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Judgment
Dr. S.M. Kantikar, J
Complaint:
The complainant Mr. Raghavendra Raja Rao (for short 'the patient') filed the instant complaint against the opposite parties - Dr.Supriya Gajendragadkar the anesthetist (OP-1), Dr. Santosh Karmakar a surgeon (OP-2) and the Bai Jerbai Wadia Hospital (OP-3). The complainant isaged about 41 years was operated by OP-2 for urinary Bladder Augmentation in the year 2002. Thereafter, in May 2016 patient underwent operation for removal of bladder stone in May 2016. He filed the instant complaint in year 2016 based on new / fresh and continuous cause of action related to medical negligence occurred in year 2002 during the initial operation.
The relevant facts are that, the complainant born with the congenital malformation viz Spina Bifida and Meningo-myelocele (MMC). Since birth he was suffering from physical disability with stool and / urinary incontinence. Due to disability, he had problem in walking and he was using crutches. During year 1983 to 1988, he took treatment from various hospitals in Mumbai. At the age of about 25 years, for getting treatment to reduce his disability, in the month of September 2002, he along with his mother approached Dr. Santosh J Karmakar (OP-2) working at Bai Jerbai Wadia Hospital, the OP-3 (for short 'hospital'). It was alleged that the OP-2, though he was a pediatric surgeon, and knowingly he advised the patient to get admitted in the pediatric hospital (OP-3) which was not for adult patients. On 23.09.2002 the patient was admitted in the hospital and after medical check-up and certain clinical tests he was discharged on 25.09.2002.At the time of discharge patient was informed by OP-2 that Bladder Augmentation with appendicovesicostomy operation would be beneficial to get relief from urinary incontinence problem. It was alleged that OP-2 conducted MCU test, but did not do ultrasonography because the sonography probe for adults was not available in the children hospital. Even, OP-2 did not advise to get sonography done from outside. The patient and his parents showed un- willingness and requested to get it operated in other hospital having better facilities for adult patients, but the OP-2 insisted and assured the complainant for complete treatment and took special permission from the Superintendent of the said hospital (OP-3). Accordingly, patient got admitted in OP-3 hospital and the operation was conducted on 7.11.2002 under local epidural anaesthesia as well as under general anaesthesia. It was alleged that, OP-2 performed only the bladder augmentation operation but the appendicovesicostomy was not done. According to the Complainant he had sensation up to ankle in both the legs before surgery and same was recorded in pre-anesthetic record. It was alleged that following the surgery, patient felt numbness in his both the legs and thereafter developed loss of sensation below the knee in his both the legs. He was unable to move legs at all. After repeated inquiry with the OPs, the patient came to know that he was examined by the child neurologist, orthopedician and anesthetist. They advised to consult adult neurologist immediately and also advised for M.R.I. and EMG/NCV tests. The patient remained in hospital for 25 days but the treating doctors failed to call the adult neurologist, orthopedic and anesthesia specialists. No MRI or EMG/MCV was performed. At the time of discharge the patient came to know that the OP-2 had performed only Bladder Augmentation operation and the remaining part of the surgery i.e. appendicovesicostomy was not done at all. On inquiry with OP-2 it was told that the bladder was deep seated, therefore he could not complete the said operation and left the operation midway. According to complainant if the required pre-operative sonography and uro-dynamic studies would have conducted by OP-2, then he could have ascertained the position of the bladder and such mistake could have been avoided or the patient would have avoided surgery. It led to lifelong use/insertion of the suprapubic catheter to drain the urine in the bag. He has to change the urine bag for every three months, and incurring regular cost of Rs.600/- every time. The patient was discharged from the hospital on 30.11.2002.
Complainant further alleged that, OP-1 and 2 failed to treat him for loss of sensation in both the legs. At the time of discharge the doctors did not inform about the chances of formation of bladder stone and development of bladder cancer. After the discharge patient approached his family doctor and on her advice MRI and EMG were performed which revealed that the nerves got damaged because of lumbar puncture, thus it was incurable loss of sensation in his both legs.
The complainant further submitted that due to negligence, post-operatively patient developed loss of sensation upto knees and non-healing infected wound in his both legs. Thus, as a result his right leg got amputated in May 2013. His left leg also affected by lymphatic edema and now it is also on the verge of amputation. Complainant further alleged that in the year 2015 - 2016(after 13 years) patient was detected having huge urinary bladder stones ( 5.5 and 3.3 cm diameter), and require life threatening surgery. He approached several doctors, but they denied to do the risky operation. On 12.05.2016 the bladder stones were removed by open surgery in Kohinoor Hospital . It was performed by Dr. Aftab Ansari. According to the opinion of Dr. Aftab the stones were formed because continuous use of the supra pubic catheter and the incomplete surgery performed by OP-2 in year 2002.
