SURENDRA NATH SINGH vs S C Tandon

THIS complaint under Section 17 of the Consumer Protection Act has been filed by Surendra Nath Singh son of late Jaideo Singh arraying Dr. S.C. Tandon, M.B.B.S., Fracture Clinic, Mahmoorganj, Varanasi as opposite party.

AFTER filing this complaint the complainant expired and he was substituted by his wife and sons. It has been alleged in the complaint that the complainant was feeling pain in his waist. Dr. Katiyar after his examination referred his treatment to Dr. Tandon and Dr. Agarwal. Dr. Tandon opined for operation and demanded the expenses. The complainant was admitted to Dr. Tandons Fractures clinic on 15.8.1996. He was assured by Dr. Tandon that he will be cured and will go to his home after 15/16 days. Before operation he was capable of walking. The operation of his spinal cord was performed on 16.8.1996. After operation the organ below the waist upto the feet became senseless. The younger brother of the complainant Narendra Nath Singh told the condition of the complainant to Dr. Tandon who further assured him that this is the normal situation and after 2/3 months complainant will be all right. He confronted Dr. Tandon about his earlier assurance that he will be all right in a fortnight. Dr. Tandon could not give him any suitable reply. Dr. Tandon relieved him after 15 days of the operation and advised him for physiotherapy from Dr. Prakash Punj and contacting Dr. Tandon on regular intervals. He acted according to Dr. Tandons advice but no improvement was there from physiotherapy and weekly he used to contact Dr. Tandon also and paying him fee @ Rs. 100. Dr. Tandon further assured that his is normal situation and the patient will be all right within 4/5 months. When no improvement was there after six months then Dr. Tandon advised him to wait for one year and after a lapse of one year Dr. Tandon advised him for M.R.I. and said that there is some complication. He also advised for taking medicines and regular consultation with him. He used to travel from his native place Bhabhua (Bihar) on a hired car for consulting Dr. Tandon and used to pay Rs. 100 weekly. He raised his grievance that he has become disabled and crippled for the whole of his life and he is forced to attend the call of nature such as urinating and passing of bowls on the bed itself. On 31.10.1997 he got examined himself by Dr. Motiyani in Delhi and after that by Dr. Poddar in Varanasi. Both of them opined that without M.R.I. test no Doctor should open spinal cord. He further alleged that Dr. Tandon was no competent to treat him but concealing all the facts only to satisfy his greed Dr. Tandon opened his spinal cord without proper care and precaution and made him disabled for the whole of his life. Dr. Tandon should have suggested that since he was not capable of doing operation, the operation could be performed at Delhi or Bangalore. Dr. Tandon is guilty of criminal negligence and cheating. Apart from being disabled the complainant has suffered mental torture and financial expenditure and for that he has claimed Rs. 25 lacs for his mental torture and financial loss and Rs. 20 lacs for his disability.

DR . Tandon in his written statement denied the allegations made against him and further pleaded that the Fractures clinic is professional nursing home of Dr. K.P. Agarwal and when required he provides his services to the clinic. The period about the pain in the waist has been concealed by the complainant. His disease was so much aggravated that he was at the stage of disablement and below his waist the condition of serious disablement involved. The disease is called compressive Myelopathy which is clear from spinal cord tumer (D -9, D -10). Before consulting the opposite party the complainant consulted Dr. Katiyar a Neuro Surgeon of repute and he got the information on 10.8.1996 from Dr. Katiyar about the gravity of the disease and requirement of surgery, when the complainant met Dr. Tandon. The examination report clearly gave indication that his thorosic cord was heavy and under abnormal pressure which was a clear indication of spinal tumer which is clear from the test report. It was also clear from Myelogram plus L.T. test on 10.8.1996 that the spine of the complainant was under absolute pressure and in this circumstance the only alternative was operation in 24/48 hours. He also alleged that when the complainant came to him on 11.8.1996 for medical consultation he was not capable of walking without any support and his brother Kripa Shankar Singh and others were supporting him in walking. Due to thickening in the spinal cord and pressure the nervous system makes a person incapable of sensitivity and due to the long period the organ below the waist was incapacitated. The only alternative was surgery but the surgery is not a sure treatment to remove the disease. Only the risk of surgery can be taken and after giving thoughtful consideration of those problems which were disclosed to the complainant he himself came on 15.8.1996 and requested for surgery. Further risk was disclosed to him and after giving thoughtful consideration the complainant and his brother had given consent for operation and signed the consent letter. In his written statement Dr. Tandon mentioned his qualification that from K.G.M., Lucknow he got M.B.B.S M.S. Surgery and M.S. Neuro Surgery Degree and practised in K.G.M.C. From 1979 to 1985 he was Lecturer in Kashi Hindu Vishwa Vidyalaya, from 1985 to 1991 in Akhil Bhartiya Ayurvigyan Sansthan he was Reader in the Department of Neuro Surgery and from 1991 he is providing services to Fracture Clinic, Varanasi. For 24 years he is established Neuro Surgeon of repute and his papers have been published at National and international level. He is also invited for talks in foreign countries and under his guidance research work of spinal injury is being conducted. He pleaded that this is a baseless contention that without M.R.I. No operation of spinal cord should be conducted. The test reports before operation, cords of the spinal cord under pressure due to spinal tumer were identified and successfully the operation was conducted. After operation there was no spinal infection nor the pre -operational pressure was enhanced. He never gave any guarantee for complete cure. The risk of loosing the strength in the legs were already disclosed to him. The complainant had already lost the strength in the legs and he was disabled. It was also disclosed to him that the operation is only alternative but it was not necessary that he will be completely cured. He has also pleaded that Dr. Motiyani and Dr. Poddar are Urologist and Neuro Physician. Urology, Uro surgery, Neurology and Neuro surgery are two different fields of the medical science. He has asserted that he operated successfully. He denied the allegations of greed and criminal negligence had fraud.

