RAGHAVENDRA RAO vs Santosh J.Karmarkar

THIS appeal has been filed under section 19 of the Consumer Protection Act, 1986 against the impugned order dated 25.03.2009 passed by the Maharashtra State Consumer Disputes Redressal Commission (for short ''the State Commission '') in Consumer Complaint No. 22/2005, "Raghavendra Rao versus Dr. Santosh J. Karmarkar & Anr." vide which, the said consumer complaint, alleging medical negligence on the part of the OPs was ordered to be dismissed.

BRIEF facts of the case are that the appellant/complainant Raghvendra Rao had been suffering from urinary incontinence, i.e., continuous flow of urine since birth. He got himself treated from various hospitals during the previous years, i.e., 1983 and 1988 etc. As stated in the complaint, when he decided to approach the OP Doctor, he had complaint of numbness in the legs below ankles only, otherwise, although handicapped, he was carrying on with his normal activity and he had also attended a three -year degree course at Chennai, conducted by the Madras University from 1999 to 2002. He approached the OPs with the intention of getting treatment for further improvement in his general condition and to have the level of his disability reduced. The OP -1 Doctor working at OP -2 Hospital advised him that it was possible to have control over automatic flow of urine by conducting bladder augmentation with appendicular vesicostomy operation. The complainant along with his mother went to the Hospital on 23.09.2002 for medical check -up where certain clinical tests were conducted upon him. As advised, he got himself admitted in the OP Hospital on 05.11.2002 for the surgery as stated above.

IT is also stated by the complainant that OP -2 Hospital was a paediatric Hospital meant for treatment of children upto 15 years of age but OP -2 Hospital gave special permission for carrying out the surgery upon him by the OP -1 Doctor. The said surgery was performed on 07.11.2002 at OP -2 Hospital by OP -1 Doctor under local anaesthesia given in the spinal cord as well as under general anaesthesia. The said surgery was conducted from 11 AM to 3 PM but during the procedure, only the bladder augmentation operation was done and appendicular vesicostomy was not done. It has been alleged that following the surgery, the complainant felt numbness in his legs and even after a long time from the date of surgery, he had numbness in the region below the knees. In nutshell, after the said surgery, his general condition deteriorated, rather than showing an improvement which was the main purpose for getting the treatment from the OPs. The complainant says that the percentage of disability increased due to the medical negligence shown by the OPs. The complainant demanded a sum of Rs.41.91 lakh as compensation due to medical negligence on the part of the OPs.

IN his reply filed before the State Commission, the OP -1 Doctor stated that the complainant Raghavendra Rao, was a patient of Spina Bifida which is a complex birth defect of the spinal cord and can cause paralysis and lack of sensation of the lower limbs, bladder - urinary and bowel incontinence and several other related neurological, urological, orthopaedic and psychological problems. The management of urinary incontinence in Spina Bifida is the most challenging and difficult proposition. For treatment of such patients, three broad options are : - * enlarging the capacity of the urinary bladder - - augmentation, * Tightening of the bladder outlet - - bladder neck repairs, * Creating a new outlet continent diversion, e.g., using the appendix - called appendicular vesicostomy. It has been stated that each of these procedures can be beneficial by itself and it is not necessary to perform all of these together. The decision to exercise any one of the options is taken on case to case basis and the outcome of these operations is unpredictable. The Doctor has further stated that all the options were explained to the complainant and his mother and all pre -operative tests were done before the operation was planned. It was also explained to the complainant and his mother that specific options were to be decided during the operation. During surgery, the best surgical option for the complainant was thought to be bladder augmentation alone. As regards the other options of bladder neck -tightening and appendicular vesicostomy, these were not possible as the bladder was deep seated and the appendicular length was too short to be safely brought down and joined to the bladder. The Doctor has also stated that he is a qualified general surgeon having an M.S. Degree from the University of Bombay and has superspecialisation in the field of paediatric surgery. He has the rights and privileges of practising general as well as paediatric surgery. The Doctor has admitted that although two parts of surgery were planned, viz., bladder augmentation to increase the holding power of the bladder and appendicular vesicostomy to increase control over urine passage, but this was subject to anatomical and physiological feasibility of carrying out such operations. The surgery for increasing bladder capacity was successfully carried out but the entire examination of the patient did not permit the carrying out of appendicular vesicostomy for technical reasons.

IN so far as the type of Anaesthesia is concerned, a fine catheter was introduced into the spinal passage for reduction of the dose of general anaesthetics and the effective control of pain in the post -operative period - a process known as epidural analgesia. It is a safe and internationally accepted procedure all over the World. The Doctor has stated that after the surgery, the complainant was able to drive a scooter with side car for his mother to sit, over a distance of 80 Kms for follow -up visit. It was clear, therefore, that his complaints had diminished significantly.

