Loss of Sense below Rib Cage after Scoliosis Correction: Kokilaben Dhirubhai Ambani Hospital, doctor slapped Rs 40 lakh compensation

New Delhi: Holding Kokilaben Dhirubhai Ambani Hospital and its doctor guilty of negligence while operating in a patient for correction of scoliosis, the National Consumer Disputes Redressal Commission (NCDRC) recently directed them to pay Rs 40 lakh compensation to the patient within 6 weeks.

After the operation, the patient loss senses below the rib cage and thereafter had approached the Apex Consumer Court seeking compensation. The Commission held that there was deficiency on the part of the doctor for not obtaining proper "Informed Consent" and for not taking opinion from a competent Neurosurgeon.

The bench observed, "the OP-2 is held liable for the act of 'Commission' and 'Omission' during the treatment of the patient. Also, the hospital is vicariously liable for the deficiency in services. It was the duty of hospital to ensure standard of patient care. The doctors or the concerned staff were accountable, who failed to adhere to the Standard operating procedures (SOP)."

The matter goes back to 2004 when the complainant patient had approached Sir Ganga Ram Hospital, Delhi for his kypho-scoliosis' spinal deformity and he was consequently diagnosed as D3-D7 intra-medullary tumour. After operating on the patient, the doctors of the hospital had reported it as 'Ganglioglioma' i.e. a non-canceoous tumour. However, the parents of the patient, who was minor at that time, had been advised to keep watch for growth of the tumour. Accordingly, every year MRI was conducted. 

Thereafter back in 2012, MRI revealed shrunken size of the tumour and the parents sought opinion from Sir Ganga Ram Hospital for correction of scoliosis. However, the doctors opined possibility of correction of deformity up to maximum 50 to 60% only. Meanwhile, the complainant got transferred to Ahmedabad, where they sought further consultation at another hospital. The doctors of Ahmedabad based Shalvy hospital had informed that 65% correction of scoliosis was possible. Accordingly, they had advised the patient to undergo surgery.

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In the meantime, the patient consulted another doctor, an orthopedician at Kokilaben Dhirubhai Ambani Hospital, where the dcotor after conducting tests had informed that since the spine was very flexible, correction up to 80% to 90% was possible. However, the surgery was deferred since the 'Neuro-Monitoring' machine of the hospital was under maintenance. 

Allegedly, the operation was conducted on 23.04.2014 without taking any consent. After the operation, even though the patient regained consciousness, he was not moving his legs. Therefore, re-surgery was necessary for releasing the implants and to reduce the correction as carried out in the spine. However, after the surgery, the parents of the patient were shocked to learn that there was no leg movements and the patient had lost senses below his chest (rib and cage). 

The condition of the patient deteriorated gradually. He was discharged from the hospital in paraplegic condition with no senses below rib cage, no bowel and urine control. Therefore, the patient sought treatment from Dhirubhai Ambani Occupational Health from 27.07.2014 to 07.02.2015. Despite consulting several doctors, the patient's condition did not improve. On the basis of the advise by doctors, CT Myelography test had been performed and it revealed that D-* vertebra slightly wedged before surgery and it got totally crushed during the surgery indicating severe stretching or blockage at the point of vertebra. 

Therefore, alleging gross carelessness and deficiency in services at Kokilaben Dhirubhai Ambani Hospital, the patient approached the Consumer Court and filed a complaint under Section 21 of the Consumer Protection Act, 1986 and prayed Rs. 58,92,02,000 as compensation along with interest and other relief.

On the other hand, the doctors of the concerned hospital submitted that the patient's parents had been advised against deformity correction at the age of patient. It was further submitted by the hospital that the family of the patient had been informed that because of residual spinal tumour, the patient had risk of neurological worsening and paralysis. However, the patient and his parents were convinced and they allegedly agreed for need of surgery to extent of deformity and pain.

Further, Dr. Bapat informed the top consumer court about the use of 'Neuro-Monitoring' to prevent risk of paraplegia. Allegedly, the spinal correction surgery had been conducted smoothly and the 'Neuro-Monitoring' team had reported normal signals till the commencement of wound closure. Referring to the fact that the patient was unable to move his legs, the doctors submitted that MRI had been performed as per the operating procedure and the implant position was found to be optimal.

Referring to the entire medical procedure and treatment provided to the patient after the surgery, the doctors and the hospital claimed that it was a known complication and no doctor would ever wish it to happen to his patient.

