G.K. Rao vs Dr. Bollineni Bhaskar Rao And Ors.

THE complainant had undergone Angiogram test on 20.1.1994 in Opposite Party No. 2 -Hospital after he had suffered from chest pain for about a year. The diagnosis was triple vessel disease of the heart. The complainant consulted Dr. B. Bhaksar Rao, opposite party No. 1 at opposite Party No. 2 Hospital where he was admitted on 7.5.1994. Dr. B. Bhaskar Rao performed heart operation, namely, coronary artery bypass surgery (3 grafts) on 9.5.1994 and the complainant was discharged on 23.5.1994. According to the complainant even after heart surgery, he continued to have some pain in the left side of the chest and the pain gradually increased and was unbearable by August, 1996. The pain became worse on breathing. He consulted various physicians at Vijawada. On 7.10.1996 the complainant consulted Chief Cardiologist Professor A. Rajagopalaraju, M.D.DM. After 2D Echo of the Heart colour doppler echo cardiograph and X -ray chest, a round shadow was seen in the right cardiophrenic angle. He also noted that the same shadow was seen in x -ray of May, 1995 which was taken one year afterwards heart operation. Prof. Rajagopalaraju advised complainant to consult Dr. Vijay Bhaskar, Chest Specialist (Palmonologist) of Opposite Party No. 2 Hospital. Dr. B. Vijay Bhaskar examined him and advised C.T. Scan of chest which was done on 9.10.1996 at Opposite Party No. 2 Hospital. In the C.T. Scan well defined fluid collection measuring 5.2x4.5x5 abutting pericardium chest below and interior to the right hilum -post surgical loculated fluid collection was noticed. This report according to the complainant confirms that the complainant developed a cyst containing fluid, close to the lining of the heart (pricardium) following the operation performed by Dr. B. Bhaskar Rao at Opposite Party No. 2 Hospital. According to the complainant he believes that this development is due to the negligence/faulty technic of Dr. B. Bhaskar Rao while performing heart surgery on 9.5.1994. The complainant was advised to take medicines by Dr. Rajagopalaraju and to come after six months. Later he was advised to consult Dr. B. Bhaskar Rao Opposite Party No. 1 who admitted him in Opposite Party No. 3 Hospital on 28.5.1997. Dr. B. Bhaskar Rao diagnosed it to be para cardial cyst and performed another major surgery, namely, Right Thorocotomy for excision of cyst and the complainant was discharged on 13.6.1997. The complainant continued medicine prescribed by Dr. B. Bhaskar Rao but he continued suffering and pain on the site of the operation conducted on 28.5.1997. On 7.10.1996, the complainant got himself examined by Dr. Rajagopalaraju who advised him to consult Dr. Vijay Bhaskar and on his advice fluoroscopy test was conducted on 28.7.1997 wherein it was found that Diaphragmatic movements were very sluggish and the right pump of the Diaphragmatic was elevated. The complainant was informed that he had developed paralysis of right side of his Diaphragm following injury to the phrenic nerve as a result of Thoroctomy operation performed by Dr. B. Bhaskar Rao on 28.5.1997. On 7.7.1998 the complainant got long function test at Bhanu Test Centre, Vijayawada which revealed that "Computer interpretation considered a combined restrictive obstructive ventilation defect with mild airflow limitation and the loss of lung volume was approximately 5.11 Ltrs. According to the complainant because of the cut in the phrenic nerve, the right lung of the complainant was paralysed and the complainant was suffering elevation of diaphragm problem. The complainant again consulted Dr. Vijay Bhaskar who after advising C.T. Scan for restrictive lung disease asked the complainant to see Prof. Rajagopalaraju. Dr. Prof. Rajagopalaraju after examining on 1.4.1999 orally informed the complainant that the same was because of cut of phrenic nerve. It is further contended that in the C.T. scan report dated 12.1.1999 it is clearly mentioned that the right lung lobes 3 are damaging and collapsing and are at different stages. On 8.6.1999 Dr. Vijay Bhaskar referred the complainant to Dr. R. Guleria, Asstt. Prof., Department of Internal Medicine, AllMS, New Delhi for evaluation of respiratory mechanics of the complainant who advised regarding artificial implant or diaphramatic facing. According to the complainant he holds responsible post in the Ministry of Information and Broadcasting, Government of India. On account of ill health resulting from the operation, he could not perform duties well. The Complainant further learnt paralysis developed because of the cut of phrenic nerve. According to the complainant Dr. B. Bhaskar Rao Opposite Party No. 1 was negligent in performing heart surgery on 9.5.1994 resulting in development of cyst containing fluid close to the lining of the heart, on account of which Thoractomy operation was performed by Opposite Party No. 1 Dr. B. Bhaskar Rao on 28.5.1997 as result of which the complainant suffered paralysis of right side of his diaphragm following injury to the phrenic nerve. According to the complainant, cause of action arose on 20.1.1994 till he consulted various doctors till 1.4.1999. On the above mentioned pleadings, the complainant sought following directions against Opposite Party Nos.1 and 2: (i) to refund Rs. 93,280 with interest at 18% p.a. from 9.5.1994 till the date of realisation,

