Lack of care, mere accident not evidence of Medical Negligence: NCDRC exonerates ENT Surgeon, Hospital after 22 years

New Delhi: Reiterating the orders of the Supreme Court, which had earlier implied that simple lack of care, an error of judgment or an accident, does not prove medical negligence, the National Consumer Disputes Redressal Commission (NCDRC) recently exonerated an ENT surgeon from a medical negligence case around 22 years ago.

The patient had alleged negligence on the part of the doctor and Lourdes Hospital, Ernakulam while conducting Functional Endoscopic Sinus Surgery (FESS), leading to perforation of the lower bony wall of the frontal lobe ultimately causing repeated infections in the brain.

However, exonerating both the ENT surgeon and the hospital, the NCDRC bench noted, "As per the medical literature the Functional Endoscopic Sinus Surgery (FESS) is an easy, fast and effective surgical procedure for treating rhinosinusitis that is not responsive to medical therapy. There are no major post-FESS complications. As discussed above in the instant case the suspected bony fragment was due to an error of judgment during FESS. The CT findings are also confirmatory because of chronic inflammatory charges and thickening of mucosa. There was significant improvement after taking antibiotics. Thus negligence cannot be attributed to the FESS performed by OP-2 doctor."

The history of the case goes around 25 years back in the year 1997 when the Complainant underwent a Functional Endoscopic Sinus Surgery (FESS) on his right sinus at Lissie Hospital, Emakulam. Following this, back in 2000, he suffered sinusitis of left side and underwent FESS at Ernakulam based Lourdes Hospital, where an ENT surgeon Dr PYJohan operated on the patient.

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It had been alleged by the complainant that after discharge, he started developing severe headache and fever and symptoms of intracranial injury. However, the treating surgeon informed him that the headache was due to left side nasal packing, which was removed a few days later. Since the headache did not stop. the complainant got admitted again to Lourdes Hospital.

Following this, he had been given antibiotics but the headache persisted and he started vomiting afterward. Therefore, a physician examined him and referred him to Neuro Physician. CT Scan brain was done, which revealed regional odoema with partial effacement and elevation of left frontal horn and a small hyper-dense opacity in the inferior part of left frontal lobe about 1.2 cm above the ciiaphragma sellae. It was alleged to be a bony fragment measuring 5-6mm.

Another CT scan was done on 17.07.2000 at the same hospital. The results showed same findings. It was alleged by the complainant that in order to conceal the negligence the ENT surgeon delayed referring him to a Neurosurgeon and manipulated the medical records. Ultimately, the patient was taken to Christian Medical College, Vellore. Another CT scan performed at CMC Vellore confirmed Intracranial extension and frontal cerebritis along with abscess formation. He was advised to continue higher antibiotics for a further period of 6 weeks. After the above period, he again consulted the doctors at CMC, Vellore and the repeated CT Scan showed considerable improvement in the abscess and cerebritis. However, the presence of displaced bony fragment was seen.

Aggrieved due to the alleged medical negligence, the complainant approached the State Commission and claimed compensation amounting to Rs 13 lakh.

On the other hand, the hospital and the surgeon denied all the allegations and claimed that there was no surgical accident while conducting FESS and no surgery had been done on fontal sinus. It was done in the maxillary and ethmoid sinuses and he was advised to continue medicines.

After taking note of the submissions and perusing the evidence on record, the State Commission partly allowed the complaint and directed the hospital and the doctor to pay a compensation of Rs 3 lakh to the complainant. Aggrieved, the complainant filed an appeal for enhancement of compensation and the hospital and the surgeon filed an appeal seeking a dismissal of the complaint on merit.

"It is pertinent to note the FESS was done on maxillary and ethmoid sinuses, which is away from frontal sinus. Thus possibility of injury to the frontal bone is very remote. The reports revealed the patient had mild infection at the displaced bone in the frontal sinus. The OP-2 treated the patient with higher antibiotics which showed improvements. Also it should be borne in mind that if the complication arose from FESS, there will be CSF leak."

Referring to the CT scan reports, the bench pointed out that the first report revealed "mucosal thickening and opacification" and the CT scan report done after FESS revealed "focal cerebritis of left frontal lobe with abscess formation and it was suspected as ? displaced bony fragment in frontal region."

At this outset, the Apex Consumer Court noted,

"On 17.07.2000, limited plain axial CT of frontal region was performed and it revealed the size of focal lesion and oedema remain the same. It was diagnosed as ? bony fragment ?? Calcification in the sinus wall. Thus, it was no definitive diagnosis of presence of bony fragment."

Following this, NCDRC bench noted that another CT scan had been done two months later at Little Flower Hospital. The report revealed significant improvement of the edema but the existence of a bony fragment having the size of 8 X 4, mm in the left cranial fossa with a corresponding bony gap of 3 mm size. There was minimal edema around the bony fragment.

It was the allegation of the complainant that it was perforation of the lower bony wall of the frontal lobe and the presence and presence of bony fragment would cause repeated infections of the brain. 

However, referring to this allegation, the top consumer court bench noted,

"As per literature, due to error of judgment there are chances of injury to the thin bone at the base of frontal sinus; however such displacement of bony fragment in frontal sinus is not possible during FESS performed on maxillary and ethmoid sinuses. The CT scan report before surgery also shows thickening of mucosa due to chronic process. Further, the patient was referred to Neurologist for further assessment. The allegation of loss of memory and headache due to FESS is not sustainable."

The bench also referred to the fact that the patient had also consulted the CMC Vellore for his problems of persistent headache and the doctor in there had advised him to take antibiotics for 6 weeks, after which the patient showed considerable improvement. At this outset, the bench noted,

"Thus, considering radiological findings in its entirety admittedly there was suspected tiny bony fragment. It was not confirmed diagnosis. As per the medical literature the Functional Endoscopic Sinus Surgery (FESS) is an easy, fast and effective surgical procedure for treating rhinosinusitis that is not responsive to medical therapy. There are no major post-FESS complications. As discussed above in the instant case the suspected bony fragment was due to an error of judgment during FESS. The CT findings are also confirmatory because of chronic inflammatory charges and thickening of mucosa. There was significant improvement after taking antibiotics. Thus negligence cannot be attributed to the FESS performed by OP-2 doctor."

While exonerating the doctor, the bench also referred to the Supreme Court order in the case of Chanda Rani Akhouri vs. M. S. Methusethupathi, where it was held that Simple lack of care, an error of judgement or an accident, is not a proof of negligence on the part of a medical professional. Referrence was also made to top court's order in the case of Jacob Mathew vs. State of Punjab and Anr., where similar views were made. In the case of Jacob Mathew, the top court had held,

"A mere deviation from normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere accident is not evidence of negligence. So also an error of judgment on the part of a professional is not negligence per se."

Therefore, referring to the previous orders of the Supreme Court, the bench noted, "Based on the discussion above, FA/112/2011 is allowed and FA/379/2011 is dismissed. Consequently, the Complaint is dismissed. We note that the State Commission awarded Rs.3 lakh, therefore in case, if the Complainant had received any amount from the State Commission, the Opposite Parties now at this stage, shall not seek its refund from the Complainant."