After considering the arguments by both the sides, the NCDRC bench referred to the "Informed Consent" and noted that "the Consent for anaesthesia and for operation is on record. The Consent for operation lacks the ingredients of Informed Consent. The risks of paraplegia/paralysis during the Kyphoscoliosis surgery was not mentioned or explained to the Complainants or the patient."

While the bench had questioned the AR about it, he had submitted that the patient had the knowledge of spinal surgery and moreover during every visit and discussion with the treating doctor, it was explained to the patient and his parents about the operation and its complications etc. However, in this regard, the Apex consumer court noted, "The documents on record are unsigned prescriptions which in my view it does not construed as "informed consent". Thus it is evident that the OP-2 failed to obtain informed consent for surgery in the instant case."

"The law of medical consent has been undergoing changes in recent years evolving towards a more patient centric standard of disclosure. Patients' expectations are higher and they are aware of exercising their rights. The responsibility of the doctor (neuro/ ortho surgeon) is to provide the patient with all information pertinent to the medical decision in an optimally comprehensible manner. The lack of informed consent is the basis for a large portion of negligence litigations in neurosurgery," the Commission noted at this outset.

"The two well recognized exceptions for informed consent to medical treatment that one is a medical emergency and another is rare, when by certain court-ordered treatments or tests mandated by law. In the instant case it was a planned surgery, which needs proper informed consent," it further added.

Opining that before performing the surgery, the doctor should have sought opinion from a competent Neurosurgeon, the Commission observed that the doctor had failed in his duty of care and mentioned, "It is pertinent to note that, in year 2004 during patient spinal tumour was operated in his childhood. After span of one decade, in 2014 the Spinal Scoliosis correction surgery performed by the OP-2. Therefore, in my view, prior to surgery it was the duty of OP-2 to conduct nerve conduction studies and neurological assessment. It was also necessary to seek opinion or assistance of competent Neurosurgeon before surgery and also during surgery. It was the failure of duty of care from OP-2."

"The role of Orthopaedic surgeon in Spinal surgery is restricted to the bony structure or correction of deformity but if there is neural tissue involvement, then the operating team shall consists a Neurosurgeon. From the medical literature it is known that during large spinal curve correction, more chances of excessive cord stretching, leading to neuro-deficit. Moreover, usually the patients with congenital scoliosis have spinal cord malformations also. The best age for corrective surgery is 18 years, but it was not very conducive for the patient who was 22 years old unless it was life threatening. In the instant case the OP-2 did not seek opinion of Neurosurgeon before putting a knife. The MRI report revealed D8 vertebra was slightly wedged out, which could likely to get collapsed while use of force during straightening the spine," further observed the NCDRC bench.

Referring to the deferment of the surgery because of the non availability of Neuro Monitoring Machine, the bench observed, "The hospital (OP-1) failed to provide the purchase invoice, installation report, training record of the operating person of Neuro-Monitoring Machine used during the instant surgery. The OP-1 deliberately concealed Annual Maintenance Contract(AMC), service report of the machine which used , but filed AMC service report of the machine which was not used during the surgery. Also, the statements of the Neurotechnologist Ms. Parichar Jassawala and the Neurophysiologist Dr. Sunita Iyer were contradictory to each other on the Neuro-monitoring and interpretation of its reports in the instant case. Moreover, the qualification of neuro-technician raises many doubts."

At this outset, the Commission referred to the Supreme Court order in the case of Dr. Laxmn B. Joshi vs Dr. Trimbak B Godbole & Anr. and noted, "Though the mode of treatment/ skill differ from doctor to doctor and if he performs his duty with reasonableness and with due care, he cannot be held negligent. However in the instant case it was deficiency in service and failure of duty of care from the OP-2 who performed the spinal surgery without an informed consent and without the assistance of Neurosurgeon. The operative notes are devoid of many details viz the time of commencement of the surgery, closure of wounds, the time of wake up test was done and the patient's loss of legs movements and when the corrective surgery commenced and ended. The Neuro- monitoring details are not available. The corrective surgery was performed after delay of 4 hours which was sufficient to cause permanent damage to the cord."

Therefore, holding the treating doctor and the hospital negligent during the treatment of the patient, the NCDRC bench directed them to pay Rs 40 lakh compensation. The ordered stated in this regard, "Based on the discussion above, in the ends of justice , in my view, ₹ 40 lakh shall be the just and adequate compensation be paid to the Complainants by the OP-1 hospital and the treating doctor OP-2 in equal proportion within 6 weeks from today. Beyond 6 weeks the entire amount shall carry the interest at rate of 9% per annum till its realization."

To read the court order, click on the link below:

https://medicaldialogues.in/pdf_upload/ncdrc-rs-40-lakh-195300.pdf

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