C.ANJANI KUMAR vs MADRAS MEDICAL MISSION

THE complainant as diagnosed by the St. Marthas Hospital, Bangalore suffered from an illness known as Congenital heart disease Large P.D.A. He came to the 1st opposite party-Madras Medical Mission Hospital for treatment. THEre he was operated upon on 22.6.1992 by a team of Doctors headed by Dr. V.V. Bashi, the 2nd opposite party. Now, according to the complainant the operation has resulted in the permanent loss of voice due to paralysis of the left vocal cord and this has happened due to the negligence on the part of the opposite parties. He would state that immediately after the surgery when he was in the I.C.U. he lost his voice but he was told by the Doctors and the Nurses that it would have happened due to the insertion of tubes during the surgery and it would be normal after 15 or 20 days. But even after the discharge on 30.6.1992 the hoarseness of voice continued. THE 2nd opposite party-Doctor opined that at the time of the operation there would have been a slight injury to the nerve and he advised an E.N.T. check up and when accordingly E.N.T. check up was done the vocal cord paralysis was detected. Even thereafter it was told to the complainant that the voice would be normal in 6 months time. It was not at any time explained to him that there were chances of injury to the nerve or the risk of losing voice. THE complainant is a Senior Clerk in the Head Office of the Vijaya Bank in Bangalore. He was also a former State Level and National Level Chess Player and was coaching others for chess matches. Hoping that he would be a normal person he had incurred the expenditure of Rs. 50,000/- for the surgery and other treatment. Above all he is not able to communicate freely with others and his social life is shattered. On account of the loss of voice he is undergoing untold sufferings in many ways. On these allegations the complainant claimed for an award for Rs. 50,000/- for medical expenses, Rs. 7,00,000/- for further medical expenses that he would have to incur for medical treatment abroad and Rs. 8,50,000/- for compensation for mental agony and disrepute, all aggregating to Rs. 16,00,000/-.

THE 1st opposite party-hospital would contend that it takes special care to ensure that the Doctors employed by it possess the necessary qualifications and competence for the job, and the 2nd opposite party was employed as full time Senior Counsultant who holds Post Graduate qualifications in Cardio-Thorasic Surgery and is also a Fellow of the Indian Association of Cardiac Surgeons. Special care is taken to explain to the patients about the details of the surgery and possible complications through the Doctors and nurses and only after this the consent of the patient for the surgery is obtained. This opposite party denies the alleged negligence on the part of the opposite parties. The 2nd opposite party would contend that surgery for old patients with P.D.A. is extremely complicated as it involves division and suturing and all such facts had been explained to the complainant prior to the surgery and then his consent was obtained for surgery. During the surgery for closing the P.D.A. the focus is on avoiding injury to the ductal tissue which is friable as a tear may result in uncontrollable haemorrhage and the patient could bleed to death on the operation table itself. In spite of the best care of the surgeons during the surgery there could be some inadvertant pressure or injury on the laryngeal nerve which is closely associated with the ductus. In case such thing is not noted in the course of the surgery the definite manifestations would be there in the post operative period, and then the patient would be given immediate attention by an E.N.T. Specialists. In some cases due to fibrosis (formation of scar tissue in the healing process) the laryngeal nerve gets involved and the voice is affected. Injury to laryngeal nerve and paralysis of the vocal cord is a well-known documented complication arising out of P.D.A. surgery and the cardiac surgeons would be fully prepared for it and when it occurs it could be regarded as an unavoidable and inevitable complication in the larger interest of saving the patient''s life. The 2nd opposite party would then strongly refute the allegation that injury was caused to the laryngeal nerve during surgery and that resulted in permanent paralysis of the complainant''s vocal cord. This opposite party would further contend that the operation notes would clearly show that the complainant had no injury and the post operative period was also uneventful. The hospital reports maintained during the course of the post operative period would falsify the allegations of the complainant that he had lost his voice during the post operative period. It was only when the complainant came back for a check-up on 1.10.1992, he complained of hoarseness of voice and was sent to the E.N.T. Specialist who diagnosed left vocal cord paralysis. Thus there would be no deficiency in service on the part of this opposite party. Therefore, no liability may be fastened on him for payment of any amount to the complainant.

The question that arises for consideration is whether there was any deficiency in service on the part of the opposite parties and if so what relief the complainant can be granted.

