Mrs. Dipa Das Gupta Vs. Five Point Nursing Home and Others - Court Judgment

Excerpt:

Judgment:

Sri Kalidas Mukherjee, President

This is a complaint filed by the complainant alleging medical negligence. The case of the complainant, in short, is that she had a lump in the right side of her neck for a long time. Accordingly, the complainant and her husband visited SSKM Hospital on 05/05/08 at the OPD wherein she was checked up by Dr. R. Pal of ENT, OPD and was advised USG of the lump on the neck and FNAC. The complainant, accordingly, had her USG of neck and the test report dated 27/05/08 suggested “Palpable swelling on right side of neck appears to be a solid looking SOL measuring 2.8 x 2.0 cm in size Lymph node mass”. The complainant also had the FNAC done and the report suggested that there was no malignancy in lump which had developed in the right side of neck. The excision biopsy was also suggested. The report further suggested the possibility of peripheral nerve sheath tumour. Subsequently, the slides examined by Eko X ray and Imaging Institute was sent to SRL Ranbaxy for further opinion. Ranbaxy by its report dated 13/06/08 gave its finding where no mention was made regarding malignancy and, as such, it can well be presumed that they also did not find any malignancy in the SOL. Ranbaxy further suggested that excision biopsy be conducted on the patient. The complainant then went to OP No.2 for such excision biopsy as was advised by Eko X ray and Imaging Institute and SRL Ranbaxy. The OP No.2 after examining the test report advised that the SOL was required to be tested as early as possible as there had already been delay of several years and if further delay occurred the patient might suffer life threatening condition. Accordingly, the OP No.2 advised the complainant to get admitted in the Nursing Home being OP No.1 wherein excision biopsy would be done by OP No.2, 3 and 4 as a team.

It has been alleged by the complainant that the OP No.2 misled the complainant by stating that the situation was alarming and excision biopsy was needed on a war footing basis. It has been alleged that the OP No.2 had created a panic in the mind of the complainant only to get her admitted in the OP No.1 and earn money. The OP No.1 is owned by OP No.2. It is alleged that creating fear in the minds of the patient and her family members to gain financially is an unfair trade practice. The complainant being perplexed and believing the statements of OP No.2 got herself admitted in the OP No.1 on 17/06/08 for excision biopsy of right sided cervical SOL under general anesthesia of right sided cervical SOL. The history of the complainant was taken on that date. It is alleged by the complainant that when a tumour is suggestive of peripheral nerve sheath tumour on FNAC being done, it is always essential to be prepared with a stent for bypassing any artery if found inside the tumour. It is also essential to conduct Doppler test before conducting any surgery of tumours of similar nature to rule out any possibility of carotid body tumour. It is alleged that the OPs were negligent in performing such surgery which ultimately caused severe health complication of the complainant. Surgery was conducted without keeping ready a stent which was required for bypassing any artery in case it was found inside the tumour. The excision biopsy was done on 18/06/08 and the family members of the complainant were informed after surgery that the slide for the biopsy was taken and the surgery was conducted as per plan and it was uneventful. On 19^th June, 2008 the left side of the face was very weak and the left upper and lower limb were not reacting at all. The husband of the complainant requested the treating doctors to refer the patient to some other specialists, but the OPs did not bother to refer. The OP No.2, 3 and 4 continued with their treatment but the treatment showed no positive response at all and there was in fact deterioration of the condition of the patient.

