No medical negligence: Consumer court exonerates Ruby Hall Clinic, neurosurgeons in brain tumour case

"The findings arrived at by the Learned District Consumer Commission are not proper and correct. It appears that the Learned District Consumer Commission has not considered the defence of the Opposite Parties in proper perspective and came to an incorrect conclusion, which requires to be set aside," observed the State Consumer Court while allowing the appeal filed by the Hospital and the doctors.

Background: 

The history of the case goes back to 2003, when the patient was suffering from a persistent headache and consulted Dr. Wadia, a consulting neurologist at Ruby Hall Clinic. After examination, an MRI was taken and the report revealed that the focal lesion in the left CP angle cistern extending into the left internal auditory Meatus, consistent with acoustic schwannoma, measuring 25 X 27 mm., and the same was causing brain stem and IV ventricular compression.

On the same day, a neurosurgeon, Dr. Bajpayee, examined the complainant and advised surgery. Accordingly, the complainant got admitted to the hospital and various investigations were carried out. Consequently, Dr. Vhora and Dr. Bajpayee performed the complainant's operation for acoustic neuroma. They claimed that 75% tumour was removed by the operation.

It was alleged that within two weeks from the date of discharge, the complainant started suffering from side effects, and when she visited the treating hospital, another CT Scan revealed there was a solid mass lesion in the left CP angle cistern measuring 30 X 20 mm, in size. The Complainant was shocked to learn that size of the tumour remained almost the same, even after operation and she developed partial (L) VII (N) Palsy. Therefore, the Complainant was advised second surgery at the earliest. It was submitted that without removing the tumour in earlier surgery, false claim of removal of 75% tumour was made and thereby, she was cheated. Saying that there was deterioration in the health condition, she alleged acute negligence on the part of the hospital and the doctors.

Later, the patient received treatment from another doctor at Jaslok Hospital. Later, an EMG for assessment of her facial nerve was done. Accordingly, she came for investigation at Jehangir Hospital in Pune, and the reports of the investigation suggested left facial nerve involvement and partial right nerve involvement.

The complainant claimed that due to negligence on the part of the treating doctors at Ruby Hall Clinic, she suffered trauma. She also alleged that she was not given proper treatment, which resulted in her disfiguration and consequential predicament. The surgery was allegedly not performed with due care and caution. Allegations of charging exorbitant fees for an unsuccessful surgery were also made. Accordingly, the complainant filed the consumer complaint and claimed Rs 11,30,910 as compensation from the hospital and the doctors.

On the other hand, the hospital and the doctors argued that the treating neurosurgeons carried out a very complicated operation, which lasted for 5.5 hours and all the instruments used in the operation were clinically tested and were modern in nature. It was also contended that before the surgery, the complainant and her husband were informed about the risk factor.

Further, it was contended that the operation was successful and the tumour to the extent of 75% was removed but due to the risk factor, removal of the remaining part of surgery was abandoned. Accordingly, the noting was made in the surgical report. It was argued that the tumour was old, large and adherent to the brain stem, and it could not be removed completely. The hospital and the doctors justified their action to avoid a life-threatening situation for the patient. Therefore, the operation was abandoned. They also denied the allegations of exorbitant charges.

District Commission's order & further proceedings:

After going through the evidence and documents on record, the District Consumer Court allowed the consumer complaint and directed the hospital and two neurosurgeons, who operated on the patient, to pay Rs 3,20,910 to the complainant jointly and severally within a period of two months. The complaint against the consulting neurologist, Dr. Wadia, and the Radiologist was dismissed.

Challenging the District Commission's order, the hospital and the neurosurgeons filed an appeal before the State Consumer Court. They argued that the surgery was abandoned to save the complainant's life. It was contended that there was no negligence on the part of the operating neurosurgeons as they made every effort to save the patient and also removed the tumour to the extent of 75%.

It was also argued that there was a cavity after removal of the tumour, which was filled in with 'Surgicel' to stop the haemorrhage. Therefore, the size of the tumor was not seen to be reduced in the subsequent CT scan. It was contended that the tissue of the tumour was shown to the complainant and her husband after the surgery and they themselves had inspected it before it was sent for biopsy. Therefore, the Complainant’s allegation that the tissue was not provided to them or that she was unaware of it is absurd and factually incorrect.

Further, the hospital and the neurosurgeons argued that after the surgery, the complainant was advised to return for a reassessment after the initial procedure. This assessment was made under challenging conditions, as the cerebrum was significantly swollen at that time. At most, this could be considered an error of judgment, which does not constitute negligence, as it caused no harm to the patient’s life. It was not a deliberate or reckless act on the part of the surgeon, they submitted.

They also submitted that since the surgery had to be repeated again to remove the tumour, the complainant was asked to come back after the surgery for a reassessment. The opinion of the doctor performing surgery that the tumour was removed 75% was an estimation based on visual sight, after the surgery by the concerned surgeon and that too when the entire cerebrum was swollen and at the most be considered as an error of judgment, which does not cause any harm to the life of the patient, and not a deliberate act of negligence on the part of the surgeon performing the surgery, they submitted.

Observations by State Consumer Court: 

After considering the submissions made by both parties, the consumer court observed that "Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do."

"The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires," further observed the Commission.