(ii) to direct the Opposite Party Nos. 1 and 3 to refund Rs. 41,227.70 along with interest at 18% p.a. from 28.5.1997 till the date of realisation,

(iii) to pay compensation of Rs. 20,00,000,

(iv) to pay costs of Rs. 10,000.

THE Opposite Party Nos. 1 to 3 in reply submitted that the complaint is without any cause of action and the same is barred by limitation. It was stated that the complainant has not submitted Discharge Summary of Opposite Party No. 2 -Hospital possessed by him and the true facts are reflected in the same. It was submitted that after heart surgery, patients will have variable amount of pain for about 3 to 6 months, as sternum bone is split into two for the operation. But in some patients it may persist for longer period or it may persist permanently. In such cases, the pain is due to steel wires, which are used to unite the two pieces of sternal bones. The complainant has not consulted Dr. B. Bhaskar Rao Opposite Party No. 1 for his pain problem but instead he consulted many other physicians. It was further submitted that cyst with fluid collection which was made out by C.T. Scan was not due to fluid collected at the time of heart surgery on 9.5.1994 and X -ray or 2D Echo performed after the 1st surgery has not revealed any fluid collection. It is further submitted that localised or generalised percardial collections are almost always present in the post operative cases and usually they will get absorbed in about three months. The complainant had come to Dr. B. Bhaskar Rao after six months of the diagnosis of pericardial cyst on the advice of Dr. Rajagopalaraju and Dr. Vijay Bhaskar. He accordingly conducted the right Thoracotomy on 28.5.1997 and during surgery it was found that there was a thick walled cyst filled with infected fluid and cheesy material. It was adherent to the pericardium and to the right dome of diaphragm inferiority. During dissecting of the cyst wall while removing it, there is no deliberate injury to the phrenic nerve as the cyst wall is closely lying and adherent in the area of phrenic nerve. It may have been partially injured with the heat of diatheromy or may be traction injury. The complainant was discharged on 13.6.1997. It is further submitted that the pain following any major operation will persist for atleast 2 or 3 months and it will be more with Thorocotomy incision. According to the opposite parties, complaint is based on wild presumptions and assumptions but no medical evidence has been adduced to prove the negligence. According to the opposite parties the case of elevation of sluggish movement of diaphragmatic dome on the right side could be due to removal of cyst wall which is adherent to the dome of diaphragm and while removing it there might have been sight injury to the diaphragm itself and also a few sutures are applied to control bleeding and to repair partially torn diaphragmatic muscle fibres. Opposite parties further stated that cause of obstructive airways disease and also restrictive disease shown in PFT test done on 7.7.1998, is not due to damage to the phrenic nerve. The C.T. Scan done on 12.1.1999 shows that the complainant is having subpleural blebs in both right and left lungs and segmental collapse which contributes to his symptoms of breathlessness. According to the opposite party, the complaint of coughing blood in sputum is due to chronic bronchitis and obstructive airways disease. The opposite parties have also taken plea of limitation on the ground that cause of action had arisen on 9.5.1994 and 28.5.1997 and the complaint was filed on 13.9.1999.