It has further been stated in the complaint that the husband of the complainant being worried personally contacted Dr. Samir Biswas, a specialist Neuro physician and requested him to treat the complainant who being sympathetic advised CT Scan of the brain on the night of 19^th June, 2008. The OP No.2, 3 and 4 were reluctant to have the patient treated by Dr. Biswas. Subsequently, Dr. Biswas advised CT Scan of brain and Doppler study of neck vessel. The CT Scan suggested “sub acute infarct of right middle cerebral artery territory with mass effect” and Doppler suggested “complete obstruction of right internal carotid artery approx 1.5 c.m. from the bifurcation with hypo echoic lumen occluding thrombus”. The complainant was thereafter treated by Dr. Goutam Nath at OP No.1. Thereafter MRI of brain was conducted and findings were “Right MCA infarct with hemorrhagic changes are seen in it. Mild midline shift to left is noted. Associated cerebella atrophic are also noted”. On 30^th June, 2008 the complainants husband was asked to take her home and accordingly the discharge certificate was issued by OP No.1. The complainants husband was suspicious of the real condition of the complainant and, as such, he took the complainant to B.I.N. Hospital and consulted Dr. Prof. S. P. Ghorai who advised 3D MDCT angiogram of brain and neck immediately. The test was done and report suggested “there is abrupt complete cut off of right internal carotid artery with luminal filling defect about 0.7 cm beyond the carotid bifurcation”. The complainant was treated in the B.I.N. Hospital from 30/06/08 to 07/07/10. However, there was no improvement in the treatment as the complainant was unable to move the left portion of her body at all. The complainant was then taken to Apollo Hospital. The doctors suggested that the surgery complained of has caused irreversible condition of the patient for which they were not in a position to cause rapid and significant movement. In the B.I.N. Hospital and Apollo Hospital the doctors had categorically expressed that due to the negligent surgery, the main artery was cut by the surgeon at OP No.1 and thereafter he failed to create the bypass channel for the arterial blood supplying oxygen to the brain. As a result there was a permanent damage in the brain causing paralysis of the left side of the complainant and such paralysis was not reversible in nature. It has been alleged that the complainant is still suffering from paralysis of the left side of the whole body and, as such, the complainant is unable to perform the daily work of her own. For the said reasons, the complaint has been filed claiming:

i) The opposite parties be directed to pay jointly as well as severally a sum of Rs.12,00,000/- as compensation for the negligent service provided for by the opposite parties.

ii) The opposite parties be further directed to pay a sum of Rs.15,00,000/- for the mental pain, physical pain the complainant had suffered.

iii) The total medical expenses of Rs.8,00,000/- made from the date of admission to OP No.1 till date be made good to the complainant.

iv) Cost to the present complaint.

v) Any further order or orders as this Honble Commission may deem fit and proper.

The OP No.1 and OP No.2 have jointly filed written version denying all the material allegations raised by the complainant in the petition of complaint. It has been contended, inter alia, that from the FNAC report it was evident that it suggested three possible lesions, but the complainant mentioned only about peripheral nerve sheath tumour with some evil intention. The contention of the complainant about the stent to be used for bypassing any artery if found inside the tumour is misconceived, absurd and baseless. A stent does not form a bypass and that stents are never needed or used in surgery. Use of stents in coronary artery is non-surgical procedure of reestablishing their potency. The contention of the complainant that Doppler test is essential as per medical science to rule out the possibility of carotid body tumor, is absurd. The Doppler studies the motion of a moving body. It can in no way rule in or rule out possibility of carotid body tumor or for that matter any tumor whatsoever. The excision of such a tumour is neither complicated nor a Neuro surgery at all. The complainants contention of cutting off a portion of a healthy artery just to remove a tumour is unethical, unheard of and is never done because it carries a much higher risk of immediate morbidity and mortality than the tumour itself. If a tumour is found so intimately adherent to such an artery that its complete removal could entail even any injury to the artery not to speak of removal of a segment of the artery, the universal surgical practice is to declare the tumour inoperable and to perform debulking procedure as much as possible to relieve pressure symptoms, if any, and to facilitate chemo and radio therapy later on. The complainants lump was mobile, superficial, well circumscribed and did not produce cerebro vascular insufficiency or diminished carotid pulsation even on traction. The lump was growing in size and malignancy could not be ruled out without excision biopsy. No significant artery was cut and this fact was recorded in the operation note. As regards the MDCT Angiogram, if there is thrombus in the artery, the dye cannot penetrate it much, so it appears as a hypo dense area. The obstruction to blood flow in a vessel can be due to thrombus inside the lumen. The report clearly says that the angiographic image of the right internal carotid artery ends abruptly because it is interrupted and is prevented from continuing by something completely blocking the lumen of the artery. The idea of using a stent is absurd because stents do not form a bypass. The 3D MDCT Angiogram of brain shows infarction of the middle cerebral territory and this conclusively proves that the internal carotid artery was not injured and tied.

The OP No.3 has filed a written version denying all the material allegations raised by the complainant in the petition of complaint. It has been contended that the petition of complaint filed by the complainant should be dismissed in limine with cost.