REGARDING the operations done in a paediatric Hospital, the OP -1 Doctor stated that requisite permission had been obtained from the OP -2 hospital for carrying out the treatment of the patient in the said hospital and moreover, the complainant had approached this hospital of his own free will.

THE State Commission vide impugned order dated 25.03.2009 dismissed the consumer complaint after taking into account the version given by both the parties and after dealing with all issues regarding the alleged incomplete surgery, the anaesthesia given and carrying out surgery in a paediatric hospital.

AT the time of arguments, the learned counsel for the appellant stated that the medical negligence on the part of the OPs was amply proved from record because while performing surgery, informed consent of the patient was not taken, the investigations done before the surgery were incomplete and the extent of disability suffered by the patient had increased after the surgery rather than any improvement in his condition. The learned counsel stated that after medical check -up, an assurance was given to him that bladder augmentation and also the appendicular vesicostomy will be done which shall lead to improvement in his general condition. However, the OP Doctor performed bladder augmentation only for the reasons best known to him. Further, before carrying out the surgery, proper investigations were not made. The OP Doctor had planned to get sonography done, but the same could not be done, because the hospital was not equipped to perform this test. Had the sonography report been there, it would have been easy for the OP -1 Doctor to locate the bladder. It was, therefore, clear that before the surgery, neither proper planning was done nor proper diagnosis was made by the OPs. Further, the action of the Doctors in giving spinal anaesthesia also led to damage to the spinal cord. As a result of the entire procedure done, the disability of the patient which was earlier 55% had increased to 72%. A certificate issued by the office of Civil Surgeon Thane in November 2007 shows that the disability is 65%. On the other hand, the disability certificate issued by the All India Institute of Physical Medicine and Rehabilitation, Bombay on 15.01.96 shows that the disability exceeds 50%. The consumer complaint in question should, therefore, be allowed and compensation given to the complainant because his problems had increased after the surgery rather than any improvement in his condition.

IN reply, the learned counsel for OP -1 stated that before carrying out the surgery, the informed consent was taken from the complainants. A copy of the document dated 06.11.2002 with the title ''informed consent '' had been produced on record. It has been stated therein that the consequences of the said surgeries to be done under anaesthesia had been explained to the patient. It is stated, however, that the informed consent is signed by the mother of the complainant. The learned counsel also stated that as stated in their written statement before this Commission, the complainant was more active socially and he had even visited the hospital for follow -up, riding on self -driven scooter alongwith his mother. There was no new handicap in his gait and/or posture and agility. He could sit of the chair on his own without help.

THE learned counsel for OP -2 Hospital stated that due permission was granted for carrying out the said surgery in the paediatric Hospital and hence, there was no negligence of any kind on their part.

IN reply, the learned counsel for the appellant stated that as per the case record maintained by the Hospital, the complainant was having loss of sensation in both the lower limbs following the surgery.

THE OP -1, Dr. Karmarkar also appeared in person and was heard. He explained that he was a qualified surgeon and had treated many similar patients from India and abroad and in this case, the best possible treatment was given to the complainant depending upon his anatomical and physiological condition. When asked about the loss of sensation in the lower limbs, the Doctor stated that his condition had improved tremendously after the surgery was done.

WE have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. Admittedly, the complainant had been suffering from the problem of urinary incontinence since birth and according to his version, he got treatment for the same from different hospitals in the years 1983, 1988 etc., i.e., much before his treatment in the OP Hospital. In the event of his disability also, the complainant had been carrying out his studies as well as having usual activity in life. However, with a view to getting improvement in his general condition, he approached the OPs for treatment. The basic issue to be decided in the present case is whether any negligence has been shown by the OPs in treating the patient and whether the treatment made by the OPs has led to any adverse effect on the complainant.

IT is not denied that OP -1 Doctor is a qualified general surgeon having super -specialisation in paediatric surgery. It is made out from the material on record that different options were available for carrying out treatment of patients like the complainant and these were explained to the patient and his mother before the surgery. It has been stated in the document dated 6.11.2002, entitled ''informed consent '', that all possible implications had been explained to the complainant and his mother. However, the said document has not been signed by the complainant who was an adult major on that date, but it bears the signatures of his mother only. In this regard, reference is made to the Judgment of Hon ''ble Supreme Court in "Samira Kohli versus Dr. Prabha Manchanda & Anr." [(2008) 2 SCC 1]. While summarizing the principles relating to consent, the Hon ''ble Supreme Court interalia stated as follows: - "(i) A doctor has to seek and secure the consent of the patient before commencing a ''treatment '' (the term ''treatment '' includes surgery also). The consent so obtained should be real and valid, which means that : the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what is consenting to."

