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Judgment
MASTER Purushottam and Sh. Nagabhushanam, Complainant Nos. 1 and 2, are the son and the father, respectively. Complainant No. 1, who was born on 3.1.2005, was admitted in Apollo Children''s Heart Hospital, OP No. 1, on 15.9.2005, for treatment of intermittent fever, with cold and cough, for 15 days. Dr. K.S. Murthy, respondent No. 2, Cardiac Surgeon, examined complainant No. 1 for conducting CT and MR Scan, Ultrasound, etc. The Doctor opined that complainant No. 1 was having a large intra -thoracic tumour on the left side neuroblastoma and suggested an operation for the excision of the said thoracic tumour. On 15.9.2005, formal consent from complainant No. 2 was obtained. Dr. K.S. Murthy conducted surgery and removed the tumour but the complainant No. 1 was having weakness in the left upper limb. He was also not able to move his loft hand. The Plastic Surgeon advised physiotherapy. On 25.10.2005, complainant No. 1 was discharged with advice to take physiotherapy and to come for review after one month. Complainant No. 1 consulted Dr. Bhartendu Swain, Plastic Surgeon and Dr. G. Rajashekhar, Neurologist, who, after conducting mortar and sensory conduction study test, gave report on 17.11.2005 showing, "study shows absent responses from left in median". Reports of the conduction study test suggested severe bronchial plexus injury predominantly involving distal cord and nerves.
ON 2.1.2006, complainant No. 1 was admitted in Apollo Children''s Heart Hospital for treatment of left bronchial flexes injury under general anesthesia. He was discharged on 11.1.2006 as there was no movement of the left upper limb. The complainant No. 1 was again admitted for first cycle of chemotherapy and was discharged on 16.3.2006, likewise, for 13th cycle, he was admitted on 28.11.2006 and was discharged on 5.12.2006. There was no evidence of cancer and as such chemotherapy was stopped. On 19.2.2007, complainant No. 1 consulted Dr. S.V.S. Prasad, Oncologist, on various dates, i.e. 19.2.2007, 16.4.2007, 16.6.2007 and 8.10.2007, but he was unable to use the left wrist joint or fingers. The case of the complainants against the respondents was that due to improper surgery performed by respondent No. 2 on 15.9.2005, for the excision of thoracic tumour, resulted in immediate drop of left hand. It was contended that the principle of ''Res Ipsa Loquitour'' squarely Covers the present case.
CONSEQUENTLY , a complaint was filed before the District Forum in December, 2008, against the respondents claiming a compensation of Rs. 19,50,000 and costs of Rs. 25,000, as the complainant No. 1 Sustained loss of movement in the left hand due to gross negligence of respondent No. 1 for which he has to suffer throughout his life. The learned District Forum partly allowed the complaint and awarded a sum of Rs. 8,00,000 as compensation and Rs. 5,000 as costs, jointly and severally, against the respondents.
AGGRIEVED by that order, OP Nos. 1 and 2 filed appeal before the State Commission which accepted their appeal and dismissed the complaint. Consequently, the revision petition was filed. We have heard the learned Counsel for the petitioner at length, at the time of admission of this revision petition. He vehemently argued that due to the negligence of OP Nos. 1 and 2, the complainant No. 1 suffered paralytic attack and his left portion of the hand does not work properly. In support of his case, he has invited our attention towards the report of Dr. D. Chandrashekhar, Chief Medical Officer, dated 18.7.2008, the relevant portion of that report runs as follows: Case was referred to Paediatric Surgeon at Apollo Hospital, who again investigated and diagnosed as Neuroblastoma.
The child got admitted at Apollo Hospital on 5.9.2005 and operated on 15.9.2005 - -Excision of Thoracic Tumour.
Post operatively, the child developed weakness in the left upper limb for which he was referred to Plastic Surgeon at Apollo Hospital.
He was operated - -Excision Neuroma and Intraplexal Neurotizations on 3.1.2006. The Biopsied Cervical nods were positive for metastatic disease. He was planned for chemotherapy from 17.1.2006.
The child was admitted at Apollo on 19.1.2006 for chemotherapy. Received cycle -1 Chemotherapy with CDEC and 12 Cycles of Chemotherapy was given by 5.12.2006. PET CT evaluation showed no evidence of disease.
The child has persisted weakness and wrist drop of left hand. Physiotherapy was advised and undergoing on regular basis at NPA Physiotherapy unit.
Present status:
• Weakness of left hand with wrist drop
• Motor power of left wrist is almost zero
• No sweating of left half of the body
• Shortening of left hand when compared to right hand
• Wasting of muscles of left hand.
THE Counsel further stated that nonappearance of Neuro -Surgeon further establishes the negligence on the part of the OPs.
WE find no force in these contentions. The complainants were informed about the inherent risks and the 2nd complainant also signed the Consent Form, dated 14.9.2005, which includes surgical risks of bleeding, tumour spillage, damage to blood vessels and nerves. The brachial plexus injury is nothing but damage to nerves and the patent was completely cured of threatening cancer. The operation report dated 15.9.2005 shows that thereafter, the said tumour did not crop up. The State Commission has noted the literature from American Cancer Society about Neruoblastoma, which was reproduced in the State Commission''s order and is reiterated again. The said literature is: Neuroblastoma is a malignant (cancer) tumour arises from nerve cells and often involves in children. The best treatment for this disease is surgical excision of entire tumour aided by pre or post -operative chemotherapy (anti -cancer drugs) or Radiotherapy (Irradiation) or combined. Incomplete excision of tumour can cause recurrence; thereby leading to poor prognosis (long term outcome). It is very important to remove the entire tumour without any remnants, this will help in good outcome.
Like all forms of treatment, surgery poses some risk of complications. These can include reactions to anaesthesia, excess bleeding and damage to blood vessels, kidneys, others or nerves. Most complications are minor, but serious ones are possible. Complications are more like if the tumour is large and growing into blood vessels or nerves.
The State Commission further held that cancer tumour (Neuroblastoma) arose from nerve routes from the spinal cord extending into the thoracic cavity and closely abutting to the important blood vessels. It was, therefore, very difficult to differentiate or demarcate the tumour from the normal nerves. Despite the fact that the tumour was removed on 15.9.2005 with utmost care and caution, the patient suffered brachial plexus injury.
THERE is no inkling of negligence on the part of OP No. 2. The report by Dr. D. Chandrashekhar was obtained on 18.7.2008. The operation was conducted on 15.9.2005. This report further reveals that the child was admitted at Apollo Hospital on 29.1.2006 for Chemotherapy.
NEGLIGENCE at the time of conducting the operation on 15.9.2005 does not stand proved. The patient admittedly underwent 13 Cycles of Chemotherapy and was cured from cancer and the patient was also on constant follow -up with Dr. Swain and the left upper limb function improved to a functionally useful upper limb. The State Commission rightly placed reliance on the judgments of this Commission in Tarun Thakore v. Dr. Noshir M. Shroff, in O.P. No. 215/2000, dated 24.9.2002; Indian Medical Association v. V.P. Shantha, : I (1996) CLT 81 (SC) : III (1995) CPJ 1 (SC) : (1995) 6 SCC 651; Kusum Sarma v. Batra Hospital, : II (2010) SLT 73 : I (2010) CPJ 29 (SC) : 2010 Mad. LJ -3 -512; Vinita Ashok v. Lakshmi Hospital, : I (2002) CPJ 4 (SC). We find no force in this revision petition. The same is, therefore, dismissed.