Botched Spinal Surgery: Consumer Court directs Neurosurgeon to pay Rs 5 lakh compensation

The President of the Commission Kuljit Singh and member Jyotsna mentioned in the judgment dated 20.04.2021, "Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued."

Further reiterating the Apex Court observation the Commission observed, "due to very nature of medical profession, degree of responsibility on practitioner is higher than that of any other service provider. Concept of doctor-patient relationship forms foundation of legal obligations between doctor and patient."

The case goes back to 2013 when the mother of the complainant was having problems in the workings of the upper and lower limb and at the end of May 2013, her condition gradually deteriorated. After consulting a doctor the patient underwent MRI on June 4, 2013. When the complainant along with his mother approached the treating Neurosurgeon, he examined the MRI report and informed that there was some compression in the patient's spine and it was causing weakness in the limbs.

Also Read: Lasik Surgery Caused Retinal Displacement: Consumer Court holds Doctor, Hospital Guilty Of Medical Negligence

Warning that without surgery the condition could deteriorate, the treating doctor advised surgery. On June 10, 2013, the patient was operated on and the treating doctor informed the family members of the patient that the spine surgery was successful and the patient would recover soon.

The doctor demanded Rs 50,000 as a fee and Rs 1,24,000 for operation and post-operative stay of the patient, who got discharged from the treating hospital on June 14. As the treating doctor asked to bring the patient for a post-operative check-up, the complainant took her mother for the same and informed the doctor that the patient's right shoulder was lifted upwards and there was not the only difficulty in its movement but also there was pain in it. The complainant and his brother further informed the doctor that there was no improvement in the strength of the limbs even 10 days after the surgery.

Following this, the treating doctor advised for an X-ray and further asked the complainant to consult an orthopedic surgeon to diagnose if there was any ortho-related new problem in the shoulder. However, two orthopedic surgeons who were consulted opined that there was no local pathology in the shoulder.

Although the patient was undergoing daily physiotherapy as advised by the treating doctor, her condition gradually deteriorated and after for a whole month, the complainant again visited the treating doctor, who insisted that the surgery done by him should be re-evaluated through a post surgery MRI after which he prescribed another MRI of the cervical spine and of right shoulder. The reports confirmed that compression was found at the same level as it was before the surgery.

On July 30, 2013, the complainant consulted two leading neurosurgeons and two spine surgeons in Delhi. All of them confirmed that the cervical spine was still unstable as the compression continued and it needed another surgery for fixing the problems.

Meanwhile, as 50 days had passed, due to immobility the patient's condition further deteriorated. She developed a urinary traction infection which led to septicemia. After undergoing treatment at a Ludhiana-based hospital for several days and remaining in the ICU for seven days, the doctors managed to bring her back to life.

Alleging the treating doctor, who conducted the surgery, responsible for the mental and physical trauma as suffered by the patient, the complainant filed the complaint before the Consumer court seeking Rs.19,99,999/- as compensation, along with Rs 10,000 as cost of litigation.

On the other hand, the treating doctor filed a separate reply and contested all claims as made by the complainant. He argued that the complainant was liable to be dismissed as the complainant had even not mentioned regarding wrong treatment or suffering any kind of problem due to the treatment.

He submitted before the Commission that the MRI of the patient revealed grade II spondylosisthesis of C4 over C5 with reduced height of C5 vertebral body along with fractures of pars interarticularis. Secondary hypertrophic changes are noted in facetal region. These changes along with the posterior disco-osteophyte complex were causing canal compromise, residual canal diameter at the level of body C5, measuring 3.5 mm. The cord was being compressed at this level along with changes of mild cord edema. Bilateral neural foramina were also stenosed causing compression of C5 roots.

He further informed the Commission that the surgery was uneventful and the patient was discharged with a satisfactory condition. In fact, the patient never visited the doctor after the first time for follow-up check up, claimed the doctor.

The complainant as evidence submitted the affidavit, discharge summary of the treating hospital, copy of cash receipt for payment, affidavit of the brother of the complainant, prescription slips of several other doctors whom the complainant consulted, and the discharge summary by the second hospital where the patient was treated after developing septicemia.

On the other hand, the treating doctor submitted his affidavit, copy of the prescription slip, and copy of the triage sheet of the patient.

After listening to all the contentions by both the parties and looking at the evidence, the Consumer Court observed the MRI report of the patient that mentioned, "findings are suggestive of compressive cervical myelopathy due to spondylolisthesis and secondary degenerative changes with resultant canal and foraminal stenosis at C4-C5 level as described."

The commission also took note of the opinions of the Delhi-based experts all of whom opined that the compression still persisted after the surgery and in fact one leading surgeon belonging to Ganga Ram Hospital noted, "compression was still continuing and another surgery was required. He also explained even put in it writing that risk of the second surgery would be very high and fraught with peril to her aging life. He also mentioned that cage/implant put in during the surgery by OP was tilted."

The Commission noted that the remarks of these doctors proved that the treating doctor did not perform the surgery as per the medical protocol. In fact, the discharge summary of the treating hospital itself mentioned, "Compressive cervical myelopathy due to spondylolisthesis and secondary degenerative changes with resultant canal and foraminal stenosis at C4-C5 level."

After perusing the x-ray reports of the patient, affidavit of witnesses and different views of Spine/Neuro Surgeons, the Commission concluded that the treating doctor failed in performing the surgery of the patient as per medical standard protocol. It has also confirmed that compression persisted on the spinal cord and the surgery had failed to remove it.

After referring to several Supreme Court and other judgments, the Commission noted

"Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: "duty", "breach" and "resulting damage."

"The treatment given to patient by doctor based on liability of medical practitioner. There is an unwritten contract between the two. Patient entrust himself to doctor that doctor agrees to do his best at all times for patient. Such doctor-patient contract is almost always an implied contract except when written informed consent is obtained," further mentioned the Commission referring to the Apex Court judgment in Dr. P.B Desai vs. State of Maharashtra and another.

Further opining that the principle of res ipsa loquitur is applicable in the case, the Commission observed that the treating doctor didn't produce any document to support of his case that he is qualified to perform his duty.

Thus, finding the doctor negligent, the Consumer Court awarded the complainant a compensation of Rs 5 lakh including expenses incurred by the complainant and compensation for mental harassment faced by the complainant. The Commission further directed the treating doctor to pay Rs 7,000 as cost of litigation to the complainant and Rs 3000 as costs in Consumer Legal Aid Account.