T Ramesh Kumar Reddycomplainant vs MANIPAL HOSPITAL

ALMOST every day we are coming across cases of medical negligence where patient approaches a Doctor for an ailment, the Doctor diagnoses the disease and suggests for particular surgery, the patient gives consent for surgery and the Doctor conducts the surgery. But while doing surgery, if the Doctor causes damage to some other part of the body it may lead to further complications. Thereafter, when the patient approaches the Doctor, the Doctor suggests for a corrective surgery but the Doctor would not be inclined to do the corrective surgery free of cost. Consequently, the patient approaches some other Doctor and undergoes corrective surgery and thereafter approaches the Forums for compensation. Naturally, if the negligence is established, the Forums award compensation. All this could be avoided if the Doctor who conducts the first operation does not give room for negligence. In case there is failure of first operation, in principle the Doctor should conduct the corrective operation free of cost. We have also come across cases where Hospitals introduce package scheme for particular treatment. But after the treatment, the Hospitals charge over and above the fee fixed under package scheme on the ground that some extra treatment was provided to the patient or the patient was kept in the Intensive Care Unit for some complications. Charging fee over and above the fee fixed under the package scheme will defeat the very purpose of introducing package scheme. The case on hand comes under the first category.

THE Complainant has filed this complaint for a direction to the opposite parties (for short, ''O.Ps.'') to pay Rs. 45,00,000 as compensation alleging negligence against the O.Ps. with costs. The facts in this case are as follows: The complainant approached O.P. 1 Hospital with the complaint of discharge of non -foul smelling water from his left ear with decreased hearing on 9.12.2002. On that day, O.P. 2 attended the patient and on examination suggested for surgery of the left ear. Accordingly, the complainant was admitted to O.P. 1 Hospital for surgery on 28.12.2002. It is stated in the complaint that prior to the date of admission, various medical tests were conducted on the complainant on 27.12.2002. O.P. 2 being an ENT Surgeon conducted the surgery on 28.12.2002 and discharged the complainant from O.P. 1 Hospital on 30.12.2002.

THE main grievance of the complainant is that immediately after recovery from Anaesthesia, he developed lot of complications as there was partial disability caused to his left eye and mouth. Besides this, his face was paralyzed and got disfigured and he was not able to speak properly nor was he able to close left eye totally and he could only close partially. This fact was brought to the notice of the Doctor before he was discharged from O.P. 1 Hospital. Thereafter, the complainant visited O.P. 1 Hospital on 2.1.2003 and again on 13.1.2003. The doctor referred the complainant to a physiotherapist and, accordingly, the complainant approached the physiotherapist and some exercises were conducted on him. The complainant again approached the doctor on 8.2.2003 and he was referred to physiotherapist for treatment and, accordingly, the complainant was treated. As there was no relief, the complainant again consulted the doctor on 19.5.2003 and 7.7.2003. The doctor referred the complainant to a Radiologist on 7.7.2003. The Radiologist was of the opinion that there was a small deficiency in the left facial canal near the junction of horizontal and vertical segments. As the complainant could not get any relief, he went to Chennai on 30.7.2003 and the Doctor at Chennai also noticed and confirmed about the LMN type of Facial Paralysis on the left side part traumatic. Ultimately, the complainant consulted Dr. Mohan Kameswaran at Chennai and he also noticed that there was Left Facial Weakness and suggested for facial nerve exploration and repair. Accordingly, the complainant was admitted to the Hospital at Chennai on 19.11.2003 and Dr. Mohan Kameswaran conducted the surgery on 20.11.2003 and the complainant was discharged from the Hospital on 22.11.2003. For this surgery, according to the complainant, he incurred a sum of Rs. 45,000 towards surgery and post operative expenses.

THE further case of the complainant is that on account of the negligence on the part of O.P. 2 in not conducting the surgery properly, he has developed the following complications: (i) Facial Paralysis; (ii) Non -closure of left eye while sleeping; (iii) Disturbance in movement of eyelid; (iv) Disfiguring of face; (v) Loss of memory; (vi) Non -closure of left eye while travelling resulting in dust accumulation on eyelid ultimately damaging the eye -sight; (vii) Blurring of images; (viii) Continuous watering on left eye; (ix) No clarity in speech and improper pronunciation due to partial opening of left side of mouth. The further averment of the complainant in the complaint is that even before the second surgery at Chennai, the father of the complainant had written a letter to O.P. 1 Hospital on 2.8.2002 calling upon O.P. 1 to correct the disability caused to the complainant and also to reimburse the expenditure incurred for the treatment of the complainant. O.P. 2 gave a reply to the said letter on 7.8.2003 wherein he admitted that facial nerve deficit on the left side was reported to him by the duty Doctor at night. O.P. 2 has further stated that surgery carries certain amount of risk and if the complications arise, then it is their job to correct it either by treatment or surgery.

