Case: Nizam'S Institute Of Medical Sciences Vs. Prasanth S.Dhananka

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 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 complainants father requested NIMS for a detailed report so that his sons 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 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 complainants 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 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 (Annexure XI)Rs.89,17,2002.Present burden of expenses [Annexures IV(a) to(d)]Rs.3,38,604**3.Damages on account of the complainant by father, mother, younger brother & maternal Uncle [Annexures VII, VIII, IX & X]Rs.30,34,9304.Prospective burden of expenses (Annexure-XII)Rs.3,00,00,000(b)General Damages (Non Pecuniary)Pain and suffering, loss of amenities & 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 2nd, 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 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 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 patients 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

Reasoning:
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 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.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 relevant. It is also evident that a doctor rendering treatment to a patient is expected to have reasonable competence in his field. (Bolams 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 necessaryinvestigations 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 that the complainant has argued that whereas a cardiothoracic 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 containingblood 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 andhad 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. 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. Satyanarayanas 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 on examination he had noticed only a bony erosion and no involvement of the spinal cord. We are of the opinion that thisdiagnosis 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 theintervertebral foramen andthat there was an opening one cm in size in the vertebral body exposing the spinal cord.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.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. Theof 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 aive 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.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. Merchants 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 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 above, are to say the least uncharitable and uncalled for. The judgment in Indian Medical Associations 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 complainants 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 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 abouttowards prospective charges for physiotherapy, nursing and associated expenses;(b) Rs.4 lakh (likewise expected to yield a monthly interest of aboutfor supplementing the complainants 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 complainants 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 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. 16th 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.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.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/er 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 already been defrayed by the employer of the complainants 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 ofunder 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,a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and 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 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.