ACCORDING to the complainant during the surgery the laryngeal nerve had been cut but this is disputed by the opposite parties. As per the complaint, soon after the surgery when the complainant was in the I.C.U. he had lost his voice and when this was informed to the Doctors and Nurses he was told that it would be alright in 15 or 20 days. The opposite parties would not admit this, and on the other hand would contend that the post operative period was quite uneventful and there was no complaint of any impairment of voice and the operation notes and other hospital reports maintained during the course of the post operative period would falsify the said allegations of the complainant. Indeed, the perusal of the operation notes-Ex. A3, Ex. Al- Discharge Summary, Ex. A6-Out patient case records and Ex. B7-Progress Report maintained by the Doctors and Nurses, all do not indicate at all that there was any injury caused to the laryngeal nerve during the surgery. The complainant would bring to our notice Ex. P4 which is a reply dated 25.8.1992 sent by the 2nd opposite party-Doctor to a letter sent by the complainant on 19.8.1992 and from this it is argued that in this it is admitted that an injury to the nerve had been caused. But it must be remembered that when the operation has been done on 22.6.1992 this letter from the 2nd opposite party had been sent more than 2 months after that, that was on 25.8.1992. As seen above it is a fact that none of the hospital records would show that there was any injury to the nerve during the operation. It is significant to note that as it is apparent from Ex. A4, the complainant has written to the 2nd opposite party in his letter dated 19.8.1992 that he was doing well and the Doctor also has expressed his happiness about it. But it would appear in that letter of the complainant dated 19.8.1992 he has also stated something about defect in his voice and to that the 2nd opposite party had written that there would have been a slight injury to the nerve. From this alone to say that the Doctor has admitted that there was injury caused to the nerve would be preposterous. It would appear that the 2nd opposite party had quite innocently at that moment, though there was no injury during the operation and there was nothing indicating such a thing in the record, has stated so. Therefore Ex. A4-letter would not be helpful to the complainant to establish his allegation that an injury had been caused during the operation. The 2nd opposite party-Doctor in his evidence as RW 1 has categorically denied that the complainant suffered any injury in the vocal cord during the operation. In his written version the 2nd opposite party has contended that in some cases due to fibrosis (formation of scar tissue in the healing process) the laryngeal nerve gets involved and the voice is affected. In his evidence also he has stated that after the operation there will be a scar formation at the site of the operation, and because the recurrent laryngeal nerve is close to the site of the operation, the scaring can produce injury and damage to the recurrent laryngeal nerve, and entangle recurrent laryngeal nerve. This evidence has not been challenged in the crossexamination of the witness nor any contra evidence has been adduced. It is further contended by the opposite parties that the injury to the laryngeal nerve and paralysis of the vocal cord is the well documented complication arising out of P.D.A. surgery and cardiac surgeons are fully prepared for it and when it occurs they regarded it as unavoidable and inevitable complication in the larger interest of saving the patient''s life. This contention has not been repudiated by the complainant. In his evidence the 2nd opposite party (RW 1) has testified that the incidence of vocal cord paralysis reported in the World Literature following P.D.A. is about 4%; the reason being that the location of the recurrent laryngeal nerve which supply the vocal cord is very close to the ductus. This evidence also has not been challenged in the cross examination and no contra evidence has been let in. It may be relevant here to note that as soon as the 2nd opposite party had heard about the impairment in voice he had referred the patient to the ENT Specialist. In these circumstances it is very difficult to hold that there was deficiency in service on the part of the opposite parties during the surgery or during the post operative period.

THE complainant would say that he has not been informed before the operation about the chances of me impairment of the vocal cord due to the surgery. But the opposite party would refute this, and the complainant has signed Ex. B2-consent letter wherein it is stated that, "I also understand that the procedure(s) may result in complications [which have been known to occur after the procedure(s) to which I am consenting], even though the utmost care, judgment, and skill are used. I understand that all anaesthetics involve risks and that serious injury or death have been known to occur. No guarantees have been promised to me from this procedure(s)". Further, as seen supra, it has not been categorically proved that the laryngeal nerve has been injured during surgery, and therefore, this plea of the complainant has no force. It is also pleaded by the complainant that the opposite parties have not given him proper advise for remedy. But the case of the complainant himself is that the 2nd opposite party-Doctor had referred him to the ENT Specialist. That hospital would be more competent regarding the remedy for vocal cord impairment. In this connection the complainant would bring to the notice of this Commission a letter-Ex. A12 dated 27.3.1996 which is alleged to have been received by the complainant''s wife from a Doctor in the Royal Marsden Hospital, London, wherein it is stated that the vocal cord impairment could be easily remedied and that could be done in the London Hospital. That may be so. But this has nothing to do with the point for decision in this case, namely whether there was deficiency in service on the part of the opposite parties. Considering all these we hold that the complainant failed to prove deficiency in service on the part of the opposite parties and therefore, there is no merit in the complaint. In the result, the complaint is dismissed. However, there will be no order as to costs. Petition allowed.