Om Parkash Lokre vs Christian Medical College And Hospital And Ors.

ALLEGING negligence and deficiency in service on the part of the opposite parties leading to permanent disability, Om Parkash Lokre, the complainant, has filed this complaint seeking compensation of Rs. 55 lacs (Rupees fifty five lacs) for the permanent damage and impairment caused to his organs, physical and mental harassment and financial loss arising out of the said disability. Opposite Party No. 1 Christian Medical College Hospital, Vellore, is the Premiere Medical Institute of South India where the complainant had taken treatment and opposite party No. 2 is the Department of Surgery Unit -3 though the Director of the said Institute while opposite party Nos. 3 and 4 are the doctors who were responsible for giving treatment/conducting the procedure. Dr. J.P.Anbarasu though served with notice remained unrepresented on record as he was stated to have migrated to Australia during the pendency of the complaint. Opposite party No. 4 -Dr.Bhooshanam Vasanthakumar Moses was the Head of Department/Senior Doctor.

THE undisputable facts discernible from the pleadings of the parties are that the complainant, a middle aged person in his forties employed as an Assistant in the Korba Thermal Plant, Bhillai (M.P.) and a chronic heavy smoker for about two decades was suffering with intractable pain, (a pain state in which cause cannot be removed or otherwise treated and no relief or cure has been found after reasonable efforts) for the last four years, approached the opposite party No. 1 -Hospital on 25.7.1999 for the diagnosis and treatment of the said pain. At that time the complainant had blackish discolouration of his 4th and 5th toes on the right side and following a minor trauma had developed a non -healing ulcer over the 5th toe. He had the history of pain at rest in the foot but had no other similar complaints like TIA, stroke, angina or pulsatile swellings anywhere in the body. He was also not a known hypertensive or diabetic. After clinical and other examinations, complainant was diagnosed a case of "THROMO -ANGIITIS OBLITERANS". He was advised admission in the hospital on 27.7.1999 in order to undergo a surgical procedure called "Chemical Sympathectomy" (a procedure used for destruction of the periareterial sympathetic nerves as in Doppler''s operation by a corrosive such as phenol) (hereafter to be referred as the ''said procedure''). Following the advice, he got admitted to Surgery Unit -Ill in the general ward of the hospital on 28.7.1999 under the supervision of opposite party No. 4 being the Head of the Department of Surgery Unit -Ill for undergoing the said procedure. The said procedure was, however, performed on the complainant by Dr. J.P. Anbarasu (O.P. No. 3) on 1.8.1999, on a Sunday in the ward itself without shifting the complainant to an operation theatre. The said procedure was conducted under the local anesthesia. Soon after the procedure was commenced, the complainant felt numbness in his leg and so the procedure was terminated. The numbness in the limbs felt by the complainant was termed as "POST LUMBAR CHEMICAL SYMPATHECTOMY MONOPLEGIA RIGHT LOWER LIMB" During post sympathectomy period, the complainant developed chemical (phenolinduced) arachnoditis which was confirmed by the MRI scan. Though the complainant was given type IV steroids for the 1st 72 hours of the complication, a complete neurological examination revealed wasting of bilateral extensor digitorum brevis, tibialis anteriror and right gastrocremius. Besides, there was generalized hypotonia of the right lower limb tone on the left side. The power of HIP was reduced to half and that of knee, ankle and toes were assessed at zero while that of the left lower limb was also reduced. Besides other complications were noticed in the tendon reflexes, sensory system. As a consequence there was a neurological impairment of left side lower limb paresis and right side plegia of lower motor neuron type was noticed. Complainant developed urinary retention and constipation and bowel movements could be rehabilitated by daily digital evacuation despite giving active and passive physiotherapy and other treatment and hospitalization of the complainant, till the time of his discharge from the hospital on 30.10.1999, there was no substantial improvement in his condition arising out of the said complication. Owing to the said disability arising out of the said complication, the complainant could only walk with the help of elbow crutches and ankle foot orthoses on the right side. The complainant was required to use catheter and digital evacuation for bowel movement. According to the complainant, he also lost sensation in the genital area. Even after the discharge, complainant though had visited the opposite party No. 1 -hospital on several occasions but there was no improvement and he continued to suffer from the complications arising out of the said surgical procedure.

