First Appeal No. 349 of 2005 decided on 5-5-2011 by the National Consumer Disputes Redressal Commission, New Delhi.
Facts : Before the State Commission, the case of the complainant was that his wife, Mrs. Nirmala Devi was suffering from some problem in her spinal cord, she was examined in the AIIMS, New Delhi and was advised surgery. The surgery was performed in the National Institute of Medical Sciences, Jaipur, and that he was assured that the surgery will be performed by a neuro surgeon but was actually performed by an orthopaedic surgeon, which, it was alleged, was an act of unfair trade practice, on the part of the respondents. After this surgery, the condition of his wife deteriorated. She lost sensation in the lower part of her body and became totally bed ridden and was shifted to SMS Hospital, Jaipur.
The State Commission noted that two months before this surgery, there was an MRI report from Delhi MR & CT Center, New Delhi which showed that it was a case of -
a. advanced degenerative changes in the lumber spine with
b. large posterocentral subligamentus extrusion L 4/5 disc causing thecal sac and cauda equine nerve root compression.
c. Small central protrusion L5 / S1 disc.
Patient was admitted on 23-10-2002 in the Respondent/OP hospital, was operated upon on 25-10-2002 and was discharged on 3-11-2002. The patient was again admitted on 9-11-2002 and discharged on 19-11-2002. Two days before her discharge, the patient was advised on 17-12-2002 that an opinion of neuro surgeon should be obtained. She was once again admitted on 15-12-2002 and discharged on 28-12-2002. The letter of 25-10-2002, pertaining to the consent for the surgery, clearly revealed that it was to be conducted by Dr. Arvind Sharma and Dr. Sudhir Khurana and that the consent was given by the complainant himself in writing by putting his signature in English. There was no dispute about the nature of the ailment, which is evident from the MRI report.
That the disease came under the purview of orthopaedic surgery and rightly performed by Dr. Anand Sharma, who was an orthopaedic surgeon, was accepted by the State Commission and the finding of 'no medical negligence' reached on the following:-
a. "The disease known as Cauda Equina Syndrome is a disease which could be cured or treated or operated by both an orthopaedic surgeon as well as by a neuro surgeon.
b. To say that the surgery can only be performed by a neuro surgeon cannot be accepted.
c. The surgery was performed by Dr. Anand Sharma, an orthopaedic surgeon.
d. It is not the case of the complainant that Dr. Sharma was not qualified to perform such an operation.
e. If the treating orthopaedic surgeon feels that neurological examination should be done before operation of such disease, he may do so. But, if he does not think so, before operating, it cannot be said that he is guilty of professional or medical negligence.
f. In this case, as the condition of the patient was not improving,
Dr. Anand Sharma did advise on 17-12-2002 that her case should be examined by the neuro surgeon,
Expert Opinion : Before the National Commission the only substantive ground raised against the impugned order was that the complainant's wife was suffering from Cauda Equina Syndrome which "could only be treated and operated by a neuro surgeon and not by an orthopaedic surgeon." With the consent of the two counsels, the matter was referred to the All India Institute of Medical Sciences, New Delhi (AIIMS), with a request to constitute a Medical Board comprising senior doctors from the disciplines of orthopaedics, neurosurgery and radiology to give its opinion based on the record submitted to it. The Medical Superintendent constituted a four member Board of Doctors to examine the reference, which included experts from departments of orthopaedics, neurosurgery radio-diagnosis and Hospital administration. From the MRI report of 27-8-2002, the Board confirmed that it was a case of degenerative spondylotic changes. L3-4, L4-5 and L5-S1 disks were found to be dessicated and narrowed. At L4-5 level there was "severe compression of the cal sac and cauda equina nerve roots". From the post operative report of December 2002, the Board observed that " There is evidence of right-sided laminectomy at L5 level and post operative changes are seen at L4 - L5 level. Compared with MRI dated 27-8-2002, there is no significant change in the size of the extruded disk at L4-L5 level." The expert Board expressed its opinion in the following terms:- "In view of the above findings, and careful evaluation of the documents provided by the Hon'ble National Commission, the committee members were of the opinion that it is not possible to establish negligence in the said case due to the following reasons:-
- There is a long delay between the two MRI examinations making it difficult to differentiate whether it is a case of wrong level surgery ( i.e. the disc was not removed) or a recurrent disc prolapsed which is a known phenomenon.
- Also, the repeat MRI has been done without contrast which could have differentiated between the residual or recurrent prolapsed disc and the postoperative scar.
- The perusal of the operation notes and the presence of post operative changes at the appropriate level suggest that the exploration was done at the correct level.
- The delay in the second examination and the progress notes during the first hospitalization suggest that there might have been initial recovery after surgery.
- The patient had features suggestive of Cauda Equina Syndrome which is a serious condition and the neurological improvement may not occur even if adequate decompression of the offending disc is carried out. This fact is further substantiated by the repeat decompression at the L4-5 level which failed to relieve the patient.
- The perusal of the records showed that the patient was advised surgery in August 2002 but underwent surgery in October 2002. In the setting of Cauda Equina Syndrome this may compromise or delay the chances of recovery."
A second reference was made to the AIIMS, New Delhi on 14-12-2010, along with record of treatment at Sawai Mansingh Hospital, Jaipur after final discharge from the Respondent hospital i.e. from 31-12-2002 to 31-4-2003. The All India Institute of Medical Sciences, New Delhi replied on 24-12-2010 stating that "the Medical Board was of the opinion that both the Orthopaedics Surgeon and the Neuro Surgeon are competent to perform the envisaged surgery."
Findings : The appellant had drawn attention to the entry of 29-8-2002 in the OPD ticket of the Cardiothorasic and Neuroscience Department of AIIMS which reads "Adv:- Neurosurg consultant" . In our view, it is open to only one interpretation i.e. consultation with a neuro surgeon is advised.
- The State Commission was right in concluding that the complainant had failed to establish that there was any medical negligence in the treatment provided by the respondents.
- The complainant has equally failed to produce any conclusive material or evidence before this Commission in support of the main ground for appeal viz. that this surgery could have been performed only by a neuro surgeon.
- The opinion of the independent expert (All India Institute of Medical Sciences, New Delhi), sought at the express request of the appellant/complainant, leaves no room for doubt that, in this case, the surgery could be performed either by an orthopaedic surgeon or by a neuro surgeon. Therefore, the fact that it was actually performed by an orthopaedic surgeon does not per se constitute medical negligence.
Consequently, the appeal fails for want of merit and is dismissed.