Raj Bhalla vs Vimhans

RAJYALAKSH MI Rao, Member -This complaint is filed by Smt. Raj Bhalla, aged about 70 years praying for direction to the opposite party -VIMHANS, a unit of Dr. Vidya Sagar Kaushalya Devi Memorial Health Centre, New Delhi to pay compensation of Rs. 64,50,102, to her for the medical negligence on its part and the unfair trade practice adopted by it while giving treatment to her. The break up of the claim is given hereunder: 1. paid by the complainant to the opposite party. Rs. 2,48,852.00 2. Compensation for the expenditures already incurred and to be incurred for the physiotherapist, attendants, etc., calculated @ Rs. 950.00 per day and Rs. 3,46,750.00 per annum for 15 years from the date of leaving from the hospital on 20.11.2000. Rs. 52,01,250.00 3. Damages, mental tension and costs, etc. Rs. 10,00,000.00 Total Rs. 64,50,102.00

Apart from the total sum of Rs. 64,50,102, complainant claimed interest @ 12% per annum on the amount of Rs. 2,48,852 spent by complainant from the date of filing of the complaint till realization.

FACTUAL matrix giving rise to the complaint is that Smt. Bhalla developed some abdominal waist pain and numbness in her foot in August 2000 and got herself examined at M/s. Electro Neuro Diagnostic Centre, New Delhi. Report of electromyography test conducted on her for nerve conduction study showed an impression of peripheral neuropathy with bilateral rediculopathy or lumbar canal stenosis. It was also indicated in the report that suffering of the complainant was due to her advanced age. She consulted her family doctor, Dr. Ashok Khurana, on 25.8.2000 who advised her to visit the opposite party hospital for medical advice from Dr. A.K. Banerjee. Dr. Banerjee advised and recommended her to get advance surgery for which she was not inclined to. She explained her status of diabetes and hypertension to Dr. Banerjee and requested him to suggest any alternative remedy such as some medicines.

THEREAFTER , she again visited Dr. Banerjee on 22.9.2000 with development of same waist pain and increase in numbness in foot. She was referred to Dr. Ajay Sinha, a Physician for getting his clearance to undergo surgery and after he permitted, she got herself admitted in the opposite party -hospital on 25.9.2000. She was not inclined to go for surgery but she was not given any option. On 1.10.2000, doctors of the opposite party -hospital carried out operation for L -4 -5 -lumbar canal stenosis with L -4 -5 disc prolapse on 3.10.2000. She was discharged on 10.10.2000 with assurance that she will not suffer again with the same waist pain and numbness again. For removal of suture, she was advised to visit the opposite party again on 14.10.2000 which was also carried out accordingly. However, in spite of the operation, she was suffering as the operated portion of the body got infected. It is alleged that she was taking the prescribed medicines and was staying in a hygienic atmosphere in a posh locality in Delhi. Despite assurance given by O.P. the pain did not disappear and instead it started increasing with numbness spreading from foot to entire leg. Her health started deteriorating and she again visited the opposite party -hospital on 21.10.2000. She was advised to get herself admitted in the opposite party -hospital again. It is alleged that she was continued to say in the hospital for a prolonged period because the opposite party -hospital wanted to fill up the occupancy of the hospital accommodation and charged unnecessary medical bills from her. During her stay from 21.10.2000, doctors of opposite party hospital did not attend to her and did not bother to treat her properly. She developed vomitting, lost her appetite and became virtually paralised confining herself to bed. She alleged that opposite party failed to heal the operated portion with medicines. It is alleged that opposite party -hospital did not render services as promised to the complainant and instead started experimenting treatments on her at their whims. Her life has been reduced to getting only physiotherapy done which is what she is doing presently. She is spending Rs. 250 towards charges of physiotherapist; Rs. 350 towards conveyance to visit him and Rs. 250 to the personal attendant. Complainant served a legal notice dated 9.11.2001 on opposite party -hospital demanding the amount that has already been paid by her along with cost and compensation which was replied by the opposite party -hospital by their letter dated 8.12.2001 denying the allegations made therein and declining the complainant''s requisition. Hence, the present complaint was filed by the complainant. Opposite party -hospital contested the complaint by filing reply. It is contended that the complainant had falsely alleged that no care, precautions or preventive steps were taken by the opposite party. It was her old age coupled with serious ailments like diabetes and hypertension due to which there was slow progress in her recovery. It is stated that neither any assurance nor any indemnity was given by the opposite party to the complainant of her cure permanently after the operation. Her family doctor, Dr. Khurana, concurred with the advice of opposite party. Opposite party -hospital gave right treatment to her and she never complained uneasiness during the course of treatment. Dr. Rahul Gupta, Gasteroenterologist and Dr. Ajay Sinha, Physician, examined her. During her stay after 20.11.2000 she was examined by Professor (Dr.) S.M. Tuli, Senior Orthopaedic Surgeon and Dr. (Col.) M.L. Suri, Neurologist, several times and both the doctors concurred with the line of treatment given by opposite party -hospital. During her stay she was given services of Dr. Hemapriya, Accupressure Specialist and Dr. Monika Kumar, Psychologist to counsel the complainant. Dr. A.K. Banerjee, who is a renowned Neurosurgeon discussed the matter with relatives of the complainant number of times during the course of discussion during the treatment. Her ESR was 55 on 20.10.2000 which was controlled when she was in the hospital and brought down to 29 and remained so upto 3.10.2000. Thereafter, on 5.11.2000, it jumped to 57 -55 and immediately the treatment was changed and whole body scan was advised by the doctors of the opposite party -hospital. Body bone scan was also done at Diwan Chand Imaging Centre. Antibiotics were changed for the control of ESR and vomiting feeling. On 24.10.2000, MRI -CS was done and on 2.11.2000, the whole body scan was done.