THE complainant on the ground of negligence alleged against the O.Ps. has claimed a compensation of Rs. 45,00,000 with costs.

O .Ps. 1 and 2 have filed their version. In their version they have admitted that the complainant was admitted in O.P. 1 Hospital for a surgery to his left ear and O.P. 2 completed the surgery by mid -day and after completion of the operation and when the complainant had partly recovered from general anaesthesia, O.P. 2 checked the movements of the eyes as well as mouth of the complainant and he found that the movements were perfectly normal. It is further stated that in case of mastoid surgery, the patients are examined on the operation table itself and he did examine the complainant on the operation table and found that the left facial nerve was intact and later the patient was transferred to the post -operative recovery room. The further case of O.P. 2 is that even before shifting the patient from the recovery room back to the ward, he again checked the facial and eye movements of the complainant and they were absolutely satisfactory. O.P. 2 has further stated that if there exists any facial deficit either on the operation table or in the recovery room, the patient would be taken back to the operation theatre for re -operation and correction within 24 hours. O.P. 2 in his version has further stated that he again checked the patient at 3.30 p.m. and found that movements of eye and mouth were satisfactory. The O.Ps. in their version have stated that O.P. 2 noticed partial facial deficit on the left side on 28.12.2002 at 6.15 p.m., i.e., several hours after the surgery. This was due to edema around the nerve sheath and not direct injury to the nerve fibres.

IT is admitted in the version that the patient again visited O.P. 1 Hospital on 13.1.2003 and 8.2.2003 and on examination O.P. 2 advised the complainant to go for Physiotherapy and electrical stimulation treatment to the patient. As there was no relief from the Physiotherapy and electrical stimulation, O.P. 2 advised the complainant to go for a second surgery on 7.8.2003.

THE sum and substance of the defence of the O.Ps. is that the complications developed due to the edema around the nerve sheath and not due to any direct injury to the nerve fibres and it is the normal risk involved in these types of surgeries, relying upon certain Literature, and no negligence can be attributed to O.P. 2. Both the parties have produced documents in support of their case. The parties have also filed Affidavits by way of evidence and they were also permitted to file Interrogatories and, accordingly, the parties have filed Interrogatories. O.P. 2 has filed his answer by way of Reply to the Interrogatories delivered by the complainant.

ON the above pleadings of the parties, the points that arise for consideration in this case are as follows: (1) Whether the complainant proves that he has suffered a substantial injury due to the negligence on the part of O.P. 2 in conducting the operation of his left ear? (2) To what relief the complainant is entitled? Point No. 1:

THE complainant was admitted after several tests to O.P. 1 Hospital for operation of his left ear on the advice of O.P. 2 on 28.12.2002. On that day O.P. 2 conducted the surgery. According to the complainant soon after the recovery from anaesthesia, he found that partial disability was caused to his left eye and mouth. Besides this, his face was paralysed and got disfigured and he was neither able to speak properly nor close left eye. The defence of O.P. 2 is that after completion of the operation and when the complainant had partly recovered from general anaesthesia, O.P. 2 checked the movements of the eyes as well as mouth of the complainant and he found that the movements were perfectly normal. The further case of O.P. 2 is that even before shifting of the patient from the Recovery Room back to the Ward he found that the movements of the eyes and mouth of the complainant were absolutely satisfactory. The further case of O.P. 2 is that in the event if there was any facial deficit the patient could have been taken back to the operation theatre for re -operation and correction within 24 hours. The Hospital records produced by O.P. 1 no doubt do not disclose that there existed any facial deficit. The Discharge Summary issued by O.P. 1 Hospital is marked as Exhibit C -1. The Discharge Summary also does not disclose existence of any facial deficit. The condition of the patient referred to in the Discharge Summary was satisfactory. The O.Ps. in their version and the affidavit have admitted that O.P. 2 noticed partial facial deficit on the left side on 28.12.2002 at about 6.15 p.m, i.e., several hours after the surgery. If O.P. 2 came to know of the partial facial deficit on the left side, the same should have been disclosed either in the Hospital records or in the Discharge Summary. The complainant has produced the report of the Radiologist dated 7.7.2003 which is marked as Exhibit C -2. In the said Report, it is stated that the wall of the facial canal is deficient at the junction of horizontal and vertical segment. The complainant has also produced the report of ENT Specialist by name Dr. N. Surendranath Reddy of Vijaya Hospital, Chennai, dated 30.7.2003, which is marked as Exhibit C -3. The said report discloses that on the left side there is LMN type of facial paralysis - part traumatic. The complainant has also produced the report of Dr. Mandel, which is marked as Exhibit C -4. In this report it is seen that the said Doctor noticed that there was a facial weakness and he suggested for ''Facial Nerve Exploration and Repair''. From these reports it is seen that there is a facial deficit and this has caused after O.P. 2 conducted the operation. Now the question is whether this facial deficit is the consequence of the operation conducted by O.P. 2 or not. As stated earlier, O.P. 2 on examination found that there was no facial deficit both on the operation table and in the recovery room and also before shifting the patient to Ward. But he himself admits in his version and affidavit that he noticed partial facial deficit on the left side at 6.15 p.m. on 28.12.2002. If O.P. 2 had noticed that there was a partial facial deficit he ought to have mentioned the same in the case -sheet maintained by the Hospital. But there is no such mention in the Hospital records. According to O.P. 2 if he had noticed any facial deficit on the operation table or in the recovery room or before shifting the patient to the Ward, he would have taken the complainant back to the operation theatre for corrective operation within 24 hours. In the instant case, though O.P. 2 came to know of the partial facial deficit around 6.15 p.m., i.e., after about 4 to 5 hours after the operation, he did not take steps to take the patient back to the operation theatre for conducting the corrective surgery.