On going through the records, the Commission observed that the complainant herself produced on record the medical papers, operation notes, where it was mentioned that as the cerebellar swelling was increased to such an extent that the surgeons had to abandon the surgery, otherwise the (L) cerebellum would have to be sacrificed leading to either death of the patient on the operation table or the patient would have become severely disabled or invalid and she would not have been able to sit or walk independently.

"So there was cause for abandonment of surgery. The surgeons have realized the position of the patient during the operation, which lasted for 5½ hours and they abandoned the same," the State Commission observed at this outset.

Further, the consumer court observed that the complainant produced on record the note of the surgeons made after the second operation at Jaslok Hospital, where there was specific mention in the note stating that the complainant was previously operated by the treating doctor at First Hospital, and the note also mentioned that the tumour was partially removed.

"On going through the said note, it can be said that the surgeon of the Jaslok Hospital has categorically mentioned that the tumor was partially removed but he was not aware of the reason for not removal of the entire tumor. So the contention of the complainant that there was no removal of tumor cannot be accepted. Similarly, there is no opinion of surgeon of Jaslok Hospital that the earlier surgery was not done properly or other was some lacuna in the procedure adopted by the surgeons of the Opposite Party no.1 Hospital. In fact, there should have been expert opinion as to whether the procedure/surgery carried out by the Opposite Party nos.3 & 4 (neurosurgeons) was not proper or was not done properly, but no such evidence is led by the complainant. The complainant is a layman," observed the Commission.

Further noting that the complainant did not produce any expert opinion, the Commission observed,

"It is the case of the complainant that the Opposite Party nos.3 & 4  were negligent in performing the operation. But it is again the personal opinion of the complainant. Admittedly, there is no expert opinion on the point of the procedure adopted by the Opposite Party nos.3 & 4. No doubt, such opinion could have been expressed by the surgeon of the Jaslok Hospital, when he treated the complainant after the first operation. But we have already observed that the surgeon of the Jaslok Hospital also noted that the complainant was operated and there was partial removal of the tumor. So we are of the considered opinion that whatever allegations made by the complainant regarding the performance of operation by the Opposite Party nos.3 & 4 are personal in nature and there is no medical evidence to establish the negligence on the part of the Opposite Party nos.3 & 4 while performing the operation."

The State Consumer Court also observed that while the complainant claimed negligence during the surgery at the first hospital, she did not make any submissions stating that she got relief after the second surgery at Jaslok Hospital.

"There is no whisper in the complaint of the complainant that after the second surgery, she got relief. In fact, the complainant never entered into the witness box. Similarly, her latest position is not brought on record by way of evidence in the complaint. The complainant has simply stated that she underwent second surgery but he has not given detailed information regarding day to day life of the complainant. In fact, that is not material also. But if the complainant would have got complete relief from the second operation, then there was scope to hold that the first operation was failed. Even if it is held that the first operation was not successful, it cannot be called as negligence on the part of the Opposite Party nos.3 & 4. Sometimes there is possibility that the surgeons take decision for operation but in all cases it does not happen that the patient gets complete relief. Sometimes, even after the operation, the patient does not get complete relief. But that does not mean that the surgeons committed any negligence. They cannot assure the positive result of the operation at every time. So we are of the opinion that the complainant has failed to establish the basic case that the Opposite Party nos.3 & 4 were negligent and they have not performed the operation upto the mark. On this point, we are required to consider the case laws relied upon by the parties," it observed.

After relying on the judicial precedence, the commission discussed the reasons why a tumour can increase or recur even after an operation. It clarified that "Mere abandonment of surgery cannot be called as negligence."

Highlighting the lack of expert opinion to substantiate the claims of medical negligence, the consumer court observed,

"As we have observed that no expert opinion is brought on record to establish that the procedure adopted and the course of action taken by the Opposite Party nos.3 & 4 was not proper and correct and acceptable to the medical profession, hence we are of the opinion that the complainant has failed to establish the negligence on the part of the Opposite Party nos.3 & 4 while conducting surgical procedure."

Further going through the records- at the first and second treating hospital, the period for which the patient remained admitted at both the hospitals, and the type of room the complainant availed and held,

"Therefore, it cannot be said that the complainant was charged exorbitantly. The Opposite Party no.1 had given the estimate of charges at the time of admission. Therefore, it cannot be said that the Opposite Party no.1 has played an unfair trade practice by charging exorbitantly to the complainant. We are of the opinion that on both the counts the complainant has failed to establish the deficiency in service on the part of the Opposite Parties and alleged unfair trade practice for issuing exorbitant medical bill."

Holding that the District Consumer Commission erred in passing the order, the State Consumer Court observed, "The Learned District Consumer Commission has simply relied on the version of the complainant and has not considered the plea of the Opposite Parties on the point of negligence. The Learned District Consumer Commission has not called upon the complainant to file any expert evidence to prove the negligence on the part of the Opposite Party nos.3 & 4. Similarly, the Learned District Consumer Commission has held that the Opposite Parties have charged exorbitantly to the complainant. But in fact the complainant has paid the charges as per the negotiation and Schedule of Charges of CGHS. The findings arrived at by the Learned District Consumer Commission are not proper and correct."

Accordingly, setting aside the order of the District Commission, the State Consumer Court ordered, "The amount of compensation deposited by the Opposite Parties at the time of filing of appeal shall be refunded to them after the appeal period is over. And if any appeal is preferred, then after the decision of appeal."

To view the order, click on the link below:

https://medicaldialogues.in/pdf_upload/scdrc-maharashtra-304996.pdf

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