RAM KARAN CHOUDHARY vs BHANDARI HOPSITAL & RESEARCH CENTRE & ORS.

This Revision Petition No.559 of 2011 has been filed by the petitioner/complainant – Ram Karan Choudhary against the order of Rajasthan State Consumer Disputes Redressal Commission, C/B at Jaipur (for Short, ‘State Commission) dated 15.11.2010 in FA No.1373 of 2006.

Brief facts relevant for the disposal of this revision petition are as follows.

The petitioner complainant suffered from pain in his back and right leg. Respondent No 3 Dr.Deepak Vangani, Consultantat Respondent No 1 - Bhandari Hospital & Research Centre advised LADD (Laser Assisted Disc Decompression) operation of L 3-4 and L 4-5, and with consent of the petitioner, performed the operation on 4.10.2002. The complaint is that Dr Deepak was negligent as he operated upon L 4-5 and L5-S-1 in place of L 3-4 and L 4-5. As the petitioner continued to suffer pain and had lost faith in the Doctor and the hospital, he got himself admitted at SMS Hospital on 10.12.2002 where he underwent another surgery. The case of the petitioner complainant is that relevant records such as the discharge summary and prescriptions post operation were overwritten to show that the operation was conducted upon L 3-4 and L 4-5 whereas in fact it was not.For this negligence, complainant has demanded a total sum of Rs. 4 lakh from the respondents/opposite parties comprising Rs.1,50,000/- for costs of medical treatment, Rs.2 lakhs as compensation forphysical disability suffered, and Rs.50,000/- as compensation for physical and mental pain. The petitioner complainant had served a legal notice dt 17.02.04 on the respondents opposite parties but this was ignored. As per the petitioner complainant, prior to sending legal notice, he had approached the hospital and met with the Managing Director. However, they offered to pay him Rs.5,000/- which he refused to accept.

The respondents/opposite parties contested the complaint successfully before the district forum. They submitted that the operation had been performed on the right areas after a careful appraisal of the MRI report brought by the petitioner. They submitted that LADD was advised as the proper course of treatment, arguing that this method had several advantages vis a vis open surgery. Accordingly, with the consent of the petitioner complainant, LADD was successfully performed on L3-4 and L4-5, as clearly evidenced from the operation notes maintained by Dr. Deepak. They further submitted that the petitioner’s situation had improved post LADD operation on 4.10.02 :the right leg could be raised 60 degree as against 30 degree earlier, and similarly, left leg could be raised 90 degree as against 60 degree earlier. They explained and argued further that the operation done later on 12.12.02 at SMS hospital was an open surgery of L 3-4 and L 4-5, quite different and therefore non-comparable with the LADD operation done by them.Thus, there was no deficiency in service on the part of the respondents/ opposite parties no.1 to 3.

The District Forum on consideration of the pleadings before it, briefly brought out in paras above, dismissed the complaint.   It found that the overwriting in the Discharge summary as also in prescriptions of Dr. Deepak dt 10.11.02 and 24.11.02 was simply a case of  a human error rectified   and further found support in the Post Laser Therapy Report  dated 28.4.2006  issued by O.K.  Diagnostic Research Centre Pvt. Ltd. which confirmed  laser therapy at L 3-4 and L 4-5 and went on to note the marginal improvement in the spinal canal dimension at these disc levels.

The State Commission in its  order dt 15.11.10 considered the contrary positions taken by the two member bench of the State Commission. While Sri G.S. Hora, Presiding Member

dismissed the appeal, Sri Sikandar Punjabi, learned Member allowed the appeal, directing payment of Rs.1,50,000/- for financial loss, Rs.20,000/- for mental agony and Rs. 5,000/- as cost. Learned Member Sri Shashi Kumar Pareek, on this matter being referred to him by the Hon’ble Chairman, agreed with the Hon’ble Presiding Member, and on the basis of opinion of majority, dismissed the appeal.

Being aggrieved with this order, the petitioner/complainant has filed this revision petition before this Commission.

Heard learned counsels for both parties.

