Nizam'S Institute Of Medical Sciences vs Prasanth S.Dhananka & Ors

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 3 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:

(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).

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:

(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.

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:

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.

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."

and "Patients with neurogenic tumours arising in the thorax should undergo early surgical exploration and complete resection of the tumour if possible.

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.

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, 65 accordingly been determined payable by NIMS, the appellant before us.

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. 68

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.

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.