Seema Rani vs ST STEPHEN HOSPITAL

THE complainant has claimed a sum of Rs. 7,93,397 as compensation for the negligence of doctors of O. P. Hospital in performing open heart surgery resulting in further complications and need for second surgery.

ON the factual matrix the case of the complainant, who is a 35-year-old young lady, is that she developed some problems like vomiting, breathlessness and other complications on 18. 8. 1996 and was shown locally to various doctors as well in G. B. Pant Hospital and was finally referred to the O. P. Hospital, where after Ecocardiogram and Doppler study, the consultant Cardiologist Dr. B. B. Chanana, opined that CMV (Closed Mitral Valvotomy) be performed, i. e. , open mitral valve without opening the heart, as this procedure would be more effective and less expensive. On depositing Rs. 50,000 the complainant was operated upon but instead of carrying out close mitral valvotomy (CMV) the cardio-specialist of O. P. hospital resorted to open heart surgery and without repairing the mitral valve, just did a valvotomy which could have been done without opening the heart and repaired mild TR without repairing the mitral valve. After discharge when the complainant was taken back to her native place in Rajasthan, she again developed problems like vomiting, breathlessness, etc. On re-checkup and re-tests she was advised a second operation at the cost of Rs. 90,000 by Dr. J. M. S. Thomas of O. P. hospital. Since the complainant''s husband is a man of moderate means and had exhausted his capacity of pay further, he consulted Dr. P. K. Goel, a private specialist and the complainant is undergoing treatment fighting all odds and suffering pain which could have been avoided, had the doctors O. P. in the first instance itself repaired both the valves. Even the doctors/cardiologists of AIIMS have re-confirmed the diagnosis that a second heart surgery is required immediately. Hence this complaint.

The O. P. has justified its treatment given to the complainant by explaining that an Echocardiogram was carried out on the complainant on 29. 10. 1996 on the basis whereof a pre-operative diagnosis of Mitral Stenosis (narrowing), Mitral Regurgitation and Tricuspid Regurgitation and Tricuspid Regurgitation was made. The complainant was advised surgery for the same. Before the complainant came to the O. P. hospital she had been treated at a number of other places without any beneficial results. Surgery was performed on the complainant by Dr. James Thomas, the Head of the Department of Cardiac Surgery in the O. P. hospital. Dr. James Thomas is one of the leading cardiac surgeons of the country and till date has performed about 6000 open heart surgeries. On examination Dr. James Thomas also found that the mitral valve was competent and did not require any repair. However, the Tricuspid valve required repair which was done. Ultimately, the complainant was discharged from the hospital on 9. 11. 1996. The complainant again came to the O. P. hospital in December, 1996 with the symptoms of vomiting, breathlessness, etc. On examination, a tentative diagnosis of mitral incompetence was made and the complainant was told that she would have to be operated for valve replacement. Mitral incompetence is a well known risk of mitral commissurotomy, which had been performed on the complainant. The complainant again required surgery because of mitral incompetence which was not because of any negligence in the operation performed upon her on 29. 10. 1996 but was a manifestation of a known risk of said operation. Medical studies indicate that mitral incompetence occurs in 2% to 5% of patients undergoing open commissurotomy (surgery in which the heart is opened) and in about 10% of those undergoing close commissurotomy (surgery in which heart is not opened ). Manifestation of a risk inherent in a medical procedure cannot be termed as negligence on the part of the doctor or surgeon. Thus second surgery was required by the complainant not because of the negligence of the O. P. but because of inherent risk in the procedure performed upon. One of the complaints made by the complainant is that closed mitral valvotomy instead of open mitral valvotomy should have been performed upon her. Closed mitral valvotomy means reducing the narrowing in the mitral valve without opening the heart and open mitral valvotomy means reducing the narrowing in the mitral valve after opening the heart. Both the procedures are medically established procedures and resort to one or the other method is taken depending upon a host of factors such as the nature of the ailment, the evaluation by the surgeon as to which of the two would be more conducive in the given case, etc. It is well settled that if a surgeon or a doctor opt for one of the two accepted procedures, it cannot be said that he is guilty of negligence. It is an established medical fact that chances of mitral incompetence are lesser with open mitral commissurotomy as compared to closed mitral commissurotomy. Further open valvotomy enables the surgeon to directly check the competence of the valve and open it better. In the present case open valvotomy had to be resorted to since the tricuspid valve had to be repaired which could not have been done without resorting to open valvotomy.

