was done by the Anaesthetist. 

3. The MRI dated 11.05.2011, done at Eisha Diagnostic showed collapse of D-10 vertebra and the X-Ray showed traumatic compression of D-11 vertebra and severe Osteoporosis. However, the OP-1 did not bother to recheck/confirm the report by repeat X-ray or MRI.  The patient was operated on 12.05.2011 at 5 PM. The operation took 3 ½ hours to complete.

4. The OP-1 after operation informed the patient’s husband that due to very weak/fragile bones, he did not fasten the screws to its full extent. Thereafter, patient’s condition deteriorated and she remained at the hospital till 21.05.2011. 

5. It was alleged that during the said period about Rs.5,00,000/- was spent on treatment. It was further alleged that on 21.05.2011, the Opposite Parties forcefully discharged the patient, though her condition was critical and serious. Due to such abrupt act of the Opposite Parties, on the same day, the patient was taken to Rashmi Medicare Centre in Agra. She was admitted in ICU under care of Dr. Tarun Singhal. On the next day, it was informed that the patient was febrile and had respiratory distress. She developed hospital acquired respiratory infections with pleural effusion. The patient remained under treatment in Rashmi Medicare Centre till 04.06.2011. The patient was later on diagnosed as tubercular infection (TB) at Indian Spinal Injuries Centre (ISIC) in New Delhi.

6. There was no cure from the backache; it remained persistent at the site of surgery. Therefore, on 04.06.2011, she was admitted to ISIC, where Dr. Deepak Raina examined the patient and told that a wrong surgery has been performed at Agra and since the patient was suffering from Osteoporosis, such kind of surgery was not recommended. He further informed that 8 screws were necessary for fastening, but the OPs-1 & 2 fastened just 4 screws. It was with the intention to gain more money. 

7. At ISIC, X-Ray and CT Scan report revealed Osteoporosis and bilateral pleural collections, which was suggestive of consolidation/collapse of the lungs. It was alleged that on 21.05.2011 the patient was thrown out of the hospital in a critical condition and only the discharge summary was handed to the patient's relative. The Bad Head Ticket (BHT) and detailed bills were issued only after legal notice. 

8. At ISIC on 21.07.2011, the patient was re-operated on the same vertebra with bone cement augmentation under the supervision of Dr. Deepak Raina and Dr. K. Das. On 31.10.2011, post-operative check X-Rays and CT scan confirmed successful operation with intact screws.

9. Thus, it was alleged that it was not a reasonable degree of care/skill, but it was negligence of the Opposite Parties, who have ignored Osteoporosis and performed the operation unscientifically, which led to permanent disability of the patient. Being aggrieved, the patient filed a complaint before this Commission and prayed for Rs. 1,02,01,000/- from the Opposite Parties under different heads. 

Defense:

1. The Opposite Parties in their respective written versions  denied the illusionary highly inflated  claim filed just to extract money illegally from the opposite parties.  The OPs denied the allegations of negligence during treatment of the patient. It was also denied the forceful discharge of the patient from the Kamayani Hospital in critical condition. It was also denied that the operation was performed despite the patient's weak and fragile bones with severe osteoporosis.

2. The OP-1 in his reply submitted that, he was a visiting consultant Neurosurgeon at Kamayani Hospital, Agra.  The patient was a mother of an Anaesthesiologist admitted under his neurosurgery unit on 11.05.2011. The patient had a fall in the bathroom on 02.05.2011, about 10 days prior and took treatment somewhere. It was contended that at the time of admission in the Kamayani Hospital, the patient's vitals were normal i.e. pulse 94/min & BP 120/70 mm of Hg. Despite having backache, she was moving her limbs spontaneously. The x-ray showed wedge-fracture D-11 with mild kyphotic deformity and   MRI indicated the canal compression at D-11, without intrinsic cord changes. The motor movement in lower limb was adequate, but she did not co-operate for assessing exact power due to severe pain. She was a known case of hypothyroidism and osteoporosis as allegedly told by her son under treatment of a physician, as informed by her doctor-son. 

