Dr. S.K. Bansal vs Harjit Kaur & 2 Ors.

Dr. S. M. Kantikar, Member

The petitioner has filed the instant revision petition against the Order dated 20.08.2013 passed by the State Commission Punjab in First Appeal No. 361 of 2009, wherein the State Commission, allowed the Appeal filed by the Complainant and held the OPs liable for medical negligence.

Brief facts are that in the year 2001, the Complainant Harjit Kaur (for short, the patient') was suffering from severe headache. She took treatment from local doctors, but got no relief, therefore, went to PGI, Chandigarh where on 20.02.2002, her CT scan was performed. It revealed a well-defined hyper dense lesion inferiorly attached to the left optic nerve. Further, on 04.04.2002, she underwent MRI which revealed a well-defined 2.5x2cm round lesion in the intraconal compartment of left eye. The operation was suggested but she could not get operated at PGI, because her husband met with an accident. Therefore, in the 3rd week of April 2002, she visited Arora Neuro Centre and consulted Dr. O. P. Arora (OP-1) and Dr. S. K. Bansal (OP-2). She showed all the reports of PGI, Chandigarh. The OPs 1 & 2 told that they are expert in the field of neuro surgery and the operation to remove the lesion from left eye could be done at their Centre and she will be cured. On the assurance of OPs, the patient got admitted in the Arora Neuro Centre on 01.05.2002 and was operated on 03.05.2002. The patient was discharged on 11.05.2002. It was alleged that the doctors did not remove the lesion during surgery and there was no improvement. The patient, for her headache, again visited the OP's hospital on 16.05.2002. The OPs told that it was a fresh operation and the headache will be alright after 2-3 days. Thereafter, periodically patient visited the OPs (03.06.2002, 17.06.2002 and 17.07.2002), but only medicines were prescribed, however, her condition did not improve. On 16.08.2002 MRI was done again at Arora Neuro Centre, which brought surprise to the patient that the intraconal mass (2.1x2.1) was still visible. It was alleged that the OP doctors have not removed the lesion from the left eye. Therefore, finally she approached PGI again and on 06.11.2002 CT scan and MRI were conducted. The doctors at PGI compared both MRIs (04.04.2002 and 06.11.2002) which revealed no appreciable change in the size of the intraconal mass lesion. Dr. K. K. Mukherjee at PGI operated the patient on 25.11.2002. Thereafter, patient got cure from her headache. Thus, being aggrieved by the alleged negligence of the OP doctors who failed to treat correctly, a Consumer Complaint was filed by the complainant/patient before the District Forum, Ludhiana.

The OPs filed their written versions and denied the allegations of deficiency and negligence during the treatment of the patient. The patient was admitted in Arora Neuro Centre on 01.05.2002 with complaints of headache, pain on eye movement. On examination, there was no protrusion of eye ball, but her vision was normal. CT scan done on 20.02.2002 at PGI, Chandigarh showed left proptosis with well-defined hyper dense (i.e. solid) lesion inferior, attached to left optic nerve. MRI scan dated 04.04.2002 showed a well-defined mass of 2.0x2.5 cm, but the inferior rectus was not seen separately from the lesion, but optic nerve was seen separately from mass. Informed consent was taken and it was specifically explained to the patient and her husband about the chances of improvement and risk of incomplete removal of tumour. The operation was conducted on 03.05.2002. During operation it was found that the optic nerve was normal and no cystic mass attached to it as suspected in MRI. Inferior rectus muscle looked bulky and biopsy was taken and sent for histopathological examination (HPE) to G.J. Diagnostic, Ludhiana. The HPE showed hypertrophied skeletal muscle along with a mild acute and chronic inflammatory infiltrate and there was no evidence of malignancy.

On appraisal of evidence from both the sides, the District Forum dismissed the complaint. Being aggrieved, the complainant filed the first appeal before the State Commission, Punjab, which was allowed and the Order of District Forum was set aside. The State Commission held that the petitioner/OP-2 was liable for medical negligence and dismissed the complaint against the OPs/respondents no. 1 and 3. The State Commission directed the petitioner to pay Rs. 5 lakh as compensation to the complainant within 45 days of receipt of the order, failing which the amount will earn an interest @ 7.5% per annum till its realization.

Being aggrieved by the impugned Order of the State Commission the OP-2/ petitioner has filed the instant revision.

We have heard the arguments of the learned counsel for both the sides and perused the material on record including interalia all the CT and MRI reports, the operative findings and HPE report.

The learned counsel for petitioner argued that there was no negligence in the treatment of OP-2. The patient's attendants were fully explained about the operation and the prognosis. From the operative details of 2nd operation done at PGI, even the surgeon was not sure about the nature of tumour. The CT scan and MRI done at PGI clearly mentioned that inferior rectus muscle was not seen separately from the mass which could be enlargement of the muscle with a possibility of pseudo tumour. In case of optic nerve glioma, there should be enlargement of the optic nerve. The post-operative MRI dated 06.09.2003 at PGI showed recurrence of tumour, thus guarantee about complete cure in such cases is not assured.

We gave our thoughtful consideration to the arguments of both the sides, perused all MRI reports and gone through the medical literature on the Optic Neuroma/Glioma. Admittedly the diagnostic accuracy of CT scan & MRI is high and it can easily diagnose optic nerve glioma. However, in the reports of CT and MRI-scan done at PGI, nothing is stated about optic nerve glioma, however, it has been noted that the inferior rectus muscle was not separately visible from the suspected mass. Thus, in our view, it could be enlargement of the muscle with a possibility of pseudo tumour. The optic nerve was clearly seen separate from the mass, whereas if it was a case of optic nerve glioma, the enlargement of the optic nerve was obvious.