ACCORDING to the complainant, he was not apprised of the complications or side effects associated with the said procedure before the procedure was conducted. It is alleged that the said procedure was performed in a negligent manner without following the due protocol in that behalf so much so that the procedure was not conducted in an operation theatre but was conducted on a bed in the ward itself; it was conducted without any pre surgical investigation through MRI or CT scan or radiography assistance during the procedure; the standard procedure as advised in the medical texts was not followed; the entire procedure was conducted in a highly unprofessional and negligent manner without observing the necessary guidelines advised and mandated during such therapy; the opposite parties failed to take due care and exercise; the procedure was performed in the absence of a senior doctor Dr.Bhooshanam Vasanthakumar Moses by injecting 6% phenol solution into para vertebral at L2 and L4 vertebral level without following the protocol which requires necessary skill and expertise to locate the exact spot for administering the prescribed injection and instead of using standardized dose of phenol solution with the requisite concentration conforming to prescribed standards manufactured by a reputed company was not used, prior to injecting the therapeutic chemical i.e. phenol a test dose of mild solution should have been used to test the susceptibility and reaction to the complainant which was not done and lastly that no radiographic assistance was taken to trace the route of the chemical. Opposite party No. 1 -hospital has not disputed that the complication of the above nature had occurred during the said procedure but it is denied that there was any negligence in performing the said procedure. It is sought to be explained that said complication is common but rare. It is sought to be explained that complainant did not complain about loss of sensation or paresthesia when the test dose of water was injected and even when the 1st dose of medicine was given but he (complainant) felt numbness in his left leg when the second dose was started and on learning the same, the doctor stopped the procedure and attended to the patient by placing him in supine position and putting him onto I.V. fluids. Thereafter, on the advice of neurologist, he was given 16 milligrams of dexamethasone for curtailing the effect of drug. The complainant was kept under constant observation and was attended on hourly basis under the supervision and care of reputed doctor in the field but unfortunately the complication had occurred as a result of tracking of the medicine to the nerve roots from which no deficiency of service or negligence of the doctor as alleged by the complainant can be inferred. It is pleaded that opposite party No. 1 have done what was called for in such a situation strictly in lines with known medical practices and they have taken reasonable care and skill in rendering their respective services to the complainant. There was no deficiency or negligence in performance of their duties towards the complainant. The complaint is also resisted on the ground of it being barred by time. It is denied that complainant is entitled to any compensation much less a compensation to the tune of Rs. 55 lacs.

PARTIES have led evidence by means of affidavits but largely relied upon the documents viz. the hospital record relating to the treatment of the complainant at the opposite party No. 1 -hospital and medical texts in support of their respective pleas. We have carefully gone through the relevant record and have heard Mrs. Sanjana J. Bali, Advocate representing the complainant and Ms. Rashmi Virmani, Advocate for Opposite Party Nos. 1 and 2 at great length but had not the advantage of hearing the say of opposite party Nos. 3 and 4 as they remained unpresented on record ever since they were impleaded as parties in the complaint.

SINCE an objection has been raised on behalf of the opposite party in regard to the complaint having been filed belatedly i.e. after statutory period of limitation, it would be appropriate to deal with this objection before we proceed to examine the merits of the complaint. Mrs. Virmani, learned Counsel representing the opposite party No. 1 hospital has vehemently argued that as per the complainant''s own showing, the cause of action for filing the complaint arose on 1.8.1999, the date on which the procedure of chemical sympathectomy was conducted leading to permanent damage to various systems of the body and, therefore, the complaint could have been filed within two years from the said date of 1.8.1999 i.e. by 1.8.2001. The present complaint having been filed on 3.10.2001 is, therefore, beyond the period of limitation prescribed under Section 24A of the Consumer Protection Act, 1986 and is liable to be dismissed on this score alone. As against this, learned Counsel for the complainant has submitted that the objection of the opposite party is devoid of any merits because even after the procedure of chemical sympathectomy on 1.8.1999, the complainant remained hospitalized in the hospital for his treatment/management of the disability occurred due to the complication developed in the said procedure on 1.8.1999 and he was discharged only on 30.10.1999 without any improvement. In view of this factual position and that as per the opposite party''s own stand that it continued the treatment of the complainant as indoor patient upto 30.10.1999 and even thereafter as out -door patient, we have no manner of doubt that the cause of action for the present complaint will be deemed to have continued uptil the said treatment or atleast uptil 30.10.1999, the date on which the complainant was discharged from the hospital with the disabilities and deficiencies following the said procedure. The complaint filed on 3.10.2001 is, therefore, well within time. In any case, the hospital ought not to have raised such an objection once notice on the complaint was issued to them which implies that the Commission had entertained the complaint after satisfying itself about the complaint having been filed within the prescribed period of limitation or it has condoned the delay, if any, in filing the complaint at the time of issuing notice to the opposite party. We, therefore, see no merits in this objection of the opposite party.

