K.Venkateshwarlu vs MANAGING DIRECTOR, NAGARJUNA HOSPITAL

AGGRIEVED and dis-satisfied by the order of the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad dated 8.9.2003 Shri K. Venkateshwarlu has filed this appeal. Case of the appellant :

APPELLANT was the Complainant before the State Commission. Shri Venkateshwarlu approached Dr. U. Venkata Ramana''s Hospital Siromani Nursing Home, as he was getting pains and feeling weakness in both the legs after walking for a few yards. Dr. Venkata Ramana who is associated with Nagarjuna Hospital, Vijayawada advised him to approach the said hospital. He was admitted in the Nagarjuna Hospital on 21.2.1996 and he was advised to undergo MRI Test at Medwin Hospital, Hyderabad. Accordingly MRI was done on 24.2.1996. With this report the Complainant returned to Nagarjuna Hospital and surgery was conducted on 26.2.1996 by Dr. U. Venkata Ramana. After operation there was no improvement in his legs but on the other hand his two legs have become very weak day by day and it had become impossible for him to walk and even to attend his natural calls. Nagarjuna Hospital authorities advised the Complainant to go to Vellore Hospital where he underwent several tests and finally it was opined that the Complainant will not recover and is permanently handicapped due to the wrong surgery at the respondent hospital. The appellant alleged that though the operation was not required, a major operation was done in the respondent hospital, causing permanent disability to him. Dr. U. Venkata Ramana who conducted the operation is an Orthosurgeon and not a Neuro-surgeon. As such, there is deficiency in the services of the respondent hospital. The Complainant was not duly or fully informed of the consequences of the operation and the risks involved therein.

The Complainant submitted that he has not been in a position to discharge his duties for 1 years and he brought these facts to the notice of the authorities of the respondent hospital and requested to compensate him but there was no response. After waiting patiently for a long period, the complainant got issued a legal notice to the respondent hospital on 4.12.1997 calling upon them to pay a compensation of Rs. 23,61,039.50 paise. But the respondent got issued a reply to the notice through their Counsel, denying the liability.

IN the State Commission the learned Counsel for the Nagarjuna Hospital raised a preliminary objection that allegations of negligence against the doctor is not permitted without impleading him as a party. The State Commission relied upon the judgment of this Commission in IV (2004) CPJ 40 (SC) wherein it was observed that "as a matter of fact any allegation of incompetence or negligence against a doctor cannot be permitted or looked into without making the doctor party in the proceedings. Following the said decision we have to uphold the preliminary objections raised by the Counsel for the opposite party and it further held that on this ground alone, the complaint has to fail." Further the State Commission went into the merits of the case by examining, the Complainant, the Managing Director of the Hospital, the Doctor who performed the surgery and also an Orthopaedic surgeon as expert witness and came to the conclusion that in the absence of cogent and reliable evidence supporting the contentions of the Complainant, the complaint fails and accordingly, dismissed the complaint. Submissions of the learned Counsel for the appellant : The State Commission has agreed with the contentions raised by the Counsel for the Nagarjuna Hospital that allegation of negligence against a doctor is not permissible without impleading him as a party on the basis of a decision of the National Commission in IV (2004) CPJ 40 (SC). But this has been over-ruled by the decision of the Supreme Court in Smt. Savita Garg v. The Director, National Heart Institute. Hence, this preliminary objection is not valid. Dr. U. Venkata Ramana who performed the surgery is sought to be impleaded as a party by him and he has also filed an affidavit in this regard. Dr. U. Venkata Ramana was examined before the State Commission. In this case, the Complainant walked to the hospital with his family members but in the discharge summary it is clearly indicated that after the operation he could not walk. Prior to the operation on 22.2.1996 the Complainant was referred to a neurologist Dr. G. Sivanarayana who did not suggest any immediate surgery and on the other hand, ''he advised - report myelogram in view of rapid deteriorating of motor power''. Complainant went to Hyderabad to get the MRI test done on 24.2.1996 and on 25.2.1996 he was re-admitted. These details are missing in the case sheet. He submitted that the operation should have been conducted by a neurosurgeon and not by an orthopaedic surgeon. MRI report did not suggest the necessity of an immediate operation. In cases of this type, surgery is not recommended. Traction is one of the options which should have been tried before going in for operation.

HE quoted from the deposition of CW 1 - Dr. Kollam Chandra Sekhara, Orthopaedic Surgeon and Assistant Professor of Gandhi Hospital : "It is true that disc collapse can be treated by traction method. It cannot be cured by replacement of hormones. In all cases surgery is not necessary." But on the other hand, Dr. U. Venkata Ramana advised immediate surgery. In the consent form for operation dated 26.2.1996, there is an interpolation to the effect that "there is no guarantee of neurological recovery. Patient may get back-ache again. It may be infected."