We have gone through the medical literature and the text books on Neurosurgery viz Ramamurthi & Tandon's Textbook of Neurosurgery (3rd ed), Youmans Neurological Surgery (6th ed) and Schwartz's Neurosurgery.

The optic nerve glioma or juvenile pilocytic astrocytoma is a slow-growing tumour, which typically affects children and comprises about 1% of all intracranial tumours. frequently present in the first decade with a median age of 6.5 years. It causes slowly progressive visual loss, followed later by proptosis. Gradual, painless, unilateral proptosis associated with loss of vision and an afferent pupillary defect is a common presentation. Proptosis often is non-axial, with temporal or inferior dystopia. About 50% cases it is found in the Optic Chiasm where the left and right optic nerves cross. Unilateral involvement, no pain on extraocular movement, no systemic inflammatory signs at around the onset of visual loss, no additional white-matter abnormality or recurrent visual symptoms during follow-up period might support a diagnosis of optic-nerve glioma rather than optic neuritis in childhood. It is rarely found in individuals over the age of 20. It has also been associated with the genetic disorder neurofibromatosis (NF1).

Whereas, the idiopathic orbital inflammation, often called orbital pseudo-tumour or orbital inflammatory syndrome, can affect every structure in the orbit, including the lacrimal gland, extra-ocular muscles, orbital fat, and the optic nerve. It is a benign intraorbital process confined to the orbit but extra orbital involvement can occur. Orbital pseudo-tumour typically affects patients less than 50 years old and may occur unilaterally or bilaterally with emphasis on specific diagnostic challenges in the evaluation and management of patients with this disorder. It is a chronic condition that acts much like a brain tumour. Unlike a tumour, however, the pseudo-tumour does not spread and does not invade nearby tissues; however, compress nearby structures is the most common cause of painful orbital mass in adults. Orbital pseudotumor Patients may present with diplopia, conjunctival chemosis, proptosis. The CT scan findings are abnormal.

On careful perusal some discrepancy was seen in the CT scan (20.02.2002) and MRI (04.04.2002) reports done at PGI. The CT scan was suggestive of a hyperdense mass - a solid mass attached to optic nerve whereas MRI was suggestive of cystic mass not attached to optic nerve. However, it is apparent from both the reports that the inferior rectus muscle was not well defined or seen. The OP-2 made a provisional diagnosis of left orbital tumour based on the clinical history, examination and the investigations (CT-scan, MRI report) the OP-2 advised surgery for the patient. It was neither breach in the duty of care, nor negligence of OP-2 .

11 We note that the patient was operated on 03.05.2002 and at the time of operation the OP-1 visualized the Optic nerve clearly in normal appearance. There was neither mass attached to optic nerve nor any cystic mass as suspected in MRI. However, inferior rectus muscle was hypertrophied (pseudotumour). As per the standard procedure OP-2 took a biopsy of hypertrophied inferior rectus muscle and sent for HPE study, thus there was no negligence during the surgery. The HPE report from G.J. Diagnostics, Ludhiana showed Hypertrophied skeletal muscle along with a mild acute and chronic inflammatory infiltrate in perimysium and no evidence of malignancy. Thus, the patient's symptoms, the operative findings of OP-2 and the HPE report it was certainly not conclusively optic nerve glioma. The State Commission erroneously held that the tumour was not removed by the OP-2. In fact there was no tumour - it was a pseudo-tumour.

It is pertinent to note that before the District Forum, the Complainant has not attached the entire medical record and the discharge summary of PGI, Chandigarh wherein he underwent operation on 25.11.2002. All the CT and MRI reports done at Arora Neuro Centre and PGI, Chandigarh are not conclusive of the tumour, but it was reported as the cystic lesion in relation to inferior rectus muscle separate from optic nerve and suspected multiple meningioma. Even the histopathology report, though it suggests optic nerve glioma, did not corroborate with the CT and MRI findings. The chances of recurrence or different pathology cannot be ruled out after almost 6 months of initial surgery.

We would like to rely upon few decisions of Hon'ble Supreme Court in the cases of medical negligence. It was held that the doctor is not liable for negligence if he performs his duty with reasonable care. The mode of treatment and skill differ from doctor to doctor. In Achutrao Haribhau Khodwa and others versus State of Maharashtra and others, (1996) 2 SCC 634, the Hon'ble Supreme Court held that;

"The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession, and the Court finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence."

In the instant case the OP-2 performed his duties to best of his expertise in Neurosurgery. The patient was operated and the biopsy from the hypertrophied inferior rectus muscle was taken. It is known that the preoperative CT scan or MRI generally underestimates the actual pathology found by the surgeon in certain ocular cases. The decision for surgical intervention should not be based on the radiological interpretation of certain structures, and the surgeons should be prepared to encounter conditions which are not reported by the radiologist preoperatively, and modify the operating strategy accordingly. The ingredients of medical negligence are not observed.

Based on the foregoing discussion, we find that the State Commission erred in its observation. The deficiency in service and medical negligence are not conclusively established against the petitioner / OP-2. The impugned order of State Commission is set aside and the Revision Petition is allowed.

Consequently, the Complaint is dismissed.