AS noticed above, there is not much dispute on the material facts in this case. There is no denial of the factual position and even otherwise it is amply borne out from the record that a serious complication leading to the impairment and disability of the left lower limb below abdomen had occurred during the said procedure conducted by opposite party No. 3 on the complainant on 1.8.1999 in the hospital -opposite party No. 1. According to the complainant, this complication was the result of gross negligence on the part of the doctor performing the procedure in not following the recognized protocol while giving such a therapy. The OP has denied the allegations of negligence in performing the said procedure. Therefore, the crucial question which essentially falls for determination in this case is whether the said complication is common but rare complication which is not attributable to any negligence in the performance of the procedure. In this connection we must examine the respective contentions of the parties in some greater details.

IN support of her contention that the doctor who performed the procedure has not followed the recognized mandated protocol, learned Counsel for the complainant has placed heavy reliance on the opinions/texts of certain medical authors on the subject. The standard operating procedure as advised by Ronald D. Miller in his book ''ANESTHESIA'' Volume -II Vth Edition reads as under: "Stellate Ganglion Blocks Because humans do not possess a stellate ganglion per se, the more accurate anatomic term is "cervicothoracic sympathetic block. Up to 15 ml of local anesthetic is injected into the lower cervical sympathetic chain region at the C6 level. The caudad spread in the appropriate prevertebral fascial plane anesthetizes the lower cervical and uptebral fascial plane anesthetizes the lower cervical and upper thoracic sympathetic ganglia and effectively blocks transmission of impulses from the ganglia to the ipsilateral upper extremity. Ready et al and GaLlindo used a sideport needle for cervicothoracic block to ensure the stability of the needle and injection of drug into the proper tissue plan because in so doing one can keep the point of the needle in contact with the Chassaignac turbercle. Satisfactory sympathetic blockade results without the need to withdraw the needle from its bony end point.

Cervicothoracic blocks are usually performed using an anterior paratracheal approach with the patient in the supine position, but other techniques are described in Chapter 43. The regional anatomy predicts the potential side effects and complications from both the needle and the drugs with these techniques. Spread of the solution into the groove between the esophagus and the trachea blocks the ipsilateral recurrent laryngeal nerve, leaving the patient with a hoarse voice for the duration of the local anesthetic effect. If the solution is administered deep to the prevertebral fascia, the local anesthetic will spread posteriorly and laterally and will involve the somatic components of the brachial plexus. Some or all of the roots of the brachial plexus may then be anesthetized. If local anesthetics are used, this is not a serious problem, however, if netrolytic agents are injected, this complication can be catastrophic. A serious complication occurs when the local anesthetic solution is injected unexpectedly into the vertebral artery. The vertebral artery is posterior to the anterior tuberele of C6 and runs in the foramina transversaria in the transverse processes of the upper six cervicalvertebrae. If the exploring needle passes between these processes and rests on the posterior rather than the anterior tuberele, withdrawal of the needle could leave the tip of the needle -in the luman of the vertebral artery. Small volume injections ( 1 mL) of local anesthetic solution into this vessel can produce convulsions. Therefore, careful aspiration is mandatory, and not more than 1 mL. of the local anesthetic solution should be administered as a test dose. Treatment of a convulsion consists of oxygen by mask and/or positive -pressure ventilation plus the intravenous administration of a short -acting sedative -hypnotic, i.e. thiopental (Pentothal), midazolam, or propofol. Spread of 13 the local anesthetic solution to the epidural and/or subaraclmoid spaces producing profound anesthesia for a variable period of time is conceivable, although uncommon, as is motor blockade, of the cervical plexus, leading to phremenerve paralysis.

Lumbar Sympathetic Blocks As the sympathetic chain leaves the thoracic area, it lies alongside the lumber vertebrae anterior to the psoasmajor muscle and its fascia and posterior to the aorta on the left and the inferior vena cava on the right. Because of this positioning, the sympathetic chain can be successfully blocked from a posterior approach (Ch. 43)."