INTERROGAT ORIES were exchanged between the parties and the same were also replied to and are placed on record too.

WE have heard Mr. Saurabh Banerjee for the complainant and Mr. Rajesh Mahna for the opposite party.

MR . Banerjee argued that the opposite party -hospital did not supply the complete medical record to the complainant and withheld part of it. Complainant, therefore, was unable to get expert evidence or even for her own knowledge has no idea of the kind of treatment given to her and she was completely in dark regarding what has been done by the opposite party. He argued that she is made to use a walker all her life as she is suffering all these years due to negligence of opposite party -hospital. She paid the entire amount as required by the opposite party -hospital but she got deficiency in service/medical negligence from it, who promised that she would be completely alright. Opposite party -hospital never explained as to why she was operated at L -4 -5 whereas the report showed L -5/S -1 bilateral rediculopathy or lumbar canal stenosis.

MR . Mahna for the opposite party -hospital submitted that after clearance from Dr. Ajit Sinha for operation on 2.10.2000, Dr. Parul gave the report of cardiac estimation. After those clearance doctors of opposite party -hospital did corrective advanced surgery with medication making sure that sugar level and blood pressure of the complainant were controlled when the complainant was diagnosed that her nerves at L -4 and L -5 level are being stressed as per clear symptoms and the finding recorded by Dr. Hansraj in his report dated 9.8.2000 which had the following observations: "(a) L5/S1 motor shows a polypheria and a few fibrillations. (b) Peripheral Neuropathy with L5/S1 Bilateral Rediculopathys or Lumbar Canal Stenosis. (c) The Graph of Nerve clearly indicated that the nerves are getting affected at various level which is causing stress at L5/S1 level and signifies that there is significant mechanical pressure for which corrective surgery should take place."

LEARNED Counsel explained in his written submission what is lumber disease and what is the method of treatment, which is useful to reproduce is here as under.: "Lumbar Disk Disease -This is a common cause of chronic or recurrent low back pain. Disk disease is most likely to occur at the L4 -L5 and L5 levels, but upper lumber levels are involved occasionally. The cause is often unknowns; the risk is increased in overweight individuals. Degenerations of the nucleus pulposus and the annulus fibrosus increase with age and may be asymptomatic or painful. The pain may be located in the low back only or referred to the leg, buttock or hip.

The position of spinal segment relative of the vertebras are different. The 11th thoracic spine overlies the 3rd lumbar segments and 12th thoracic spin is opposite the 1st sacral segments. Lumbar spinal stenosis describes a narrowed lumber spinal canal. When severe, neurogenic claudication, consisting of back and buttock or leg pain induced by walking or standing and relieved by sitting, can occur. Spinal stenosis can be acquired congenital lying down, or due to combination of the two causes. Congenital forms are characterized by short, thick pedicles that produce both spinal canal and lateral recess stenosis. Acquired factors that may contribute to spinal stenosis include degenerative disease/injury. Indications : There are four indications for intervertebral disk surgery : (i) progressive motor weakness from nerve root injury demonstrated on clinical examinations or EMG, (ii) bowel or bladder disturbance or other signs of spinal cord compression, (iii) incapacitating nerve root pain despite conservative treatment for atleast four weeks, and (iv) recurrent incapacitating pain despite conservative treatment. The latter two citeria are more subjective and less well established that the others. Surgical treatment should also be considered if the pain and/or neurologic findings do not substantially improve over 4 to 12 weeks.