IN the above case "Samira Kohli versus Dr. Prabha Manchanda and Anr." (supra), the consent had been given by the mother of the patient. The Hon ''ble Court further held as follows: - "The Respondent next contended that the consent given by the appellant ''s mother for performing hysterectomy should be considered as valid consent for performing hysterectomy and salpingo -oopherectomy. The appellant was neither a minor, nor mentally challenged, nor incapacitated. When a patient is a competent adult, there is no question of someone else giving consent on her behalf. There was no medical emergency during surgery. The appellant was only temporarily unconscious, undergoing only a diagnostic procedure by way of laparoscopy. The respondent ought to have waited till the appellant regained consciousness, discussed the result of the laparoscopic examination and then taken her consent for the removal of her uterus and ovaries. In the absence of an emergency and as the matter was still at the stage of diagnosis, the question of taking her mother ''s consent for radical surgery did not arise. Therefore, such consent by mother cannot be treated as valid or real consent. Further a consent for hysterectomy, is not a consent for bilateral salpingo - ooperectomy."

IT is made out from above that the consent given by mother was not treated as valid or real consent, in the absence of an emergency. In the instant case also, there was no emergency at all before starting the procedure upon the patient and hence, it was the duty of the Doctor to obtain the consent of the patient before starting the treatment.

IT has been alleged further that the surgery was done in a pediatric hospital which amounts to medical negligence. However, this argument of the complainant does not carry any substance because he himself opted to get treated in the said Hospital. It is the version of the complainant that notice had been displayed outside the Hospital that children upto 15 years will be given treatment. It was the option of the complainant not to go to such hospital if he felt that treatment for adults could not be properly given in such a hospital.

IN so far as the surgery part is concerned, it is made out that bladder augmentation as well as appendicular vasicostomy was to be carried out as told to the complainant. The Doctor has, however, explained that all parts of his surgery were to be carried out subject to anatomical and physiological feasibility. During the course of the operation, his internal examination did not permit the carrying out of appendicular vesicostomy for technical reasons.

WE have no reason to disbelieve the said version of the Doctor. In any case, if the second part of the surgery was not done, it does not amount to an act of medical negligence by any stretch of imagination because there is nothing on the contrary to prove that appendicular vesicostomy if performed upon the patient, could have proved helpful to him.

IN so far as anaesthesia given in the spinal cord is concerned, it has been explained by the OPs that a fine catheter was introduced into the spinal cord for reduction of the dose of general anaesthetics and the effective control of the pain in post -operative period. The process is known as epidural analgesia and it is a safe and internationally accepted procedure all over the World. The basic issue, however, is that at the time of surgery, a team of qualified Doctors was present and anaesthesia was given under the direct supervision of a qualified Doctor, Supriya Gajendragadkar, having specialisation in anaesthesia. The charge of medical negligence on this score is also not proved.

IN a number of judgements given by the Hon ''ble Supreme Court and this Commission, the issue of medical negligence has been touched upon at length. The essence of these judgements is that where a degree of reasonable care has been shown as expected from a person with normal qualifications, there is no cause for medical negligence. The State Commission has quoted from Judgement of the Hon ''ble Supreme Court in "Indian Medical Association Vs. V.P. Shantha & Ors." [1995 (6) SCC 651] and observed as under: - "In the matter of professional liability professions differ from other occupations for the reason that professions operate in spheres where success cannot be achieved in every case and very often success or failure depends upon factors beyond the professional man ''s control."

IT is made out from the above order that even if success is not achieved in a particular case, it does not amount to medical negligence on the part of the professional Doctor.

IN their landmark judgement, the Hon ''ble Supreme Court in "Jacob Mathew v. State of Punjab [(2005) 6 SCC (1)], have dealt with the subject of medical negligence in great detail. The Hon ''ble Court stated in their conclusions, interalia, as follows: - "(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: ''duty '', ''breach '' and ''resulting damage" Further, the Hon ''ble Apex Court in their order in "Achutrao Haribhau Khodwa and others versus State of Maharashtra and others [(1996) 2 SCC 634]" 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 Court finds that he has attended on the 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."

FROM the facts and circumstances of the present case, it has not been established that the OP Doctor failed to perform his duties with reasonable care, skill and diligence. The charge of medical negligence against the OP Doctor is not proved as he has reasonably explained that it was his professional judgment that he did not choose to perform the second part of the surgery, looking at the anatomical and physiological condition of the patient. However, as stated earlier, on the issue of taking valid and real consent from the patient, there does seem to be deficiency on the part of the Doctor. The principles laid down by the Hon ''ble Apex Court in ''Samira Kohli versus Dr. Prabha Manchanda & Anr." (supra) make it very clear that it was the professional duty of the OP Doctor to obtain the consent of the patient himself before starting the procedure. We, therefore, feel it appropriate that the OP -1 Doctor should pay a sum of Rs.25,000/ - to the appellant/patient for his failure to obtain valid and real consent before the surgical procedure. The present appeal is, therefore, partly allowed and the impugned order passed by the State Commission is modified to the extent that the OP -1 Doctor shall pay a sum of Rs.25,000/ - to the appellant within a period of four weeks from today. There shall be no order as to costs.