ON the strength of the above medical recitals in regard to the protocol for performing the procedure of chemical sympathectomy and the procedure which the opposite party has followed in the said procedure (as stated by them in para 2 of the written version), learned Counsel for the complainant has listed out the differences in performance of the said procedure which is summarized as under: S. No. Standard Operating Procedure as per Medical Text and para 10 of reply Procedure followed by respondents (Extracted from reply para 2)

Patient lies in lateral position with side for injection uppermost, head being supported on one pillow The said procedure was conducted on the right side of the complainant choosing two levels for the injection of chemical phenol in water. (How the choice of levels is made is not indicated).

Iliac crest, 12 ribs and midline are marked The area of injection was anesthetized by local anesthetic agent and the needle was inserted at the first level.

At the lateral border of erector spinae two points are marked so that the distance between the 12th rib and iliac crest is divided into three equal parts. After ascertaining that this was the exact point, a test of sterile water was injected into the complainant''s body. (How the exact point is ascertained is not indicated) ;

6% phenol solution in water is used for injection. Since on injection of the sterile; water no reaction was observed on the complainant, it was considered safe to go ahead with the said procedure.

The needle position must be confirmed radiographically (through X -rays) prior to injection. The chemical phenol in water was slowly inserted into the complainant''s body over a period of time and the needle was withdrawn.

An aspiration test is made In continuation of the said procedure the needle was then inserted into the second level and when it was ascertained that the point of the needle was in the right spot, the injection of the chemical phenol in water was begun slowly.

A small dose of local anesthetic with radiographic dye should be administered to confirm accurate location of the needle at the marked points. The complainant began to suffer numbness

Then two lumbar puncture needles are used to inject the phenol at L3 and L4 in small quantities -in order to decrease the dose of neurolytic drug at any one site.

MRS .Virmani, learned Counsel appearing for the opposite party -hospital has emphatically argued that that the complainant has failed to establish any negligence on the part of the hospital or the treating doctor because as per the medical protocols Chemical Sympathectomy is a known procedure for treating Thromboangitis Obliterans and a variety of techniques can be used for this procedure which can vary from use of one to four needles with patient postures varying from sitting to prone and imaging techniques varying from CT scanning with contrast, through fluoroscopy with and without contrast, to blind techniques were no imaging of any kind is used. It is pointed out that in a situation where more than one course of treatment is available, choice of a particular course for treatment cannot be termed as negligence as long as the doctor had acted in a manner that is acceptable to the medical profession and has attended the patient with due care. The techniques and the methodology adopted in conducting the said procedure is sought to be defended on the ground that the chemical was injected at the right place and the same infact resulted in improving blood supply to the right foot being the infected part and the complainant was cured of Thromboangitis Obliterans. The complication of Paraplegia/Monoplegia/Paralysis though a rare but a known complication of the said procedure which is caused due to weak tissue/membrane allowing phenol to permeate or travel to other parts and cause damage. It is also submitted that there is no way to ascertain the strength of the tissue/membrane. Learned Counsel for the opposite party -hospital has placed reliance on the decision of this Commission in the case of Smt. Kusum Sharma and Ors. v. Batra Hospital and Medical Research Centre and Ors., III (2000) CPJ 18 (NC) besides the Supreme Court decisions in the cases of Achutrao Haribahu Khodwa and Ors. v. State of Maharashtra, I (1996) CLT 532 (SC)=(1996) 2 SCC 634 and Dr. Laxman Balakrishna Joshi v. Dr. Trimbak Bapu Godbole and Anr., AIR 1969 SC 128. There is no quarrel with the proposition of law laid down in the said cases but the question of medical negligence has to be examined depending upon the facts and circumstances of each case. The submissions made on behalf of the opposite party though appear to be somewhat impressive at first glance but if we go deep in the matter, the hollowness of the submission would become manifest. In the case in hand having regard to the facts and circumstances of the case, onus was heavy upon the hospital and the doctor who conducted the procedure that he possessed the necessary skill to conduct such a procedure and that all precautions and tests which were required to be taken were observed prior to and at the time of conducting the procedure and thereafter, to prove that the procedure was conducted according to well recognized medical protocol and by exercising due care.