THE affidavits have been exchanged. We have heard Mr. Anoop Srivastava for opposite party and Mr. L.P. Singh Counsel for complainant and also heard Dr. Tandon who submitted the relevant extracts of authorities on the subject.

THERE is no dispute about the operation conducted by Dr. Tandon. There is no dispute that the complainant was for a long period under the treatment of Dr. Tandon. The only point in this case is to be decided that whether there was any negligence or professional lapse on the part of Dr. Tandon or not. The papers submitted from both the sides revealed that Dr. Katiyar referred the patient Surendra Nath Singh suffering from compressive myelopathy to Dr. Tandon and Dr. Agarwal. Dr. Tandon on 11/12.8.1996 advised surgery with the remarks ''earlier better which is clear from Dr. Tandons prescription dated 11.8.1996/12.8.1996. It is also clear from the papers filed that operation was conducted on 15.8.1996 and that patient was discharged on 30.8.1996. The discharge summary of the Fractures clinic is already on the file but discharge summary shows the date of admission on 15.8.1996 and date of discharge on 30.8.1996. The diagnosis was hypertension Auky losing spondylitiset 10 extra derel total block. The finding mentioned is that the back -ache was for 10 years and 1 1/2 months history of gradually progressive weakness in both L.L. Myelogram dated 10.8.1996 shows complete block and boney compression. It also shows the surgery was required as there was total block. The patient was at the risk of loosing power in legs at any moment. It is also mentioned that a complete boney fusion was found. It has also been mentioned that with much difficulty complete boney compression was (sic.).

IT is also clear from the prescription dated 24.9.1996 filed by Dr. Tandon that he noted on it'' reported better'' spasticity has returned. On 14.12.1997 Dr. Tandon noted report better spasticity is main problem. On 24.6.1997 on the prescription Dr. Tandon noted reported better spasticity is main problem and ultimately on 14.8.1997 he mentioned that patient requires M.R.I. of spine to see the change in spinal cord. Dr. Poddar in his opinion dated 6.11.1998 mentioned that operated upon due to extra dural block. He also mentioned that there is no improvement after operation. He also prescribed some medicines etc. The main argument advanced by the learned Counsel for complainant is that in all the circumstances M.R.I. could have proceeded the operation and the Doctor only to satisfy his greed did not advise for M.R.I. and conducted the operation. It has further been argued that patient was kept under darkness for complete one year and ultimately on 14.8.1997 he was advised for M.R.I. The patient was operated upon on 15.8.1997 and M.R.I. was suggested on 14.8.1997. If MRI was necessary then why it was not done prior to conducting the operation.