The OP No.4 has filed a written objection denying all the material allegations raised by the complainant. It has been stated that the OP No.4 is not an attached anesthetist under OP No.1. The regular anesthetist attached to OP No.1 is Dr. Amalendu Chakraborty and he was unavailable in OP No.1 on the date of operation of the complainant. Both the OP No.1 and 2 contacted the OP No.4 and requested him to act as the substitute anesthetist for the day. The OP No.4 was free on that date and so he readily agreed to comply, especially as the OP No.2 is his good friend. The entire operation took about 45 minutes. During operation, as per rule, the anesthetist stays at the head end of the patient. The entire operation procedure conducted by OP No.2 and 3 was blocked and, as such, it was not possible for the OP No.4 to see or know their method. After the operation, as per the duty of the anesthetist, the OP No.4 checked the complainant who had gained consciousness and was fit without any display of discomfort and, accordingly, the OP No.4 made a note of the same in the medical record. The duty of the OP No.4 as anesthetist ended with the complainant leaving the operation table and he had no knowledge of her health or any complications after that. Before leaving he had made final check up of the complainant and did not find any abnormality in her.

The Learned Counsel for the complainant has submitted that the complainant got herself admitted in OP No.1 for undergoing excision biopsy of the tumour in the right neck. It is contended that instead of taking the specimen the whole tumour was removed and in the process an artery was cut off for which the complainant suffered paralysis in the left side of her face. It is further contended that the anesthetist did not perform the pre-operative check up of the patient and after operation did not discharge his functions properly. It is submitted that the anesthetist first saw the patient on the operation table.

The Learned Counsel for the complainant has submitted that such type of operation should have been conducted by a Neuro Surgeon and not a general surgeon. It is contended that pre-operative MRI was a must to know the position of the artery. It is submitted that in course of the operation an artery was cut and there was torrential bleeding and in order to manage the situation the operating surgeon made a knot in the artery. It is submitted that as a resultant effect the paralysis followed in the left side. The Learned Counsel has relied on the 3D MDCT report wherein it has been mentioned that the artery was abruptly cut off and in the operation note there was a mention that no tie was needed and no vessel was cut. It is submitted that the said noting itself suggests that in order to avoid the responsibility of having cut the artery the said note was made. The Learned Counsel has relied on the decision reported in Nijam Institute of Medical Science Vs. Paresnath S. Dhananka and Ors. (SC).

The Learned Counsel for the OP No.4 has submitted that the OP No.4 is not attached to OP No.1 as an anesthetist, but on the day of operation the fixed anesthetist Dr. Amalendu Chakraborty was not available and OP No.4 was requested to perform as anesthetist for the operation of the complainant. It is submitted that it was an emergency call and the OP No.4 went to OP No.1 and was present as anesthetist during the operation of the complainant. It is submitted that after operation the patient was conscious and finding no difficulty he left the said Nursing Home after final check up.

The Learned Counsel for the OP No.1 and 2 has submitted that the patient was initially under treatment at SSKM Hospital. It is submitted that the excision biopsy was done and the operation was uneventful and after operation the patient was given to bed. It is submitted that some neurological problems developed for which the treatment was done for 14 days. No wrong was committed by OP No.1 and 2. There was no negligence on the part of the OPs and they acted as per the medical ethics. It is submitted that there is no evidence as to the alleged suppression of facts. It is contended that in the complaint there is no specific allegation against anesthetist. It is submitted that no artery was cut off as alleged. It is contended that there was thrombus and MCA infarct followed for which there was loss of sensation in the left side of her face. It is contended that there was mild cerebral attack.

We have heard the submission made by both sides and the materials on record. The complainant got herself admitted in the OP No.1 for undergoing excision biopsy of her right sided lump in the neck on payment of necessary charges. The complainant, therefore, is a consumer and the case is maintainable as a consumer complaint.

The complainant in her evidence on affidavit has stated that the excisional biopsy   was done on 18^th June, 2008 by the OPs and her family members were informed after surgery that the slide for the biopsy had been taken and the surgery was conducted as per plan and it was uneventful.