MRS . Virmani, learned Counsel for the opposite party No. 1 -hospital has next submitted that the protocol followed by the concerned doctor in the said procedure was in conformity with the established medical protocol. In this connection she has largely relied upon the recitals appearing in Volume 57 of the British Journal of Surgery wherein the subject "PHENOL INJECTION OF THE SYMPATHETIC CHAIN" and "COMPLICATIONS" have been dealt with at great length in the following manner. "INJECTION OF THE LUMBAR SYMPATHETIC CHAIN The patient lies in the lateral position with the side for injection uppermost, the head being supported on one pillow. A 10 -ml syringe is filled with 1 per cent lignocaine and skin weals are made at two sites 10 -12 cm. from the midline opposite the bases of the 3rd and 4th lumbar spinous processes. A few mililitres of solution are infiltrated to a depth of 4 -5 cm and the skin is punctured with a needle of wider bore than that used for phenol injection, so that skin resistance to the latter needle is minimal.

A 13 -cm Howard Jones needle with a short bevel and stylet is entered and directed medially to reach the side of the vertebtral body whose characteristic bone resistance is easily recognized. The needle is then withdrawn several centimetres and directed more laterally to clear the anterolateral aspect of the vertebral body. An elastic resistance at this stage is due to penetration of the anterior longitudinal ligament and indicates that the needle is too close to bone. Approximately 1 cm beyond the crest of the body the slight resistance of psoas fascia is encountered and penetration of this layer brings the needle point into close relation to the sympathetic chain. In heavily built patients a 15 -cm needle may be required.

COMPLICATIONS 1. Death -One death has occurred during the past 10 years due to parvetebral injection of phenol solution. At the conclusion of an apparently successful lumbar injection cardiac arrest occurred and the patient could not be resuscitated. Post -mortem examination showed no cause for death, a coincidental finding being pyonephrosis of one kidney.

Another case of cardiac arrest occurred after an injection of 2 ml. Phenol at the level of D.3 in a patient with angina at rest. This responded to external cardiac massage and the patient survived the incident. It is surprisingly that deaths have not been more frequent as may of these patients are poor surgical risks and some have died from coronary thrombosis or cerebral vascular incidents prior to admission, or, in some cases, after admission but before phenol injection.

Neuritis -In a follow -up of 1028 patients who were given 1666 injections of phenol solution to the lumbar sympathetic chain (some bilateral), the only common complication, occurring in 9 per cent of injections (14.6 per cent of patients) was burning numbness in the groin or the abductor region of the thigh. Occasionally the outer side of the thigh was affected. In the upper dorsal region a similar type of pain affects the chest wall and the inner aspect of the upper arm. The pain is intensified by contact with clothing but is seldom severe and rarely persists for more than 6 -8 weeks although numbness may remain. The pain usually responds to simple analgesics, e.g, aspirin or codeline, and the patient can be reassured that it is neither serious nor permanent and is due to overspill of the solution to sensory pathways.

Pulmonary -Pneumothorax is a frequent complication when injection is performed in the upper dorsal region and is a rare complication of high lumbar injection. It appears to be due to puncture of the lung rather than aspiration of air as it may not become evident until an hour after the injection. Full re -expansion has been obtained in all cases, although 1 patient required insertion of a catheter with a water -seal drain. Haemoptysis has occurred on a few occasions without untoward sequelae.

Renal -Puncture of the kidney sometimes occurs and is recognized by a pendulum swing of the needle or by the escape of urine through the needle. The presence of peri -ureteric fibrosis at subsequent ganglionectomy has occasionally been seen and it is possible that urinary symptoms may occur owing to ureteric damage.

Injury of kidney or ureter may produce haematuria, renal colic, or dysuria, but in most cases the symptoms are transient and full recovery results. 5. Intravascular Injection -Although penetration of the aorta, inferior vena cava, or lumbar veins can occur, intravascular injection is rare. To avoid this complication, it is essential to aspirate gently before the injection of each 0.5 ml. of phenol solution, as the position of the point of the needle can change with respiratory movements and penetration of vein may not be detected unless repeated aspiration is performed.

Intravascular Injection causes severe tinnitus and flushing within a few seconds but recovery is rapid and complete. 6. Hypotensive Collapse -Hypotensive Collapse might be expected when the collateral circulation in the leg of an elderly patient dilates after injection. Fortunately such collapse is uncommon and it responds to elevating the foot of the bed.