ANOTHER grievance made by the complainant is that the surgeon did not repair the mitral valve during the surgery. In this regard the O. P. contended that on the basis of investigations and clinical symptoms, a pre-operative diagnosis is made, which is always subject to the findings of the surgeon on the operation table. In the present case, during surgery the surgeon found the mitral valve to be competent and he duly recorded the same in the operation notes and there was no occasion for him to carry out and repair the same. As is apparent from the rival claims and contentions of the parties the short controversy that calls for determination is two-fold, first is whether resorting to open heart surgery was a better option than to undergo close mitral valvotomy; and second controvery is whether the surgeon failed to repair the mitral valve during the surgery?

AS regards the first controversy, the learned Counsel for the O. P. relied upon the medical literature "text Book of Surgery", Chief Editor Prof. Ab. Ahmed Hai, brought out by Association of Surgeons of India, Chapter-II, of which pertains to mitral valve incompetence, i. e. , the disease the complainant was operated upon for the second time. The observations in this regard in the aforesaid text book are as under: "mitral incompetence is a risk of mitral commissurotomy by any technique, but occurs in only 2% to 5% of patients undergoing open commissurotomy and in about 10% of those undergoing closed commissurotomy. Rarely does the newly developed incompetence requires immediate operation, but it may lead to re-operation within a few months. Mild post-commissurotomy mitral incompetence has little effect on survival or the method for metal valve replacement, but important post-commissurotomy incompetence adversely affects both. The prevalence of new important mitral incompetence has also been about 10% after percutaneous balloon mitral commissurotomy. "

In our view, the doctor who is skilled and professionally qualified to treat the patient for the disease the complainant was suffering from is the best Judge to see as to what he should do, whether the complainant was having the problem of mitral incompetence. The aforesaid literature provides that mitral incompetence is a risk of mitral commissurotomy by any technique, but occurs in 2-10% patients who undergo open commissurotomy. Thus it is a knotty case and it was for the operating surgeon to decide as to what method he should resort to in a particular case. Now we come to the second problem, i. e. , whether the surgeon failed to repair the mitral valve during the surgery or not. In this regard the learned Counsel for the O. P. has contended that the investigation report of the patient shows that the patient was suffering from mitral stenosis and during surgery the surgeon performed mitral valvotomy, i. e. , opening of narrowed mitral valve. After mitral valvotomy he conducted tests for determining whether mitral valve was competent or not and found to be competent and not requiring any treatment. This was duly recorded in the operating notes. The subsequent complication as is evident from the medical texts is a complication arising from the procedure.

LEARNED Counsel for the O. P. has contended that manifestation of complication of procedure would not be negligence on the part of the operating surgeon. The aforesaid contention does not impress us for the simple reason that the patient after discharge was taken to her native place in Rajasthan and she developed problems like vomiting, breathlessness, etc. On re-checkup she was advised operation costing Rs. 90,000 by the doctor of O. P. hospital. Had the risk of mitral incompetence been more in closed commissurotomy the aforesaid complication would have never arisen immediately after the operation, i. e. , open commissurotomy, for which the complainant paid Rs. 50,000 or so. The Counsel for the O. P. has not benefited us with any medical literature to show that the complication the complainant suffered was not because of non-repairing of mitral valve during the surgery.

IN our view it was a lapse on the part of the surgeon not to repair the mitral valve so as to avoid further surgery. Had the mitral valve been so competent as recorded by the doctor in the operation notes and had there been no need to repair the same the second surgery was not required. Foregoing reasons persuade us to return the finding that the surgeon was required to repair the mitral valve, to be on the safer side and, to avoid a second surgery and otherwise the complaint would not have arisen.

In the totality of the facts and circumstances of the case and the limited deficiency in service on the part of the O. P. we allow the complaint and direct the O. P. to pay Rs. 50,000 as compensation to the complainant.

PAYMENT shall be made within one month from the date of receipt of this order. Complaint is disposed of in above terms.

COPY of order as per statutory requirement be forwarded to the parties and thereafter file be consigned to record. Complaint allowed.