The State Commission has dismissed the complaint mainly on two grounds : (a) The surgeon who performed the operation was not made a party; (b) No laches on the part of the doctor and hospital. The learned Counsel for the appellant further submitted that the surgeon who performed the operation was the Director in the same hospital. Though a neurosurgeon was available in the hospital but he was not called to be present in the operation theatre. The Complainant was not informed of the risk involved and full signature of the Complainant was not obtained in the cosnsent form.

IN his deposition Dr. U. Venkata Ramana (R.W. 2) has stated that Dr. Sivanarayana did not mention specifically that surgery is required. Dr. B. Venkata Ratnam who is responsible for the management of the hospital has deposed that, it is the choice of the patient to go with neurosurgery or orthopaedic surgery. The patient has not given any letter of his choice of the doctor. Shri Venkateshwarlu has stated in his deposition that it was only Dr. Venkata Ramana in the respondent hospital informed him that he was likely to loose both the legs if immediate surgery was not resorted to. Though the operation was not conducted properly the Complainant was told that at the time of discharge that he will progressively improve and regain strength in his legs. The learned Counsel for the appellant quoted from the medical text of ''Neurological Surgery'' Vol. I page 1173 which reads as follows : "There are three clear cut indications for operative intervention : (1) a massive midline protrusion, which causes compression of the cauda equine resulting in motor and sensory paresis and loss of spincter control, required immediate operation : (2) never root compression associated with quadriceps paresis or foot drop should be operated on early (interestingly there is a spontaneous extrusion of degenerated disc material. Less often, the interspace merely seems soft on palpation, but the disc will bulge perceptibly when the table is straightened. This latter state assumes particular significance in the patient who has a small canal".

HE submitted that none of these indications were suggestive of operative intervention. HEnce, there was no need to conduct immediate surgery. Submissions by the learned Counsel for the respondent : The Advocate for the respondent submitted that in his evidence CW (I) the expert Dr. K. Chandra Sekhara has deposed that he was of the view that as per record placed before him in this case, surgery was required. Orthopaedic surgeons are competent and are trained to perform the spine surgery (Laminectomy) for which consultation with a neurosurgeon is not necessary. On going through the case sheet issued by the hospital he did not find any defect in the procedure and on perusal of the discharge summary issued by the CMC, Vellore, he did not find any defect in the procedure adopted by the Orthopaedic Surgeon Dr. Venkata Ramana. Complainant was admitted to Christian Medical College and Hospital, Vellore for further rehabilitation. Mr. Venkateswaralu is a case of paraplegia since 25.2.1996. He was gradually mobilized out of bed and made ambulant with bilateral KAFOs and axillary crutches else where. On admission he was found to have grade 2 sacral sore and sores in his toes. He was also had poor walking endurance. After conservative management of his sores he was gradually made ambulant with bilateral KAFOs and elbow crutches. At discharge he could walk 145 metres. He is made indepedent in all activities with calipers and crutches.

Section 24 of the Consumer Protection Act deals with the limitation, hence, the doctor cannot be impleaded at this distance of time as such a step would be time barred. Findings : (a) Whether the allegation of negligence against a doctor is permitted without impleading him as a party? The State Commission has held that this is not permitted based on the decision of the National Commission in III (2002) CPJ 407 (NC) upheld the preliminary objections raised by Nagarjuna Hospital that the allegations against Dr. U. Venkata Ramana without making him a party cannot be sustained.

(b) The Supreme Court in its judgment IV (2004) CPJ 40 (SC)=VI (2004) SLT 385=2004 CTJ 1009 (Supreme Court) (CP), Smt. Savita Garg v. The Director, National Heart Institute, has held that : Therefore, as a result of our above discussion we are of the opinion that summary dismissal of the original petition by the Commission on the question on non-joinder of necessary parties was not proper. In case, the Complainant fails to substantiate the allegations, then the complaint will fail. But not on the ground of non-joinder of necessary party. But at the same time the hospital can discharge the burden by producing the treating doctor in defence that all due care and caution was taken and despite that patient died. The hospial/Institute is not going to suffer on account of non-joinder of necessary parties and Commission should have proceeded against hospital. Even otherwise also the Institute had to produce the concerned treating physician and has to produce evidence that all care and caution was taken by them or their staff to justify that there was no negligence involved in the matter. Therefore, nothing turns in not impleading the treating doctor as a party. Once an allegation is made that the patient was admitted in a particular hospital and evidence is produced to satisfy that he died because 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 which is in better position to disclose that 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 by not impleading a particular doctor will not absolve the hospital of their responsibilities. Accordingly Complainant''s case does not fail merely for the reasons that he has not impleaded the surgeon who had performed the surgery as a necessary party before the State Commission. Whether he can be impleaded now as a party under the Consumer Protection Act, Section 24 (A) states that :

(c) Limitation period : (i) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arised. (ii) Notwithstanding anything contained in Sub-section (1), a complaint may be entertained after the period specified in Sub-section (1), if the Complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period: (iii) Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be records its reasons for condoning such delay.

