RAMKESH (DEAD) THROUGH ITS LRS S/O SHRI SIDHARI RAM vs DR. R.N. SRIVASTAVA & ANR

This first appeal has been filed under Section 19 of the Consumer Protection Act, 1986 by the complainants against the order dated 02.08.2007 passed in Complaint Case No. 52/SC/2000 by U. P. State Consumer Disputes Redressal Commission, Lucknow (hereinafter referred as ''the State Commission'') whereby the State Commission allowed the complaint and directed the opposite party No. 1 to pay an amount of Rs.5,00,000/- to the complainants towards damages, failing which, opposite party No.1 was directed to pay 10% interest to the complainants.

Shri Ramkesh, since deceased, (hereinafter referred as a patient) was suffering for the problems of pain in his knees since 1998. He consulted a local doctor, namely, Dr. R. K. Singh of Kanpur/OP 2. OP 2 treated him for some time and prescribed some medicines. The patient got lot of relief and was relieved of the pain. Thereafter, in order to walk freely and get rid of the malady, the patient contacted Dr. R. N. Srivastava/OP 1. OP No.1/Dr. R. N. Srivastava suggested MRI test at Raj Scanning Centre. However, OP 1 performed spinal surgery instead of knee surgery by which his both legs were became paralysed. During post operative period, the father of the deceased patient requested OP 1 for opinion of Dr. Mazhar Husain, the specialist, but OP 1 denied and discharged him with the direction to show any doctor for consultation on 9.11.1998. His condition became deteriorated day by day. He incurred about Rs. 4,50,000/-. He could not attend the business because of the operation done by OP 1, which crippled his life. For the alleged medical negligence, the complainant/patient, Shri Ramkesh filed a complaint before the State Commission and prayed for compensation of Rs.11,10,000/- from the OPs. During the pendency of the case, the complainant/patient, Shri Ramkesh died. Therefore, his wife, Smt. Sheela Devi and minor daughter, Kumari Puja were impleaded as the complainants.

Before the State Commission, Dr. R. N. Srivastava/OP 1 denied all the allegations through the written version. He pleaded that as per MRI report dated 28.8.1998, the patient was suffering from cordedema/Myelomalacia i.e. degenerating disease of spinal cord and there was very little chance of recovery. Therefore, performing said operation, the cord degeneration process may be stopped or it will not progress. He submitted that the treatment was done with care and caution. The other MRI report date 17.9.1998 filed by the complainant does not suggest that due to operation, there was a spinal cord damage. There is no medical record in this regard also. He has consulted the famous surgeon, Mr. Mazhar Husain on telephone in presence of his father. Dr. Mazhar Husain also suggested that there is very little chance of success after operation yet endeavor should be made to release the pressure on the spinal cord. The operation was uneventful. The collection of blood from the side of operation was evacuated by opening the stitches.

After considering the evidence of both the parties, the State Commission dismissed the complaint.

We have heard the learned counsel for both the parties, perused the medical record and the relevant MRI report. The complainants'' main allegation was that OP 1 was an Orthopedic Surgeon. He was devoid of experience to operate spinal cord, which is most sensitive part of the body. It was related to nervous system. Therefore, the operation could have been performed by a competent neuro surgeon only. The main crux of the matter is whether the OP 1 was negligent while taking decision and conducting the spinal operation ? It is an admitted fact that Dr. Srivastava had conducted the operation without calling Neurosurgeon. As per the report dated

8.1998, the patient had serious problem in his left knee. The MRI was suggestive of patient suffering from Cord Oedema/Myelomalacia. The finding also revealed ''Degenerative Small Postero-Central Disc Protrusion''. Subsequent MRI taken on 17.9.1998 revealed same findings. Thus, on perusal of both the reports, it is clear that it was a case of degeneration of disc. and disc. protrusion and involvement of Cord Parenchyma from D1/D2 to D11/D12 was also there. For the convenience, the relevant part of both the MRI reports are reproduced as below:

(i) MRI report of Raj Scanning Ltd. dated 22-08-1998

IMPRESSION

FINDINGS REVEAL DEGENRATIVE SMALL POSTERO-CENTRAL DISC. PROTRUSION AT D3/D4 & D8/D9, CAUSING FOCAL INDENTATION OVER THE THECAL SAC & SPINAL CORD

THICKENING OF LIGAMENTUM FLAVUM WITH ANTERIOR BUCKLING AT D6/D7, ON THE LEFT SIDE CAUSING FOCAL IDENTATION OVER THE ADJACENT THECAL SAC ALONG WIT CORD PARENCHYMAL T2.

