TaxTMI 
TaxTMI 
2009 (5) TMI 992
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....ofibroma, 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 h....
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....ith 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 ₹ 89,17,200 (Annexure XI) 2. Present burden of expenses ₹ 3,38,604** [Annexures IV(a) to(d) ] 3. Damages on account of the ₹ 30,34,930 complainant by father, mother, younger brother & maternal Uncle [Annexures VII, VIII, IX & X] 4. Prospective burden of expenses ₹ 3,00,00,000 (Annexure-XII) B) GENERAL DAMAGES (NON PECUNIARY) Pain and suffering, loss of amenities & ₹ 38,30,000 Enjoyment of life & shortening of life Expectancy. (Annexures XIII, XIV, XV) - ₹ 4,61,20,734 ** (Later in his affidavit dated 5.2.94, this has been shown as ₹ 3,49,022 and the total claim as 4,61,31,152: the present burden of expenses includes an amount of ₹ 1,27,644/- paid to OPI and ₹ 91,002/- to other hospitals). 3. On notice several replies were ....
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....ssibility 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 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 s....
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....ion 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 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 complaina....
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.... (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-co....
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....on 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. 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 st....
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....inant'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 compensation to b....
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....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....
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....ments 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 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 ....
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....ant degeneration can occur. When new symptoms appear - an enlarging mass or pain - excision is recommended. Needle biopsy may miss 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 operati....
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....e. Consent can be implied in some circumstances from the action of the patient. For example, when a patient 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"....
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....ithout 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....
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....ising and professing to have that special skill. A man need not possess the highest expert skill ... It is well-stablished 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". (2) Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligen....
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..... 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 liabili....
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....round 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. Saty....
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.... 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 i....
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....more, 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, w....
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....aminectomy 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 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.....
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....t 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 uncall....
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....ated 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 a 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 exp....
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.... not be adjudicated by the Agencies under the Act. In complaints involving complicated issues requiring recording of evidence of 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 O....
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....e 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 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,....
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....ensation under this head presuming his working life to be 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 ₹ 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 ₹ 7.2 Lakh under this head. The complainant has also sought a sum of ₹ 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 ₹ 4375/-per month for 600 months. We are of the opinion that the amount as claimed is excessive. We, thus grant ₹ 4,000/- per month to the appellant for a period of 30 years making a total sum of ₹ 14,40,000/-. The complainant has further sought a sum of ₹ 46 Lakhs towards physiotherapy etc. at the rate of ₹ 4,000/- per month. We reduce the claim from ₹ 4,000/- to ₹ 3,000/- per month and award this amount for a period of 30 years making a total sum of ₹ 10,80,000/- At thi....