Learned Counsel for the petitioner/complainant took me through the entire case records pertinent to the complaint, arguing essentially that a wrong had been committed by the respondent/opposite party no. 3 in operating L 3-4 and L 5-S1 instead of L 3-4 and L 4-5 which amounted to gross negligence. His main argument was that that this fact was sought to be concealed by overwriting to change L 3-4 and L5-S1 to L 3-4 and L 4-5. He sought to prove this by referring to the discharge summary dt. 5.10.02 and prescriptions dt. 12.10.02,

11.02, 24.11.02 and 8.12.02. Thus, while each of the following viz. the discharge summary, prescriptions dt 10.11.02 and 24.11.02, had L3-4 and L 4-5 overwritten over L3-4 and L 5-S1, two documents viz. prescriptions dt 12.10.02 and 8.12.02 had no such overwriting.The prescription dt. 12.10.02 clearly reads as L 4 and L5, the one dt. 8.12.02 reads asL3-4 and L 4-5. The argument advanced is that when the petitioner complainant visited Dr.Deepak on 8.12.02, he realized his mistake and corrected all the documents to show L3-4 and L4-5. Since the prescription dt. 12.10.02 was not physically available with the petitioner on that day, this one document remained as it is, showing L 4 and L5. And it is this one document that goes to prove that Dr. Deepak had deliberately and consciously sought to conceal evidence of wrong doing on his part, in having operated upon L 4-5 and L 5 S1 instead of L 3-4 and L 4-5. Thus, since a wrong operation was performed, the learned counsel argued for upholding the order of Hon’be Member Sri Punjabi and considering enhancing the compensation amounts awarded.

Learned Counsel for the respondents opposite parties drew attention to the pre and post operation MRI reports. He argued that the decision to go for LADD was based on MRI report dt. 27.09.02 which called for action on L3-4 and L4-5. This was done. There was no mistake in this. He furtherargues that the post operation MRI report dt. 9.12.02 confirms the improvements in the operated areas viz. L3-4 and L4-5. According to him, this is also confirmed by the discharge summary report dt 5.10.02 which records theSLR of both the legs pre and post operation and which clearly shows an improvement in right leg from 30 to 60 degree and in the left leg from 60 to 90 degree. He also highlighted the fact that the LADD was considered as the proper course of action based on the information available as against open surgery, and that this LADD was successful. He admitted upfront that there was an error in the discharge summary which was rectified the moment it came to Dr. Deepak’s notice.However, there was no error in performance of the operation.

The entire matter hinges on whether the LADD had been performed on the correct areas or not? The Counsel for the petitioner complainant relies on the fact of overwriting to establish that the operation was performed on L4-5 and L5 –S1. The Counsel for the respondents admits overwriting upfront, arguing simply that it was done when the mistake was discovered and that is all that there is to it. While the learned counsel for the petitioner complainant makes out the case that the petitioner had to resort to another hospital within two months of treatment at the respondent opposite party hospital because of wrong operation and continued suffering, the respondent’s case is that LADD was different from open surgery and therefore the mere fact that the complainant sought treatment elsewhere does not prove that the LADD at the respondent hospital was medical negligence.

The State commission, in its order has observed that-

“At SMS, treatment was done with open surgery which gave more relief to the complainant. It does not mean that there was any shortcoming in the Laser Therapy by defendants because Laser Therapy cannot give so much relief, which open surgery can.”

I am inclined to agree with the State Commission.The case of the petitioner complainant rests entirely on the alleged fact of overwriting on the discharge summary report and some of the prescriptions. This overwriting as an attempt to cover up the wrong operation is sought to be established beyond doubt by producing one prescription dt. 12.10.02 which was not overwritten. It was not overwritten because it was not produced before the Doctor. Had it been produced, he would have overwritten this prescription also, goes the argument. This central assertion of the petitioner complainant’s case is admitted upfront and described simply as a human and inadvertent error by the respondents. I find force in this argument that it was an inadvertenthuman error. One, the overwriting is very deliberate and very clear, the kind that is done to correct an error apparent rather than cover track for which use of fluid or careful artistry to fudge is more likely. Two, I also find force in the argument advanced that if this overwriting is what caused doubt in the mind of the complainant, it would surely have been mentioned in the legal notice dt 17.02.04 served upon the respondent hospital. The argument advanced that this was not mentioned in the legal notice because it was not necessary does not really wash.

Finally, this matter has been examined beyond the allegation of overwriting and possible manipulation ofoperation notes by the District Forum which called for MRI reports post LADD and pre –open surgery at SMS hospital and found conclusively that LADD had indeed been performed on the required areas and had resulted in improvements too, thus establishing that there was no medical negligence bythe respondents/opposite parties .I agree.

In view of the discussion above, there being no apparent error of fact or law in the well-reasoned order of the State Commission, and the District Forum, the revision petition is dismissed. No order on costs which the parties may themselves bear.