HYPERINTENSITY WITHOUT ANY ABNORMAL THICKENING EXTENDING FROM D3/D4 TO D9/D10, SUGGESTIVE OF CORD OEDEMA/MYELOMALACIA.

ADV. CLINICO PATHOLOGICAL CORELATION.

(ii) The post surgical MRI was done on 17-09-1998 at Sheela Memorial Hospital and Diagnostic Centre Ltd., Lucknow. The impression is reproduced as below:

IMPRESSION

F.U.C. OF COPRESSIVE CORD PARENCHYMAL PATHOLOGY (AT D3/D4 AND D8/D9) WITH CORD OEDEMA/MYELOMALACIA FROM D3/D4 TO D9/10 (DATED 22-08-1998)

PRESENT STUDY SHOWS:

DEGENERATIVE/DISCOGENIC FOCAL STENOSIS OF THE THECAL SAC AT D3/D4 WITH ENTRAPPED CORD.

BUCKLED LIGAMENT AT D6/D7 AND D8/D9 CAUSING MILD INDENTATION OVER THE THECAL SAC.

LONG SEMENT T2 HYPERINTENSITY IN THE CORD PARENCHYMA FROM D1/D2 TO D11/D12 WITH PREDOMINENT INVOLVEMENT OF THE CENTRAL GRAY MATTER.

AREA SUGGEST INFLAMMATORY CORD PARNCHYMAL DISEASE-MYELITIS

EVIDENCE OF LAMINECTOMY, WITH THICKENING OF SOFT TISSUES/SCAR.

AD - REVIEW WITH CLINICAL FINDING AND PREVIOUS RADIOLOGICAL RECORDS.

We have perused the medical literature on Myelomalacia. It revealed as under:

"Myelomalacia is a very serious disease. The infirmity in spinal cord may be due to various factors particularly the insufficient blood supply ( www.steady Health.comp.)

"Melomalacia is known as softening of the spinal cord which has been injured and there has been loss of tissue and could be the result of insufficient blood supply. This condition of insufficient blood supply may be caused by an obstrucito of the spinal cord vessels (thrombosis, embolism) or spinal cord compression. Whatever injures the spinal cord could cause myelomalacia, Myelomalacia may be focal or diffuse; the diffuse form is typically associated with cranial migration of neurological signs and is often fatal. Softening of the spinal cord presents an unavoidable indication of surgery. You asks the experts about the possible treatments for this condition, but as far as I know, it can be fixed by surgery only."

After perussal of pre and post surgical MRI reports and the medical literature, in our view OP 1 was a Consultant Surgeon incharge of spinal cord injury unit, Department of Orthopedic Surgery, King George Medical University, Lucknow since 1994 and he had vast experience to treat spinal cord disorders and spinal surgeries. As per literature from Campbell''s Operative Orthopedics (Ex. A), a Neuro surgeon or an Orthopedic surgeon can perform spinal surgery. By the investigation and MRI, it is proved that it was the case of Myelomalacia, due to compression of long segment of spinal cord, therefore, surgical decompression was only treatment option. OP 1 performed surgery for decompression of the cord i.e. Laminectomy. The patient did not follow the instructions after surgery which resulted in bleeding and formation of Hematoma, which subsequently caused of further compression of the cord. Thus, it was not due to negligence during performing the surgery.

It is known that "No cure is not a negligence". In the instant case, no cure was not due to any negligence of doctor. In this context, we rely upon the judgment of Hon''ble Supreme court in Jacob Mathews Case (2005) 6 SCC 1 , wherein it was observed by Hon''ble Supreme Court as under :-

"When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions."

On the basis of medical literature and test reports, we do not find that the cause of spinal injury was due to the act of OP 1. It is necessary to consider that, this case pertains to year 2000. OP 1 was a competent surgeon. In the past and also even today, most of orthopedic surgeons having experience in spinal surgery efficiently perform the spinal surgeries. There are no stipulated regulations either from MCI or from Govt. of India in this context. The patient suffered the effects of myelomalacia, it was not due to negligence of doctor.

We do not find any illegality, irregularity or jurisdictional error in the order passed by the State Commission, which may merit interference in the exercise of appellate jurisdiction. Hence, the first appeal is hereby dismissed. The parties are left to bear their own costs.