HENCE impleading the doctor after two years from the date of occurrence of cause action is not permissible unless sufficient reasons are given. As explained earlier that non-impleading of the doctor does not absolve the hospital or doctor of medical negligence, if the complaint can be proved on the basis of the facts and records of the case. HENCE this issue has only an academic relevance : Whether Surgery was necessary : The learned Counsel for the appellant submits that Neurological Surgery Vol. 1 page 1173 that : There are three clear cut indications for operative intervention : (i) a massive midline protrusion, which causes compression of the cauda equine resulting in motor and senory paresis and loss of spincter control, required immediate operation, (ii) never root compression associated with quadriceps paresis or foot drop should be operated on early (interstingly there is a spontaneous extrusion of degenerated disc material. Less often, the interspace merely seems soft on palpation, but the disc will bulge perceptibly when the table is straightened. This latter state assumes particular significance in the patient who has a small canal''. (Emphasis supplied)

HE submitted that none of these indications were suggestive of operative intervention. HEnce, there was no need to conduct immediate surgery. HE further submitted that CW 1 Dr. Kollam Chandrasekhara who examined as an expert by the State Commission has clearly stated that as per record placed before him no surgery was required. As against this the learned Counsel for the respondent submitted that the Complainant suffered from ''cauda equine lesion with sensor level L2-S2 with motor weakness'', as diagnosed by the Neurosurgeon. Hence, surgery was required. Further he quoted the views of the expert witness CW 1-Dr. Kollam Chandrasekhara who stated that : It is not necessary that urine and passage of stool should stop as a pre-condition for surgery. I am of the view as per the record placed before him in this case surgery is required. Orthopaedic surgeon is competent to deal with spine surgery (Laminectomy). Orthopaedic surgeons are trained in spine surgery. According to him orthopaedic surgeon without consulting a Neurosurgeon can take a decision for surgery in case of disc collapse. MRI test is meant for knowing the mechanical compression and the status of the spinal cord is spinal column.

This deposition was given by Dr. Kollam Chandrasekhara, who is the Assistant Professor in Orthopaedic in Gandhi Hospital, Hyderabad and Post Graduate from AIIMS in Orthopaedic Surgery with 9 years'' experience. Further this fact has not been rebutted in his cross-examination. Further, it is clear from the opinion given by the neuro physician Dr. Sivanarayana that the Complainant was diagnosed and was suffering from ''Cauda Equine Lesion with Sensor level L2-S2 with motor weakness'', which is indicative of the need for surgery.

IN the text by Rothman & Simeon ''The Spine'', Fourth Edition, Volume I it is stated that: The significance of this entity is that it must be considered a reason for prompt surgical intervention because spontaneous neurologic recovery has not been observed. If incontinence is present, only prompt surgery can offer a chance to lessen the hazards of possible future urinary drainage problems. Similarly, sudden severe paresis or paraplegia merits prompts and generous decompression. When the symptoms are florid, careful preoperative myelography or MRI level identification should be performed on an emergency basis.

FROM the forgoing it is very clear that surgery was required. Complainant has not examined any expert doctor to support his case and also to prove that evidence given by the expert Dr. Kollam Chandrasekhara (CW 1) is baseless. Further the discharge summary of CMC, Vellore does not indicate that the surgery performed at Nagarjuna Hospital was faulty. Observation of Neurosurgeon Dr. Sivanarayana in the case records. Dr. Sivanarayana''s observations of 22.2.1996 are relevant : that the Complainant had lower back ache for one year duration and he was walking and getting relief with rest. Gradual progression of this disability in ambulation since then noted. At present he is able to walk with two persons support. More rapid deterioration of motor power for 2 days. Increase frequency of duration with hesitancy is also noted for last two days. He had advised repeat myelogram in view of rapid deteriorating of motor power he was advised MRI.

It cannot be expected that every physician or surgeon is gifted with extra-ordinary skills or they can perform miracles. What is expected of a doctor is whether the procedure adopted by the doctor is acceptable to medical profession. This point has been elaborated by the Apex Court in the case of Achutraon Haribhau Khodwa v. State of Maharashtra, I (1996) CLT 532 (SC)=(1996) 2 SCC 634 and held as follows : ''The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the Courts finds that he has attended on a patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence.''

TO prove the negligence of any doctor the complainant has to lead adequate evidence with supportive medical text. This has not been done by the Complainant. A careful perusal of the clinical notes of the hospital which runs into several pages indicate that sincere efforts were made by the hospital authorities and the doctors concerned to perform the procedure and the State Commission has rightly concluded that the Complainant though suffered a serious set back in life as ill-luck would have it, but at the same time we cannot throw the blame on RW 2 in the absence of cogent and reliable evidence supporting the contentions of the Complainant.

IN view of the above analysis we do not consider that the Complainant has made out a case of medical negligence against the doctor of Nagarjuna hospital who performed the surgery. Accordingly, the appeal is dismissed. IN the peculiar facts and circumstances of the case there shall be no order as to cost. Appeal dismissed.