Pemedication with pethidine has been a more frequent cause of hypotension than phenol injection. 7. Homer''s Syndrome - Horner''s Syndrome of miosis and enopthalmos follows injection at the level of D. 1 and may occur with injection at D.2 if too much phenol solution is injected. This complication has been rare since the volume of phenol solution injected at D.2 was limited to 2 ml.

Sterility -Bilteral injction in the lumbar region in men causes loss of ejaculation, although impotence does not occur and the patient is not necessarily sterile. This is rarely a cause for concern in older patients, but in young patients the improve -ment like to be obtained by phenol injection must be carefully balanced against the possibility of producing sterility.

Bilateral injection in women does not appear to affect fertility or prevent conception. 9. Paraplegia -Paraplegia has not occurred in this series although cerebrospinal fluid has been trapped on three or four occasions. If the needle has been accurately sited an interval of 20 seconds is allowed before injection of phenol solution, it is unlikely to occur."

HAVING considered the respective submissions put forth on behalf of the parties and the medical protocol for the procedure of chemical sympathectomy we must find out what protocol was followed by the doctor -opposite party No. 3 in performing the said procedure. It is pertinent to note here that although the opposite party -hospital has filed the detailed record of treatment of the complainant at their hospital w.e.f. 25.7.1999 till the end of October i.e. till the period complainant remained hospitalized and even the record of review consultations after his discharge, strangely enough the opposite party -hospital despite our repeatedly asking has not filed the relevant hospital record of the dates of 30th and 31st July, 1999 or the detailed notes recorded by the doctor at the time of conducting the said procedure on 1.8.1999. The record pertaining to 1.8.1999 has only a reference made to Dr. Chandran, Neurologist, which is to the following effect: "Sir Referring to you 45 yr old Mr. Om Prakash Lokhra. A case of TAO who developed weakness of both lower lumbs following chemical sympathectomy. He has shown improvement on the left side but right side still had significant deficit. Please evaluate and advise on further treatment." It appears that the above named Neurologist examined the patient later on the same day and observed as under: "Post Chemical Sympathectomy, Right side -immediate post procedure developed right leg weakens, sensation to all modalities on the right side -inability to control urination. O/E: All modalities sensation. Lost below T12, not able to move right leg. Left side not able to perceive sensation. Completes by 25% when compared to N. Perianal sensation lost. Completes right side. Asynnitric involvemnt of perianal sensation. Plantar: No response. Possibilities: The dye would have entered the thecal space causing paralysis of Lumbo Sacral roots persisting deficit on the right side. As of now in view of his bladder involvement which is a UMN. The possibility of cord involvement also should be considered".

WE are pained to notice that despite our repeatedly asking the Counsel for the opposite party -hospital as to whether any notes were prepared in regard to the preparation for the performance of the said procedure and, or in regard to the conduct of the procedure itself, learned Counsel could not throw much light and informed the Commission that whatever record was available with the hospital has been filed. We are not prepared to believe that the doctor who performed the said procedure had not made any notes of the precautions or the manner in which the procedure was conducted. Had such record been produced, this Commission would have been in a better position to examine the question as to whether the recognized medical protocol was followed or not in performing the said procedure. For not filing the said material record, adverse inference must be drawn against the opposite party. It appears to us that the opposite party -hospital has intentionally withheld the said record from the Commission as the record would have exposed certain act(s) of commission or omission on the part of the doctor which were not in conformity with the established medical protocol.

IN Halsbury''s Laws of England, Volume 26 Third Edition, medical negligence has been dealt with as under: Negligence: Duties owned to patient -A person who holds himself out as ready to give medical (a) advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment (b) a breach of any of these duties will support an action for negligence by the patient (c). Degree of skill and care required -The practitioner must bring to his task 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 (d); a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way (d); nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, although a body of adverse opinion also existed among medical men (e)."

In the case of Dr. Laxman Balkrishna Joshi v. D. Timbak Bapu Godbole and Anr. (supra), the Supreme Court held as under: "The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz. a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task 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 law requires. The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in case of emergency."

