Patient loses Voice after operation: NCDRC upholds State Commission order, declares AIIMS doctor guilty of Medical Negligence

New Delhi: Upholding the order of the State Commission, the National Consumer Disputes Redressal Commission (NCDRC) recently held a surgeon from All India Institute of Medical Sciences (AIIMS), New Delhi guilty of negligence for cutting the left phrenic nerve of a patient without obtaining a proper informed consent.

As a result of the injury to the left phrenic nerve, which had to be cut to remove the Anterior Mediastinum Tumor, the patient suffered paralysis of diaphragm and loss of voice.

While considering the matter, the apex consumer court bench upheld the order of the State Commission, which had earlier awarded a lumpsum compensation of Rs 1 lakh to the patient.

The matter goes back to 2001 when the patient had approached Dr. Kumar of All India Institute of Medical Sciences (AIIMS), New Delhi. After examining the patient, and on the basis of CXR and CT Scan, the doctor had informed the patient about 'Anterior Mediastinum Tumor' and advised for undergoing surgery. Accordingly, the doctor and his team had performed the surgery Median 'Sternotomy' and 'Thymectomy'.

After operation, the complainant had been informed by the doctor that he had to cut hi left phrenic nerve as the same was passing through the Tthymaic mass and there were no other option left to remove the thymas mass. As a result of the cutting of Phrenic Nerve, the left diaphragm of the patient was raised and it exists till date.

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Post operation, when the patient regained consciousness, he was unable to speak and when the doctor was informed about it, he allegedly informed the complainant that there may be an injury to vocal cords in the process of giving General Anesthesia before the surgery. The doctor had allegedly assured that this occurs usually and the voice comes back to normal after 3-4 days. 

However, even after 8 days of surgery, there was no improvement in the voice of the patient and therefore, the patient approached the ENT Department again and got himself examined for the problem of voice. after examination, the ENT Department of AIIMS declared left cord palsy (post-operative) and suggested the Complainant for speech Therapy.

The complainant alleged utter negligence of the AIIMS doctor and also alleged that specimen of the 'Thymus Mass' removed after the surgery was not sent for Histopathology test within time. Dr. Arbind based on HPE report advised radio therapy as a proper treatment. But the complainant did not show any improvement in his voice or the movement of the left vocal cord.

Aggrieved by this, the complainant had filed a complaint before the State Commission and claimed an amount of Rs. 65,25,000 as compensation. 

On the other hand, AIIMS and the doctor denied negligence on their part and they also pointed out that AIIMS being funded by Central Government, the complaint was not maintainable under the Consumer Protection Act, 1986. Further, it was submitted that the surgery had been performed through mid-sternotomy and a big mass was found, more on the left side which extended up to the arch of aorta. It was completely engulfing the left phrenic nerve and therefore it was not possible to remove the tumor in toto without sacrificing the left phrenic nerve. Therefore, it was submitted that the operating surgeon had taken the decision in the best interest of the patient and it was an accepted standard of treatment of thymoma tumor. When the patient was detected to have left vocal cord palsy, speech therapy had been advised, submitted AIIMS and the doctor.

After considering the matter, the State Commission partly allowed the complaint and noted that "Even if we accept the contention of the OP that the nerve was to be sacrificed still it was the duty of the OP to see that the phrenic nerve ends are sutured or stimulated so as not to result in paralysis."

The State Commission had awarded Rs 1 lakh lumpsum compensation to the patient and aggrieved by this, both the complainant and the AIIMS hospital along with its doctor had approached the NCDRC bench.

While considering the matter, the Apex consumer court considered the arguments by both the sides, perused the entire medical record, order of the State Commission and also the relevant medical literature on thoracic surgery.

Taking note of the large size of the thymic tumour that extended up to aortic arch and innominate vein, the consumer court opined that if the tumour engulfed the Phrenic nerve, then two treatment options were available- one was to open the tumor capsule and dissect the tumor along the phrenic nerve and the second option was to ensure complete resection of tumour without opening the capsule with phrenic nerve.

Referring to the mode of surgery, the apex consumer court opined, "In the instant case due to achieve complete tumor excision sacrificed the ipsilateral phrenic nerve was chosen by the OP-2. It is an accepted mode of treatment. It was not proper by leaving part of tumor, as it would have endangered patient's life in future. Thus, it was due diligence of OP-2 exercised the care during entire procedure."

However, noting that the patient was not informed about the possibility of cutting the phrenic nerve, the Commission observed, "It is pertinent to note that the complainant (patient) was totally asymptomatic and healthy. The tumour was accidentally detected on X-ray only and the nature, size of the same was confirmed by FNAC & C.T. Scan. However, the Complainant being a doctor (physician) in his affidavit stated that pre-operatively OP-2 did not discuss about the possibility of cutting/injury to the phrenic nerve. The OP-2 on his own cut the phrenic nerve causing complete left diaphragm paralysis for rest of the life. In the post-operative notes or in the discharge summery did not mention about cutting of left RLN. If the size of tumour is big then a thorough preoperative evaluation should be done and possibly Radiotherapy should be advised to get the size reduced and hence to reduce intra operative complications. Even in case of tumour engulfing phrenic nerve the surgeon is supposed to save the phrenic nerve by leaving a small mass surrounding the nerve to be followed by postoperative radiotherapy so that at least Diaphragm paralysis could have been saved."

Taking cognizance of the fact that the patient was still suffering and consulting doctors in India and abroad for the paralysis of diaphragm, due to the cutting of the left phrenic nerve, the Commission further stated in the judgment, "It is pertinent to note that the patient was doctor himself, but he was not informed about the postoperative complications of nerve injury during such surgery, which likely to cause loss of voice and restricted diaphragm movements."

Holding the doctor guilty for not obtaining a proper informed consent, the NCDRC bench affirmed the order of the State Commission and the compensation awarded by it and noted, "Moreover, in our view, the operative procedure adopted by the Opposite Parties was an accepted reasonable standard of practice, but not having a proper informed consent, it amounts to negligence per se. Accordingly, we affirm the Order of State Commission, which awarded just and reasonable compensation to the Complainant."

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