Treatment: Treatment options include surgical decompression, sometimes urgently in an attempt to restore or preserve motor or sphincter function, or palliative radiotherapy or chemotherapy for metastatic tumors. Surgical therapy is considered when medical therapy does not relieve pain sufficiently to allow for activities of daily living or when significant focal neurologic signs are present. Between 65 and 80% of properly selected patient treated surgically experience 75% relief of back and leg pain. Upto 25% s develop recurrent stenosis at the same spinal level or an adjacent level 5 years after the initial surgery; recurrent symptoms usually respond to a second surgical decompression."

LEARNED Counsel submitted that the risk after the operation is inherent as per medical literature given at page 11 of the written submission which confirms: "Infection in the disc space following surgery is a well recognized entity (2, 5, 7). Dinakar and Balaparameswara Rao (1) reported an incidence of seven percent of disc space infection in 300 lumbar disc operations. It is likely that after disc surgery, some cases may develop a mild infection which might be responsible for the delayed relief from pain, but spontaneously resolves later. It is usually not associated with post operative woud infection. The original wound heals without any trouble, the disc space infections developing later. It is claimed that when expensive curettage is done and the bone surfaces bleed, the likelihood of infections is less than in those cases where the curettage was confined to the disc tissue."

LEARNED Counsel stated that on the basis of the medical literature, which supports the treatment that has been given to the complainant, the operation is a corrective surgery which was successfully and rightly performed by the team of doctors of opposite party -hospital; that the treatment given is a recognized treatment and; there is no expert evidence that has been led to show any instance of negligence in the complaint. Learned Counsel for the opposite party -hospital further submitted that the complainant was given all the records within 24 hours from demand and that it is the complainant who withheld some of the record and did not produce it. The corrective surgery that has been done is based on the complainant''s report and is as per norms of medical text. Our Findings:

WE have seen the complainant, although at the time of arguments she was not present, and we have seen her coming with a walker but we noticed that she was mobile with the help of a walker. In our view, there are three issues which have to be decided in this matter: (a) Whether medical record has been withheld by the opposite party, as alleged? (b) What is the medical negligence that has been attributed to opposite party -hospital that they have not done what they ought to have done? (c) What was the medical negligence or deficiency in service that they are liable to under the medical jurisprudence? And (d) If there is any negligence what should be the quantum of compensations?

AS far as the issue (a) of medical record is concerned we agree with the submissions made by the opposite party that the entire medical record was given to the complainant because most of it has been submitted by the complainant herself. If the complainant felt that some record was missing, she could have sent a notice to the opposite party at any given time seeking for more information which has not been done. The complaint has been filed in 2002 although she has actually undergone this surgery in 2000. In so many years she made not attempt to get the record from the opposite party either by a letter or a notice. Even during the proceedings in this Commission she has no filed any application seeking a direction from the Commission to summon the record from the opposite party. This argument by the complainant at this late stage seems like an afterthought and hence this allegation is not justified.

AS for issues (b) and (c), we find that in the entire complaint there is no whisper of actual medical negligence or deficiency in service attributed against the opposite party as to what ought to have been done as per the medical text or what should have been done by opposite party that was not done and due to that lapse it caused irreparable damage to her. The medical text books clearly indicate that those are problems arising out of old age, diabetes and hypertension which the complainant was having. It is only a corrective advance surgery that has been undertaken by the opposite party as per the guidelines of the medical text books. The opposite party has done whatever they could do with the knowledge of the problems that she is having and considering that she suffers from diabetes and hypertension, they had controlled these parameters at the time of operation. He age factor was always the prime consideration throughout her treatment, which cannot be followed by any medical standard that they have not done correct surgery or corrective treatment when she had infection.

WE do not find any negligence on this count on the part of the doctors. The complainant has not mentioned anything as to what the doctors should not have done. No negligence against doctors is being averred regarding the corrective surgery or wrong treatment given to the complainant to treat the infection at the post -operation stage. Surgery has been conducted on the basis of the report and the opposite party explained through medical literature showing how when the nerves are pressed and stressed at L -4 -5, L -5/S -1 situations which are interconnected and accordingly taking these factors into consideration surgery was performed. The complainant has not filed any expert evidence from any doctor or medical text references to prove negligence against the opposite party. She could have at least got some letter or a noting from her own family doctor, Dr. Ashok Khurana to support her case that she has suffered due to negligence of opposite party. Since there is no medical negligence or deficiency in service on the part of the opposite party the question of compensation does not arise.

THIS is a sheer waste of time and energy to one and all and specially causes harassment to doctors and hospitals to continuously attended to these proceedings specially when the complaint is filed on baseless allegations. When a case is filed against the doctors and hospitals some reliable evidence or medical text book references or anything else that could support the complaint are required to be produced and in the present case the complainant did not justify the complaint. In our view, normally such complaints should be dismissed with cost. We are restraining ourselves from putting cost on her considering the facts that the complainant''s age is over 70 years. In view of the aforesaid discussion the complaint is dismissed.