In the case of Savita Garg v. National Heart Institute, the Apex Court observed that burden lies on the hospital and concerned doctor who treated the patient that there was no negligence in treatment. The hospital can discharge the burden by producing the treating doctor in defence that all the care and caution was taken. Once the patient was admitted in a particular hospital and evidence is produced that he died because of lack of proper care and negligence onus lies on the hospital to justify that there was no negligence on the part of the treating doctor or hospital. In any case the hospital is in a better position to disclose what care was taken and what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care and diligence.

ON a conspectus of the legal position emerging from a catena of Supreme Court decisions and consistent view taken by this Commission in cases of medical negligence, the inevitable and irresistible conclusion is that there has been negligence on the part of the doctor -opposite party No.3 in performing the said procedure on following scores: (i) The procedure was performed in the general ward instead of operation theatre.

(ii) The senior doctor/Head of the Department was not present at the time of performing the operation.

(iii) Prior to injecting the therapeutic chemical i.e. phenol a test dose of mild solution of ethanol was not used to test its susceptibility and reaction of the chemical to the complainant.

(iv) It has not been established that standard solution of phenol with requisite concentration conforming to prescribed standard was used.

(v) As per the opposite party''s own showing i.e. opinion of Neurologist (page 53) of the hospital record possibility for resultant disability of the complainant was "Dye would have entered the cal space causing paralysis of Lumbo Sacral roots persisting deficit on the right side". This by itself would show that the procedure was conducted in a negligent/careless manner.

(vi) Procedure was conducted without pre -surgical investigation through MRI or CT scan or radiographic assistance during the procedure as mandated by the protocol.

LEARNED Counsel for the complainant has also brought it to the notice of the Commission that after complication/episode of the complainant, the opposite party -hospital became wiser in conducting such type of procedure and procedure was performed on a certain Keshoblal Saha of West Bengal on 1.10.1999 and on Shri Ananda Panda at Sambalpur, Orissa on 8.10.99 with the aid of CT scan and without any complications.

FROM what has been stated above, the irresistible conclusion is that as a result of the complication arising from the negligent performance of the procedure, the complainant has suffered permanent disability in the lower part of his body. Due to the said disability, the complainant could only walk with the help of elbow crutches and ankle foot orthoses on the right side. The complainant is required to use catheter and digital evacuation for bowel movement. At the time of his discharge from the hospital he was advised several tests and several drugs and physiotherapy, etc. as under: (1) Normal diet with fluid restriction to 1.5 litres/day.

(2) Tab. Revital one tab one daily.

(3) Tab. Trental 400 mg. Thrice daily, T Persant in 25 mg TDS (Thrice daily)

(4) Naturolax 2 teaspoons at bed time.

(5) Physiotherapy for muscle power strengthening and crutch walking.

(6) Intermittent clean catheteri -zation and digital evaluation for bladder and bowel dysfunctions respectively.

(7) To repeat NCV and EMG during next visit.

(8) SSEP ( somatosensory evoked potential) tibial nerve.

(9) Tab. Carbamzepine 50 mg thrice daily if paresthesias are disturbing to the patient and subsequently the dosage of the same can be increased based on the patient response and symptom control.

(10) To add. Tab. Baclofen 2.5 mg twice daily if flexor spasms worsens and dosage can be increased based on patient response.

(11) Cystoscopy to be repeated atleast once a month.

(12) Avoid undue pressure during voiding of urine. In case of recurrent urinay tract infection, to consider long term antibiotic prophylaxis.

(13) Anticholinergics like Tab. Probanthine 15 mg. Thrice daily can be considered if leakage of urine becomes a problem.

(14) To review in surgery -Ill OPD after 6 months/IInd week of January 2000.

HAVING held that there was negligence on the part of the opposite parties in conducting the procedure leading to the complications and permanent disability, the ultimate question is as to what should be the adequate compensation in the present case. The question has been considered by the Supreme Court in the following manner: "A patient who has been injured by an act of medical negligence has suffered in a way which is recognized by the law -and by the public at large -as deserving compensation. This loss may be continuing and what may seem like an unduly large award may be little more than that sum which is required to compensate him for such matters as loss of future earnings and future cost of medical or nursing care. To deny a legitimate claim or to restrict arbitrarily the size of an award would amount to substantial injustice. After all, there is no difference in legal theory between the plaintiff injured through medical negligence and the plaintiff injured in an industrial or motor accident. Under civil and consumer law compensation paid for medical negligence is neither punishment nor reward. The principle on which damages for medical negligence are assessed is that they are to be regarded as compensation for the injury sustained or death and not as punishment for the wrong inflicted. There is no difference in the principles applied to the assessment of damages in a medical negligence case and other actions for personal injuries, e.g., in motor accidents claims."