IT has also been argued that continuously for one year Dr. Tandon was giving him assurances that he will be cured and his weekness or disability will be removed and the delay is normal in these types of diseases. It is also a matter to ponder that why the Doctor mentioned after the operation that condition of patient was reported better and spasticity has returned and after that the Doctor mentioned that spasticity is big problem and again after that reported better. This indicates the conduct of the Doctor. The main argument advanced by Doctor and his Counsel is that in all cases M.R.I. is not necessary. He argued that M.R.I. facility was not available at Varanasi and the main problem leading to operation was that there was complete block. If the block was partial its limit could have been judged by M.R.I. but when the block is complete there is no escape from operation. Both the parties have filed their written arguments also. The main thrust in the arguments on behalf of Dr. Tandon is that C.T. Myelogram report dated 10.8.1996 clearly shows that spinal cord of the patient was completely blocked and he was suffering from spinal arthritis and there was no other alternative left except to operation and that operation he conducted. He further mentioned in his written statement that when the pressure is complete which is clear from C.T. Myelogram there was no need for M.R.I. because M.R.I. was not the treatment. It could only evaluate the status and percentage of pressure and when it was clear from myelography that spinal cord was completely blocked there was no need for any other investigation and the only course was to go for operation. In support of his argument the Doctor mentioned Davidsons principle and practice of medicine, 17th edition pages 1099 to 1100 and again 1101 and again pages 1103 to 1104. We must refer the sentence mentioned on pages 1103 -1104 which is ''the most sensitive and least invasive investigation for syringomyelia is magnetic reasonance imagine although myelography, often combined with C.T. Scan allows accurate diagnosis in the great majority of patients''.

AGAIN in Text Book of Nurosurgery II Edition Volume II 1996 on page 715 the following has been mentioned: ''When spinal cord compression is suspected, the idea investigation is magnetic resonace imagine if the facility is available. Though costly, MR provides all the necessary information. CT and contrast CT myelography also provide most of the relevant information. Plain X -ray and CSF studies provide many clues for diagnosis and these followed by water soluble contrast myelography are standard techniques used even now in many centres in many countries, hence these are discussed here.'' Dr. Tandon has further referred Harrisons Principles of Internal Medicine Volume II pages 1451 and 1559 -1560 and also drew our attention towards the relevant opinion. Page 1960 of this authority mentions the following: ''In this circumstance a myelogram followed by a CT myelogram may be the best choice. Herniated fumbar disc is usually detected by MRI but some physicians still prefer to have the anatomic details confirmed by CT and myelography prior to surgery. If the M.R.I. is normal or equivocal a myelogram may demonstrate enlarged veins in cases of suspected AVM of the cord, prior to deciding on spinal angiography.''

REPEATEDLY it has been argued that when the spinal cord was completely blocked as it was clear from CT and Myelography investigation there was no necessity for incurring expenditure on MRI. The operation was the only course open in this regard and we considered that the Doctor is able to prove his contention by referring the authorities on the subject.

WE are of the opinion that when there was complete blockage in the spinal cord there was no need to waste time in M.R.I. and the proper course was adopted by the Doctor for immediate operation and it was conducted thereon. Argument is there and also affidavit on behalf of the complainant that the consent prior to operation was not given by the patient or his brother or any relation looking after the patient. The signature on the consent is by one K.S. Singh and it has been said in the affidavit that K.S. Singh is not the brother nor he comes in any relation. The complainant does not know who is K.S. Singh. The consent is in a proforma. It is typed one but very important undertakings have been given in handwriting. It may sound unnatural that why on this consent note it has been mentioned that there is complete blockage and there is risk of loosing complete strength of the legs and the only cure is operation and even after operation there is no guarantee that patient will be completely cured and considering this risk with free mind without any pressure the complainant is admitted.

A plain reading of this consent note will certainly show that it might not be a peshbandi where the Doctor was having knowledge that the operation was not going to be successful even then he conducted the operation. It may be mentioned that due to proper education regarding Consumer Protection Act the people are very concerned about the consumer rights and they may take recourse to file complaint if at all there is any negligence on the part of the Doctor, that is why the Doctor are extra cautious for defending themselves and they get mentioned all the eventualities in the consent note. But who is K.S. Singh is not clear. Since a finding that Myelogram dated 10.6.1996 clearly showed the complete blockage there was no need for M.R.I. before the operation. The controversy about the consent is not very material.

ONE more argument has been raised that if M.R.I. was needed why for complete one year the Doctor put the patient under treatment. Dr. Tandon argued that even after operation the risk of loosing the strength was there and the operation was not a certain cure. Dr. Tandon himself noted on certain prescriptions that ''reported better'' and on one prescription he mentioned spasticity has returned but on other prescriptions he mentioned that spasticity was big problem. Only for keeping one year under treatment Doctor cannot be blamed for criminal negligence and fraud. In the consumer protection cases where criminal negligence is alleged the proof of intentional lapse and intentional negligence should be there. The Doctor has successfully proved that since there was complete blockage of spinal cord the only course open was to operate and the professional athics motivated him to do operation and that he performed his duty. We do not find any intentional negligence on the part of the Doctor. Hence this complaint fails. ORDER Complaint is dismissed. Parties will bear their own cost. Complaint dismissed.