It is in her evidence that she was initially unconscious after the surgery and was drowsy from 8.45 a.m. on 19/06/08 and it was also noted that the left side of the face was very weak and the left upper and lower limb were not reacting at all. She has further stated that on June 30, 2008 her husband was asked to take her home and the discharge certificate was issued. It is in her evidence that her husband being suspicious of the real condition took her to B.I.N. Hospital directly and as per advice of the doctors the 3D MDCT Angiogram of brain and neck were done which showed that there was abrupt cut off in right internal carotid artery with luminal defect about 0.7 cm beyond the carotid bifurcation. She has stated that she was treated in the B.I.N. Hospital, but there was not much improvement and she was unable to move the left portion of her body. It is in her evidence that she was then taken to Apollo Hospital and she was treated there, but there was not much improvement in her condition as the treating doctors suggested that the surgery complained of had caused irreversible condition of the patient and the doctor was not in a position to cause rapid and significant improvement. It has been stated by her in the evidence that in both B.I.N. Hospital and Apollo Hospital the doctors categorically expressed that due to the negligent surgery the main artery was cut off by the surgeon at Five Point Nursing Home and thereafter the surgeon having failed to create the bypass channel for the arterial blood supplying oxygen to the brain, there was a permanent damage in the brain causing paralysis of the left side of the body which was not reversible in nature. It has been stated by the complainant that the surgery ought to have been conducted by neuro surgeon and pre-operation test should have been done to determine whether there was any artery in the said tumour. It is in her evidence that the purpose for which she was admitted in OP No.1 was for excisional biopsy and, as such, only the slice of the tumour ought to have been taken and the removal of the tumour completely without any plan or permission from the complainant showed deficiency in service on the part of all the OPs .

It is in her evidence that operating surgeon in order to hide his misdeeds specifically recorded that no knot was needed and it showed deficiency in service.

It is in her evidence that she has been still suffering from paralysis of the left side of the whole body.

The OP no.1 and 2 adduced evidence on affidavit. In question no.21 OP No.2 was asked whether he ever performed any excisional biopsy. In answer it has been stated by OP No.2 that he had performed many cases of excisional biopsy. In Para 16 of the evidence of OP No.1 and 2 it has been stated that excision of such a tumor is neither complicated nor a neuro surgery is needed and neuro surgeons deal with brain and spinal cord, they never undertake any peripheral surgery because they are not expected to possess the required skill, knowledge and experience. It has further been stated that surgery of peripheral nerve sheath tumours is in the domain of general, plastic and reconstructive surgery.

The Learned Counsel for the complainant has referred to the case of Nijam Institute of Medical Sciences Vs. Prasanth S. Dhananka and Ors. [Civil Appeal No.4119 of 1999 (SC)]. In that case tumour had extended into the posterior mediastinal column containing inter-costal blood vessels and nerves, where the involvement of a neuro surgeon was essential and this procedure had not been adopted. In that case as the tumour had penetrated into the spinal column, the pre-operative MRI was found to be necessary. In that case the doctor stated that it was not a case of interference with the spinal cord and in justification he stated that after operation of the tumour it was found that a bony erosion was there and no involvement of the spinal cord. On this point the Honble Apex Court held “We are of the opinion that this half-baked diagnosis at the stage of the operation only after the excision of the tumour does no credit to the doctor …….”. But in the instant case it appears from the materials on record that pre-operative investigations were done and the factual aspect of this case is different from that of the case cited above. We are, therefore, of the view that the decision cited by the Learned Counsel for the appellant is not applicable in the facts and circumstances of the instant case.

On the point whether such type of tumour ought to have been operated by neuro surgeon and not a general surgeon, the complainant did not adduce any expert evidence. In view of the evidence as discussed above it cannot be said that the OP No.2 and the members of his team were not competent to undertake such type of surgery. Moreover, as to the contention of the complainant that only a slice of the tumour ought to have been taken instead of removing the tumour as a whole, it has been stated in the evidence on OP No.1 and 2 in Para 22 as follows:

“……….. A slice of a tumor is taken for a biopsy in the cases of a fungating growth or a cancerous ulcer, – in stomach, colon, cervic of uterus etc. When the location of the cancer cells is unknown and FNAC fails to reveal cancer cells then the advice of excision biopsy given by a pathologist or a surgeon always mean excision of the whole lump………..” On this point in absence of expert evidence we are unable to accept the contention of the complainant.