3. A decision for trans-pedicular screw fixation between vertebrae  was taken and it was intimated to the patient’s attendants. After the physician's assessment and anaesthetic clearance, she was operated   under general anaesthesia (GA) on 12th May 2011 in evening. The operation lasted for three hours and a half due to obesity of the patient requiring repeated per-operative imaging on image-intensifier. The screw-fixation was followed by de-compressive laminectomy of D-11 lamina. No Dural injury was found and no CSF leak was noticed. Suboptimal purchage of one screw at D10 was suspected and it was intimated to the attendants after surgery. Locally available bone was used as graft and put along screw-head. Patient had difficulty in breathing on 14th May 2011, when she was examined by the In-house physician. 

4. The one regular physician was called on 15th May 2011 and treatment was modified from time to time. Bedside x-ray chest showed problem with one screw, soon after it was intimated to the patient's relatives. On 21.05.2011, due to the patient's fever it was decided to change the antibiotics, but  her  son sought  discharge from the KamayanI Hospital, assuring that he would manage the antibiotics at home in consultation with a physician of his own choice.  After the discharge, the patient was taken home and, then, after 9 hours to Rashmi Medicare Centre for treatment of her fever. There Dr. Sanjay Gupta(neuro-surgeon) an associate of OP-1   continued to see the patient regularly and made complimentary visits. As one screw was loose, the OP-1 promised  to re-operate and reset the loose screw, but the patient never brought back. The patient got discharge from Rashmi Medicare Centre on 27.05.2011. Therefore there was no negligence, but filed a frivolous complaint.

7.     The OP-2, Dr. Muneshwar Gupta, the Managing Director of OP-3 Kamyani Hospital filed the written version. He made similar submission as of the OP-1 on treatment aspect. He further submitted that maximum amount of ₹50,000 may be required for surgery, however as the complainant was mother of the doctor, the hospital charged nominal amount of ₹32,000 and same was reflected in the bill/ discharge report. He further submitted that as he is a Radiologist, he had no role in surgery. He further confirmed that the OP-1 informed the husband of complainant that due to weak bones he did not pass on the screws in the full extent. 

During hospitalization postoperatively, the patient developed fever. Her doctor son  expressed his desire, to  take care of his mother at his house with the guidance of physician. Therefore patient was discharged on making payment as billed ₹44,000, a full and final settlement. However, after 9 hours on the same day from the house, she was taken to the Rashmi hospital and was admitted till 27.05.2011. During the first week of June 2011 the complaint’s husband and her son approached the OP-1 with the information that one screw was loose and for not giving a desired result after treatment, demanded ₹4,00,000 as a compensation. They also threatened about dire consequences if not paid. Since the patient was mother of a doctor, in good faith OP-1 offered to re-operate the patient. The OP-2 further submitted that the Complainant filed the complaint to claim Rs.10,21,000/- without any basis to bring pecuniary jurisdiction of this commission. The complainant took different stands i.e.  in the legal notice he claimed ₹44,000/- however in the complaint filed before the Commissioner of Police stated that Rs.1,46,000/- as charged by the hospital and he quoted different figure of Rs.7,00,000 in the newspaper article.  However interestingly the complaint mentioned an amount of Rs. 23,00,000/- as expenses but actually ₹44,000/- was spent at OP-3 hospital. He further submitted that the Disability Certificate was issued on 06.02.2013; i.e. 2 years after the surgery performed on 12.05.2011by the OP-1. It cannot be relied as to attribute negligence of OPs.

 

Held : 

1. The Commission after perusing  the material on record, inter alia, the Medical Record, literature and standard text books on neurosurgery, gave the relief to Doctors.

2. The commission took the notice of the fact that  Dr. R.C. Mishra (OP-1) is highly skilled and qualified specialist - having vast experience of 29 years in Neurosurgery, who remained as Professor Head in various Medical Colleges. 

3. The commission further held that from the record the patient’s attendant and her doctor son were apprised of the surgery and the pre & postoperative problem, the bone-graft to put at the screw for stabilization and healing and therefore, OP-1 used bone-graft with his discretion to avoid cement embolism.

4. It was observed  that Pedicle screw fixation is widely used in spine surgery for numbers of indications, such as degenerative disease, trauma, tumor, infection, and deformity. and the decision to perform short or long fusion remains individualized to each patient, and depends on a multitude of factors as discussed. The current study results suggest that either approach can achieve sufficient correction if performed appropriately. 

5. It was also revealed that the opp. Doctors were exonerated of charges of Medical Negligence & medical unprofessionalism by the  Ethical Committee of U.P Medical Council and this order was confirmed by MCI in an appeal with a warming to Doctors to maintain proper records and follow proper procedure. However, it was held by the Commission that the warning of MCI shall not construed as medical negligence during surgery performed by the OP-1.