ACCORDING to O.P. 2 the partial facial deficit was due to pressure effect of the intra canal tight pack or due to post -operative edema around the nerve sheath. After he came to know about the partial facial deficit, he removed the intra -canal pack to release the pressure effect and to reduce the edema around the nerve sheath and course of steroid and antibiotics were given by injection and orally. If really the complications developed due to edema or pressure, the same could be cured by administering steroid. In this case, though certain steps were taken by the Doctor, the patient could not get any relief. If the complainant had got any relief, he would not have again gone to O.P. 1 Hospital with the complaint of facial paralysis. The Discharge Summary issued by O.P. 1 Hospital also does not disclose the condition of the patient as on the date of discharge. Admittedly on 28.12.2002 itself it was noticed that there was a partial facial deficit.

THE report of the Radiologist (Exhibit C -2), Report of Vijaya Hospital (Exhibit C -3) and report of Madras ENT research foundation (Exhibit C -4) disclose that the wall of the facial canal was deficient at the junction of horizontal and vertical segment. This injury arose out of the surgery conducted by O.P. 2 on 28.12.2002 and this inference is inevitable in the absence of any positive evidence adduced by O.P. 2. This necessarily means that while conducting the surgery. O.P. 2 has caused damage to the facial nerve. Otherwise, there could not have been any facial paralysis. This made the complainant to go to Chennai for corrective surgery. The father of the complainant had issued a Notice to O.P. 1 Hospital, which is marked as Exhibit C -5. In the said Notice he has stated that he is very poor and not in a position to bear the expenditure and that Dr. Mondal, i.e., O.P. 2 had said that he would do the needful free of cost but it was charged. In reply to the said Notice, O.P. 2 has stated that the complainant requires exploration of facial nerve (L) and the complainant was advised to take the necessary measures. O.P. 2 in his reply has further stated as follows: ''Although very rare, surgery carries certain amounts of risk and if the complications arise, then it is our job to correct it either by treatment or surgery.'' From this reply it is seen that the complication arose due to the surgery and the patient required exploration of facial nerve (L), that is to say, a corrective surgery was required.

THE O.Ps. have stated in their version that after the operation the complainant met with an accident and the alleged restriction of the mouth movements would only be related to subsequent accident resulting in major facial injuries including tempo -mendibulor -joint. This defence put forth by the O.Ps. cannot be accepted because even before the accident, O.P. 2 advised the complainant to go for a corrective surgery because of facial deficit. From the material placed before us it is seen that the accident took place on 9.8.2003, whereas O.P. 2 advised the complainant to go for a corrective surgery on 7.8.2003.

THE complainant has delivered certain Interrogatories to the O.Ps. Answers given by O.P. 2 to the Interrogatories delivered by the complainants are similar to the averments made in the Affidavit filed by O.P. 2 by way of evidence. From the above facts and the material we come to the conclusion that the complainant has suffered a facial paralysis due to the negligence of O.P. 2 in conducting the surgery on 28.12.2002, which ultimately made the complainant to spend a considerable amount of money to go for a second corrective surgery at Chennai. Hence, we answer Point No. 1 in the affirmative. Point No. 2 :

THE complainant is unmarried and he has spent considerable amount of the first operation in O.P. 1 Hospital. He has also spent considerable amount for a corrective surgery at Chennai. In support of this, the complainant has produced several bills issued by O.P. 1 Hospital as well as the Hospital at Chennai, along with the complaint. Taking all these facts into consideration and also keeping in view the further prospects of the complainant, we are of the view that awarding a sum of Rs. 1,00,000 as compensation in favour of the complainant would meet the ends of justice.

IN the result, we pass the following Order: (1) The complaint is allowed in part. (2) O.Ps. 1 and 2 are directed to pay jointly and severally Rs. 1,00,000 (Rupees one lakh) to the complainant with interest at 9% per annum from the date of the complaint till realization. (3) O.Ps. 1 and 2 are also directed to pay jointly and severally Rs. 5,000 (Rupees five thousand only) to the complainant towards the costs of these proceedings. Complaint partly allowed.