THE complainant filed his evidence on affidavit wherein he has substantially confirmed the contents of the complaint. He also produced the medical record of his examination by Dr. R. Guleria. The opposite parties filed evidence by way of affidavit of Dr. B. Bhaskar Rao in which the stand taken in the reply was substantially confirmed.

PARTIES had filed written arguments and oral arguments were also heard.

LEARNED Counsel for the complainant has alleged that Complainant had developed a cyst containing fluid close to the lining of his heart and the same developed due to negligence/faulty technique of Dr. B. Bhaskar Rao, Opposite Party No. 1 at the time of heart surgery. It is further submitted that Dr. B. Bhaskar Rao never informed the Complainant about fluid collection or cyst formation and he did not supply the case sheet and operation notes. It is further submitted that the complainant had developed paralysis of right side of diaphragm following injury to the phrenic nerve which was on account of failure of Dr. B. Bhaskar Rao to take appropriate care at the time of heart operation. It is further submitted that Dr. B. Bhaskar Rao was aware of the fluid collection during the post operation period but he did not take any remedial measures to avoid formation of the cyst. It was emphasised by learned Counsel for the complainant that Dr. B. Bhaskar Rao in his reply has also stated that there may be injury to phrenic nerve in the course of operation, but generally left phrenic nerve damage is more frequent than right. However, in the complainant''s case the right phrenic nerve is damaged. It is further submitted that it is a case of res ipso loquitur as the opposite parties have not properly explained authoritatively the reason for formation of cyst and its circumstances. Lastly it was contended that the complaint is not barred by limitation since the same was filed in the year 1999 and till then the consultation continued in respect of the post operative complications resulting out of negligence of Dr. B. Bhaskar Rao during heart surgery and thereafter during the removal of cyst.

ON the other hand, it is submitted by learned Counsel for the opposite party that the complainant never reported for follow up and consulted other physicians at Vijayawada for about 3 years and reported only on 26.5.1997 for excision of cyst. The complainant had consulted Dr. Rajagopalaraju and Dr. Vijaya Bhaskar in October, 1996 and on their recommendation he reported to Dr. B. Bhaskar Rao for excision of cyst on 26.5.1997. Operation was performed on 28.5.1997 and the complainant was discharged on 13.6.1997. Thereafter, the complainant visited Dr. B. Bhaskar Rao on 21.6.1997 and was asked to report for further review but he never reported back. It is further argued that the cyst with fluid collection shown in C.T. Scan was not due to fluid collection at the time of heart surgery on 9.5.1994 since X -ray or 2D Echo performed after 1st surgery does not reveal any fluid collection. It is further submitted by learned Counsel for the opposite party that cyst was closely lying and adherent in the area of phrenic nerve course and same could be partially injured with the heat of diathermy or may be traction injury (neuropraxia). In this connection, reliance is placed on medical literature which has been filed. It is further contended that the subsequent complications disclosed by PFT test conducted on 7.7.1998 show that there is element of obstructive airways disease and also restrictive disease and the cause of it is not due to damage to the phrenic nerve, but the same were due to chronic bronchitis and obstructive airways disease which contributes to symptoms of breathlessness. Lastly, it was submitted that no evidence has been produced in support of the allegations made by the complainant and allegations are mostly based upon the belief of the complainant and what was orally told to him. It is, therefore, submitted that the complaint be dismissed as no negligence has been proved in performing operation by Dr. B. Bhaskar Rao, Opposite Party No. 1.

