- (1.) This judgment will dispose of Civil Appeal No 4119 of 1999 and Civil Appeal No. 3126 of 2000 filed by the complainant, Prasanth S. Dhananka . The facts are as under:
(2.) The respondent Prasant S. Dhananka ( hereinafter called the "complainant"), then 20 years of age and a student of Engineering, complaining of recurring fever was examined in the hospital run by the Bharat Heavy Electricals Limited as his father was employed with that Organisation. As the cause of the fever could not be identified, he visited the appellant - Nizam Institute of Medical Sciences (NIMS) on 9th September, 1990 in the evening OPD. He was examined by one Dr. Ashish Boghani, a Chest and Tuberculosis Specialist and was advised to undergo on ultrasound guided biopsy for Neurofibroma, an innocent tumour, after an X-ray revealed a mass in the left hemithorax with posterior mediastinal erosion of the left 2nd, 3rd and 4th ribs. As several attempts at Fine Needle Aspiration Cytology (FNAC) under ultra sound guidance did not give any conclusive evidence as to the nature of the mass detected in the X-ray examination, the complainant was referred (on 5th October, 1990) for further examination to Dr. U.N. Das, who suggested another attempt at the same procedure but under C.T. guidance. This test too did not show any lesion on which Dr. U.N. Das suggested that he undergo an excision biopsy and referred him to Dr. P.V. Satyanarayana, a Cardio Thoracic Surgeon, who further advised him to report at the hospital on 16th October, 1990 for allotment of a room. The complainant was admitted to the hospital on 19th October, 1990 and the operation was performed on 23rd October, 1990 and the tumour was excised. It appears that immediately after the surgery, the complainant developed acute paraplegia with a complete loss of control over the lower limbs, and some other related complications, which led to prolonged hospitalization and he was ultimately discharged from the hospital on 19th May, 1991 completely paralyzed with no change in his sensory deficit. The discharge record also shows that the patient required continuous physiotherapy and nursing care on account of infection of the urinary tract and the development of bed-sores etc. It is the case of the complainant that after his discharge from NIMS, he visited several other hospitals seeking relief, but to no avail. On 11th May, 1991 the complainant s father requested NIMS for a detailed report so that his son s case could be discussed with experts from other developed countries so as to improve his quality of life. No reply was, however, forthcoming despite a reminder. Another letter dated 12th November 1991 also drew no response. Completely frustrated, the complainant filed a complaint before the National Consumer Redressal Commission (hereinafter referred to as the "Commission") on 5th April, 1993 alleging utter and complete negligence on the part of Dr. P.V. Satyanarayana and the other attending doctors and also making NIMS vicariously liable and the State of Andhra Pradesh statutorily liable for the negligence of the doctors concerned. Allegations was primarily levelled against Dr. P.V. Satyanarayana for negligence before, during and after the operation. It was alleged that the medical record did not indicate any immediate danger to the complainant s life and health and that his father had pleaded with the doctors that the operation be postponed till such time he could complete his engineering degree course. It was further alleged that the doctors had not carried out the required pre-operative tests which were available in NIMS itself and that the complications which could possibly flow as the result of an excision biopsy had not been spelt out to the complainant prior to the procedure. It was also submitted that operating on a neurofibroma or a schwannoma which had neurological implications as well, warranted the involvement of a Neuro surgeon but no such opinion was sought before the surgery. It was also pleaded that the consent that had been taken was only for the purpose of an excision biopsy which was an exploratory procedure, but Dr. Satyanarayana had carried out a complete excision removing the tumour mass and the fourth rib thereby destroying the inter-costal blood vessels leading to paraplegia and had a Neuro-surgeon been associated with the operation, this problem could well have been avoided. The complainant also alleged that negligence in post-operative treatment and care had led to bedsores, severe pain, and high temperature and frequent and unnecessary exposure to X-rays which could be a potential hazard later in life. He accordingly claimed compensation as follows: JUDGEMENT_651_JT6_2009_1.html
(3.) On notice several replies were filed by the respondents. NIMS, Respondent No. 1 before the Commission, filed a reply on behalf of respondent Nos. 2 to 5 and denied the allegations in the complaint and pleaded that there had been no negligence. Respondent No. 6 before the Commission i.e. Chief Secretary Andhra Pradesh Government, disowned any liability and pleaded that it had absolutely no concern with the matter. Several pleas on merits were also taken by the respondents. It was pleaded that the provisions of the Consumer Protection Act could not be attracted and that the complaint had been made after a lapse of one and half years and was, therefore, an afterthought. It was also pleaded that reasonable care had been taken in the treatment by doctors who were highly skilled in their specialties and in this view of the matter, the claim for compensation and that too running into several crores, was not justified. The respondents then traversed the facts of the case and pleaded that though the initial examination of the patient ruled out the presence of a lymphoma which was a malignant condition, the possibility of an undetermined malignancy within a large area in the left thorax had to be examined as a benign lesion was unlikely to cause prolonged fever along with erosion of the left 2nd, 3rd and 4th ribs as shown in the X-rays and as a rapidly growing benign lesion could also cause erosion of the ribs, a biopsy of the mass to confirm the diagnosis was essential to plan the future course of action. It was further pleaded that a history of fever for about 15 days prior to admission with loss of appetite and weight suggested that whatever be the nature of the lesion, benign or malignant, its presence was taking its toll on the general condition of the patient which required some minimal tests. It was also pointed out that as four attempts at FNAC had not yielded any conclusive pathological diagnosis, the next best alternative was to go in for an excision biopsy by thoracotomy (an operation involving incising the wall of the thorax) which was a test which could finally determine the nature of the mass. It was, however, admitted that the complainant and his parents had pleaded during discussions in the OPD for postponement of the proposed excision biopsy to enable him to complete his education but when it was explained to them that early confirmation of the diagnosis to exclude the possibility of a malignancy was essential, the parents had consented for the surgery after they had been fully informed about all possible risks and it had also been explained to them that after the body had been opened up, a small piece of the mass would be immediately sent for histological examination and that any further procedure would be based on the report received therefrom. It was further pleaded that after the thoracotomy had been performed, a part of the tumour had in fact been sent for a biopsy and the report had been received soon thereafter that the mass was benign but it was nevertheless decided to excise the entire tumour as the 4th rib had eroded and it had been found essential to remove the 2nd and 3rd rib as well and for this purpose some inter costal blood vessels had also been sacrificed. It was also submitted in addition, that as tumours though initially benign can cause several medical complications endangering the patient s life and can also turn malignant at a later stage, it had been thought fit to remove the tumour along with the involved ribs and that all care expected of doctors had been taken and that it was only a cardio thoracic surgeon who had the skill to perform such a surgery and that the help of a neuro surgeon had to taken if the tumour had any intra spinal extension and as in this particular case there was no such extension, the presence of a neuro surgeon was not required. It was finally pleaded that all investigations before the operation had been performed and full medical care had been provided to the complainant at the post-operative stage as well.;