IN the present case complainant has claimed compensation of Rs. 55 lakh under following heads: 1. Expenditure on medical including medicine Alopathy : Rs. 12,000.00 Ayurvedic : Rs. 50,000.00 Rs. 25,000.00 2. Expenditure towards journey from Korba to Raipur and Vellure x 6 @ 6000 Rs. 36,000.00 3. Lodging and Boarding at Vellore and 6 @ 5000 Rs. 30,000.00 4. Loss of leave of 1 years (15 months) @ Rs. 11,000 p.m. Rs. 1,56,000.00 5. Loss of salary for 24 months (8/99 to 7/2001) @ 11,000 p.m. Rs. 2,64,000.00 6. Appoint of an attendant for nursing and medical look -after @ Rs. 4,000 p.m. for 10 months (i.e. 10/2000 to 7/2001) Rs. 40,000.00 7. -do - onward(4000 x 12 X 5) Rs. 2,40,000.00 8. Loss of service condition (153 months) 8/2001 @ 12,000 p.m. Rs. 18,48,000.00 9. Loss of body Rs. 5,00,000.00 10. Mental agony Rs. 4,00,000.00 11. Family life disturbance (a) Mother, father and children Rs. 5,00,000.00 (b) Life of wife Rs. 8,00,000.00 Rs. 55,00,000 00

FOR the purpose of assessing the extent of permanent disability the complainant was examined by the Medical Board of District Hospital, Korba on 6.4.2003 and on examination of the complainant, the said Board issued a certificate No. 156 dated 6.4.2003 certifying the physical disability of the complainant to 75% permanent disability/impairment which was not likely to improve. We have no reason to discard the said certificate and, therefore, we are inclined to hold the permanent disability to the said extent. Out of the amount of Rs. 55 lakh under various heads, complainant has claimed a sum of Rs. 5 lakh as loss of body which probably is relatable to permanent disability suffered by the complainant. Looking to the nature and extent of the permanent disability, claim of this amount cannot be said to be excessive or exaggerated. We are, therefore, inclined to award a sum of Rs. 5 lakh (Rupees five lakh) for the permanent disability suffered by the complainant due to medical negligence on the part of doctor. We are also inclined to grant a consolidated compensation of Rs. 2 lakh (Rupees two lakh) to the complainant towards the past and future recurring medical expenditure including expenditure in travelling from Korba to Vellore and back, to the complainant and the attendant. Complainant has further claimed a sum of Rs. 18,48,000 towards the loss of service condition for a period of 153 months @ 12,000 per month besides a further sum of Rs. 2,64,000 as loss of salary for 24 months from August 1999 to July 2001 @ 11,000 per month. In this connection we may simply observe that complaint has not filed any proof to show that there has been any loss of salary to him or there is any loss of service condition because admittedly he continues to serve in the same department and on the same post. We, therefore, do not think that any claim under this head is tenable. Similarly the claim of Rs. 8,00,000 for the wife and Rs. 5,00,000 for the disturbance of mother, father and children cannot be entertained as in our view it would be too remote to grant compensation on that score. The complainant has claimed a sum of Rs. 4,00,000 towards mental agony and going by the mental and physical trauma and the life -long sufferings which the complainant is forced to undergo for the rest of his life on account of the complications leading to the permanent disability. We consider it appropriate to award a sum of Rs. 3 lakh (Rupees three lakh) on this score. This will bring the total compensation to Rs. 10 lakh (Rupees ten lakh). In our opinion this compensation should adequately meet the ends of justice in the present case.

IN the result, we allow the complaint though partly and direct the Christian Medical College and Hospital, Vellore (Opposite Party No. 1) and Dr. J.P. Anbarasu (Opposite Party No. 3) to be jointly and severally liable to pay a total compensation of Rs. 10 lakh (Rupees ten lakh) to the complainant. We direct them to pay the said amount within six weeks failing which it shall carry interest @ 9% p.a. We also direct the opposite party -hospital to pay a further sum of Rs. 25,000 (Rupees twenty five thousand only) to the complainant as cost of these proceedings. Complaint partly allowed.