THE principles relating to liability resulting from medical negligence are now well settled by a catina of judgments of the Apex Court. The Apex Court in the case of Jacob Mathew (Dr.) v. State of Punjab and Anr., III (2005) CPJ 9 (SC)=VI (2005) SLT 1=122 (2005) DLT 83 (SC)=III (2005) CCR 9 (SC)=2005 (6) SCC 1, has dealt in greater details the issue of negligence of professionals including doctors in paras 18 to 33 of the said judgment. The standard to be adopted for determining medical negligence is of a reasonable average practitioner in the field and the practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of particular circumstances of each case, is what the law requires, and a person is not liable for negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way. The Bolam test has been widely accepted. The Apex Court has laid down that judged by this standard, a professional may be held liable for negligence on one of the two findings; either he was not professed of the requisite skill which he professed to have possessed or he did not exercise with reasonable competence in the given case, the skill which he did possess.

THE opposite parties have raised issue of limitation and absence of cause of action. The case of the complainant is that he is suffering from complications arising out of heart operation and excision of cyst by Dr. B. Bhaskar Rao, Opposite Party No. 1. If complications are due to medical treatment, the cause of action has to be treated as continued cause of action. Be that as it may, in the circumstances the complaint, cannot be dismissed on the ground of limitation. The complainant has not challenged the procedure adopted by Dr. B. Bhaskar Rao either during the heart surgery or during the excision of cyst. The main grievance of the complainant is that the cyst containing fluid had developed on account of negligence of Dr. B. Bhaskar Rao while performing heart surgery on 9.5.1994. It is further submitted that Dr. B. Bhaskar Rao did not adopt remedial measure to control the cyst formation even though the round shadow could be seen in the x -ray which was done after heart surgery in May, 1995. The grievance of the complainant further is that Dr. B. Bhaskar Rao while conducting right Thoractomy for excision of cyst on 28.5.1997 had caused injury to the phrenic nerve which resulted in the paralysis of right side of diaphragm of the complainant. The complainant also alleges loss of lung volume of approximately 5.11 Ltrs. It is also allegedthat on account of cut in phrenic nerve, right lung was paralysed. The complainant also attributes the restrictive and obstructive air ways, sluggish diaphragmatic movement as a direct result of the two operations conducted by Dr. B. Bhaskar Rao Opposite Party No. 1. No expert medical evidence has in fact been produced to substantiate the grievances. The complainant has repeatedly stated in his evidence by way of affidavit that all complications arose on account of negligence of Dr. B. Bhaskar Rao. According to him, the cyst containing fluid had developed close to the lining of the heart following operation performed by Dr. B. Bhaskar Rao Opposite Party No. 1 on 9.5.1994 and he believes the same took place on account of negligence of Dr. B. Bhaskar Rao. In support of the sluggish diaphragmatic movement, it is stated that he has been informed that he developed paralysis of right side of diaphragm following injury to the phrenic nerve as a result of Thoratomoy operation performed by Dr. B. Bhaskar Rao on 28.5.1997. No expert medical evidence in support of the said allegation has been filed by the complainant. According to him Dr. Rajagopalaraju orally informed him that the restrictive lung disease was because of cut of phrenic nerve. However no affidavit of Dr. Rajagopalaraju has been filed and the grievance of the complainant that on account of cut of phrenic nerve, his right lung was paralysed with elevation of diaphragm problem is not substantiated. In his evidence, at a later stage also it is stated that he learnt that the paralysis developed because of cut of phrenic nerve for which Dr. B. Bhaskar Rao, opposite party No. 1 should held responsible for being negligent in performing both operations. On the other hand, Dr. B. Bhaskar Rao in his evidence of affidavit has stated that the complainant did not revert back to him for treatment after heart surgery on 9.5.1994 and he continued to take treatment from various physicians of Vijayawada for about 3 years. Even after X -ray taken in 1995, complainant did not consult Dr. B. Bhaskar Rao. Therefore, the contention of the complainant that Dr. B. Bhaskar Rao did not take any remedial measures is without any merit. There is nothing to show that cyst formation was due to any negligence on the part of Dr. B. Bhaskar Rao. According to Dr. B. Bhaskar Rao during surgery it was found that the cyst wall was lying close and adherent to the area of phrenic nerve and the same may have been partially injured with heat of diatheromy or may be traction injury. In support of this he has placed reliance on medical literature.