The Learned Counsel for the complainant has submitted that Doppler test ought to have been conducted prior to operation in order to ascertain the presence of any artery in the tumour. On this point it has been stated in Para 10 of the W.V. filed by OP No.1 and 2 that Doppler studies the motion of a moving body and it can in no way rule in or rule out possibility of carotid body tumour or for that matter any tumour whatsoever. As to the presence of artery in the tumour OP No.2 has stated in reply as against question no.39 as follows:

“No artery was present in the tumor. There were only arterioles and capillaries, as are present everywhere in the body.” As against question no.40 it has been replied by OP No.1 and 2 that since the tumour did not involve any artery all the arteries of the body were there as before. On this point also in absence of expert evidence it cannot definitely be said that there was any negligence on the part of the operating surgeon to ascertain the presence of any artery inside the tumour before the operation.

The Learned Counsel for the complainant has further argued that in the process of excisional biopsy the operating surgeon had cut the artery which is evident from the report on 3D MDCT Angiogram. The report dated 30/06/08 on 3D MDCT Angiogram on its finding has recorded as follows:

“There is abrupt complete cut off of right internal carotid artery with luminal filling defect about 0.7 cm beyond the carotid bifurcation. Distal right internal carotid artery including its intracranial part is not outlined except for filling of terminal intracranial part which appears thin.”

The Learned Counsel for the complainant heavily relied on “cut off” as mentioned in the report dated 30/06/08. It is his further contention that since the artery was cut off, a knot was made and, as such, there was stoppage of the flow of blood in the artery for which there was MCA infarct. On this point the OP No.2 has stated in Para 19 as follows:      “Cutting of a portion of a healthy artery supplying a vital organ just to remove a tumor is unthinkable, unheard of and is never done because it carries a much higher risk of immediate morbidity and mortality than the tumor itself.”

On this point the question no.47 was put to the OP No.2 which runs as follows:

“Do you think that the 3D image suggesting .7 cm cut in the artery is wrong.” The answer has been given as follows:

“No, it is perfectly right, only the cut in 3D image refers to the column of blood inside the artery. The 3D image can never identify a ‘cut in the arterial wall.”

The report on MRI of brain dated 25/06/08 shows the impression as follows:

“Right MCA infarct with haemorrhagic changes are seen in it. Mild midline shift to left is noted. Associated cerebral and cerebeilar atrophic changes are also noted.”

The complainant did not adduce any expert evidence as to whether the MCA infarct was caused by the stoppage of the flow of blood in the carotid artery or, in other words, whether the MCA infarct was due to the presence of ‘thrombus in the carotid artery. No expert evidence has been adduced by the complainant whether or not the presence of thrombus was due to the alleged defective surgery. On the alleged point of cutting the artery and making a knot no expert evidence was adduced by the complainant. It has been stated by the complainant in Para 25 of her evidence on affidavit that the doctors of both B.I.N. Hospital and Apollo Hospital had categorically expressed that due to the negligent surgery the main artery was cut off by the surgeon at Five Point Nursing Home and having failed to create the bypass channel for the arterial blood supplying oxygen to the brain, there was a permanent damage in the brain causing paralysis of the left side which was not reversible in nature. But it appears that the complainant did not obtain the opinion in writing of those doctors of the said two hospitals nor did she examine those doctors.

On the point of creation of bypass channel, the Learned Counsel for the complainant has argued that a stent should have been used for creating bypass channel, in case the artery is cut and the operating surgeon having not done so there was negligence on his part. On this point the OP No.2 in Para 36 of his evidence on affidavit has stated as follows:

“The idea of using a stent is absurd because stents do not form a bypass. …….. In any case, as in all other instances of cerebral thrombosis or stroke there was no scope of arterial bypass grafting by the present situation. …….” In answer to question no.36 the OP No.2 has stated that stents are never used in similar surgery and use of stents in such surgeries has never been reported in medical science. On this point also in absence of expert opinion it cannot be said that there was any negligence or deficiency in service on the part of the operating surgeon.

Having heard the submission made by both sides and on perusal of the materials on record we are of the considered view that the doctrine of res ipsa loquitur would not apply in the facts and circumstances of the instant case. The complainant having failed to adduce any expert evidence on the points involved in this case, her contention of medical negligence or deficiency in service by the OPs cannot be accepted. The complainant, therefore, is not entitled to get any relief.

In the result, the complaint fails and the same stands dismissed. We make no order as to costs.