6. The commission also held that the disability certificate of the Patient cannot be relied because it was issued on 06.02.2013 almost after 2 years of the surgery.

7. It was further held that from the medical literature DEXA scan is not mandatory in each case. Pedicle screw loosening is a common complication after spine surgeries. Traditionally, it was assessed by radiological approaches, both X-ray and CT scan, while reports using mechanical method to study screw loosening after spine surgery are rare. As stated, the patient’s son (anaesthetist) informed OP-1 about Osteoporosis; we do not see OP-1 ignored the Osteoporosis. For proper fixation he chose not to use cement augmented screws. The OP-1 for reinforcing the stabilization and healing used locally available bone-graft at the aforesaid screw-site. It was an age-old procedure of bone-strengthening better than use of bone cement. The old method was still in use and there is nothing on record to prove such method was legally abandoned/ stopped.  Therefore, in our view the OP-1 used the accepted method of treatment and thus it was a reasonable standard of practice, no a deviation of practice. We put reliance upon the case Achutrao Haribhau Khodwa and Ors. v. State of Maharashtra & Ors.[ (1996) 2 SCC 634], in which Hon’ble Supreme Court noticed that ‘in the very nature of medical profession, skills differs from doctor to doctor and more than one alternative course of treatment are available, all admissible’.

8. According to the literature and standard text books in Neurosurgery and Orthopaedics the cement augmentation has its own potential side-effects and irreversible neurological deficits or sometimes entails death. It is pertinent to note that three screws were retained during 2nd surgery at ISIC, thus meaning thereby Osteoporosis effect was not for the three screws..! The Commission observed that “In our view, the mistake of the patient's son that he took premature discharge from Kamayani Hospital, he took her home first and then, after about 9 hours, at 8 pm got her admitted in Rashmi Medicare Centre.” And on the contrary the patient was regularly seen by the assistant of Opp. No.1 Doctor and from the documents on record it reveals that  there was no breach of duty of care on part of Doctors  who treated the patient, who was in-turn a mother of one anaesthetist.  

9. The commission observed that To succeed in any medical negligence claim the Complainant must demonstrate that four essential ingredients of medical negligence are “4 D” namely 1) Duty of Care, 2) Dereliction (breach) of duty, 3) Direct Causation and 4) Damage proximate to the breach. In the instant case the Complainant conclusively failed to prove all those ingredients of medical negligence. 

10. The Commission after referring to 3 discharge summaries on record observed that the patient suffered neurological symptoms almost after  one year of the surgery performed at ISIC and  first two discharge summaries have no mention of TB or Anti Tubercular treatment (ATT) treatment. The third discharge summary was almost after one year and it revealed continuation of ATT treatment. Nothing is forthcoming about the AFB positive status or the diagnosis of TB. Moreover, nothing is on record to show when and where ATT with AKT4 started. All the discharge summaries of ISIC are silent on this issue. As per the medical literature, TB usually gets manifested 6 weeks after exposure of infection. Therefore, the Complainants arguments on this issue are unsustainable. The Commission further relied upon various judgments of Hon. Apex Court.

11. The Commission held that the Doctors adopted the standard reasonable practice and also followed ethical principles to his professional colleague the anaesthetist, whose mother was operated by OP-1 and the Commission literally  surprised to see that the patient’s son being an anaesthetist, how can raise frivolous allegation that pre anaesthetic check-up was not done. We find the doctors treated the patient reasonably and there was no deficiency or negligence during the treatment.  In our view, the complaint was filed, simply to blame for untoward incident to get some compensation. The Complainant aims to turn the wheels of fortune in his favour by demanding such immense damages.

This case makes it clear that, at times, even the Doctors are in the Consumer’s shoe; do not hesitate to blame their own colleagues. The Doctors in this case are qualified Doctors and it was proved that they performed their duties well and that is what is expected in Law. As it has been held by Hon. Apex Court in many cases that as lawyer cannot win every case, same is applicable to Doctors also that inspite of best of efforts, the expected result in patient’s health is not achieved. No doubt, in this case, the permanent disability of the patient is certainly an irreversible loss to her and her family. But that does not mean that someone is to be blamed always. 

Thanks and Regards

(Adv. ROHiT ERANDE) ©