IN cardiac surgery by Dr. John W. Kirkler and Brian G. Bararatt, 2nd Edition Chapter -5 Post Operative Care, page -211, it has been stated that after cardiac surgery with cardiaopulmonary bypass, the lungs are more likely to have dysfunction, albeit mild and transient than any organ, other than the heart itself. It is further stated that in some patient direct trauma to the lungs occurs and contributes to pulmonary dysfunction. Should secretions be retained during or early after the operation, these also contribute to dysfunction. Left (and occasionally right) phrenic nerve injury may occur after even very carefully performed cardiac operations, increasing the tendency to pulmonary dysfunction.

IN Glann''s Thoracic and Cardiovascular Surgery -5th Edition, published by Dr. Appleton and Lange, pages 546 and 547, under heading "Post Traumatic Diaphragm", it has been observed: "The most common cause of paralysis of the diaphragm is injury to the phrenic nerve during the operations on the heart and adjacent blood vessels. Such injury is usually the result of cry -otrauma from the phrenic nerves'' contact with ice -cold solutions or slush placed in the pericardial sac to reduce mycardial metabolism during operation, or of stretching and compression during dissection for exposure of the operating field. One (usually the left) or both the phrenic nerves can be affected. ................ Treatment of diaphragm paralysis in post -traumatic injury of the phrenic nerves is conservative in most cases. ....... Most patients recover adequate pulmonary function to allow them normal activity within a few weeks, but a significant number have shown residual paralysis for more than a year."

IN Surgery of Chest by David C. Sebastian, 6th Edition (1195) while dealing with injury of Phrenic Nervous System at page 267, it has observed that Phrenic nerve damage is also common (1.7 to 11%) and may be due either to direct surgical injury (diathermy or division) or to cold injury caused by the use of topical hypothermia. It is further stated therein that most of these neuropraxic neuropathies will resolve, and their effect can be lessened by appropriate physical therepy and counselling.

THE medical literature relied upon by the opposite party, thus, makes it clear that left (occasionally right) phrenic nerve injury may occur even after very carefully performed cardiac surgery operation. In the case before us, the injury to the right phrenic nerve could have occurred in the course of operation and in view of the medical literature placed before us the same cannot be said to be result of medical negligence on the part of Dr. B. Bhaskar Rao, Opposite Party No. 1.

IN view of the above, we are of the opinion that Dr. B. Bhaskar Rao cannot be held liable either for development of cyst or for injury to the phrenic nerve and the subsequent problems faced by the complainant. The complainant in fact had not followed up the treatment with Dr. B. Bhaskar Rao either after the heart surgery or after excision of cyst and he had consulted many other physicians and Pulmonlogist. Most of the medical records produced are that of Dr. Vijay Bhaskar, Pulmonologist and other doctors. In such cases, regular and proper follow up with doctor who performed the operation is absolutely necessary so that proper remedial measures are taken but the complainant did not follow up the treatment with Dr. B. Bhaskar Rao. The principle of res ipsa loquitur sought to be relied upon by the complainant cannot be applied to the facts and circumstances of the case.

IN view of the above, we are of the opinion that the complainant has failed to make out any case of medical negligence as against opposite parties and the complaint is liable to be dismissed. The complaint is accordingly dismissed with no order as to costs. Complaint dismissed.