As of now, the complainant being a computer professional, he is unable to earn his livelihood and he has to depend solely upon his mother - a retired school teacher (pensioner). He has suffered from financial constraints and unable to bear the expenses on his health problems. Being aggrieved the complainant filed a complaint on 17th August, 2016 before this commission for the alleged negligent acts and omissions on the part of the doctors OP - 1 and 2, and the hospital (OP-3).
In nutshell, the complainant filed this complaint with following allegations:
The MRI of spine prior to surgery was must to avoid damage while giving epidural analgesia/anesthesia in spina bifida cases as per the literature.
Negligence in administering epidural anesthesia in a diagnoses case of spina bifida leading to the loss of sensation below knee in both legs.
OP No. 1 and OP No. 2 did not screen the spine to assess the condition of the spine.
OP No. 2 did not perform the pre-operative sonography.
He did not perform the promised surgery.
He did not inform him of the limited surgery carried out by him.
OP No. 1 and OP No. 2 did not inform the type of anesthesia and the limited operation that he would perform before obtaining the consent.
OP No. 3 is at fault in providing permission for this surgery, when investigating facilities for adults was not available.
Thus OP No. 3 is having vicarious liability.
Due to the above illegalities committed by all opponents complainant is suffering from a miserable life with no option but to commit euthanasia.
According to the complainant the instant complaint was filed within period of limitation. Dr. Santosh Karmakar (OP-2) had performed initial operation in year 2002 . It was incomplete procedure and the patient also suffered loss of sensation in both legs thereafter. After about 14 years,in the month of July, 2016 i.e. based on the opinion of Dr. Aftab Ansari, Dr. Ajay V. Patil and Dr. M.R. Mirajkar, he came to know about the negligence caused to him by the OPs in year 2002.Thus,the present complaint is totally fresh and separate one and the cause of action in the present complaint is a recurring and continuous.
Defense:
The opposite parties 1, 2 and 3 denied all the allegations by filing their respective written versions and affidavits of evidence. According to the OPs the present complaint was filed on the same cause of action, thus it's a res judicata . The present complaint was filed after 14 years of the cause of action, thus it is barred by limitation. According to the OPs the complainant was suffering from congenital defects like spina bifida and meningomyelocele. He took treatment from various doctors. The present suffering of patient was neither due to the initial operation performed in year 2002 by OP-2 nor due to any negligence of anesthetist. The OPs relied upon doctrine of waiver, doctrine of estoppels. OPs submitted that the discovery rule is not applicable in the instant case.
Arguments:
Heard the arguments from both the sides. The complainant present in person with his mother, Dr. M. R. Mirajkar and his counsel. The learned counsel for the opposite parties were present along with the doctors- OP-1 and OP-2. Both sides have filed their short briefs of written arguments along with medical literature and the case laws. They have made their oral submissions as stated in their evidence by way of affidavits.
Findings and Reasons:
We have perused the voluminous material on record filed by both the sides and given our thoughtful consideration to the arguments. Complainant has filed voluminous record ( 10 volumes) consisting of his treatment record ( from 2002 to 2016) and entire pleadings which took place before the State Commission, National Commission, Hon'ble Supreme Court, the Maharashtra Medical Council, Medical Council of India and Maharashtra State Human Right Commission (SHRC) etc. Complainant has filed three expert opinions filed. Admittedly for redressal of his grievance from year 2005, the complainant had approached various fora (supra), but nowhere medical negligence has been held against the opposite parties. The complainant filed 1st complaint CC No. 22 of 2005 before the State Commission and the said Consumer Complaint was dismissed. This matter travelled up to the National Commission and the Hon'ble Supreme Court. It has attained finality when the Hon'ble Supreme Court dismissed SLP and its review petition on 15.12.2015.
It is relevant to go through the chronology and chequered history of the instant case as below:
The Complainant filed a complaint No. 22 of 2005againstDr.Karmakarand the hospitalwho are OP-2 and OP-3 respectively in the instant complaint and Respondent in the Maharashtra State Consumer Disputes Redressal Commission.The complaintwas dismissed by the State Commission vide Order dt. 20.05.2006.
The Complainant filed the First Appeal 336 of 2006before the National Consumer Disputes Redressal Commission (NCDRC).It was remanded back to the State Commission for re-hearing.
The matter was re-heard by the State Commission and dismissed the complaint vide Order dt. 25.03.2009.
Against the impugned order , Complainant filed First Appeal No. 181 of 2009 before theNCDRC; same was dismissed by the NCDRC vide Order dt. 14.10.2014.
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The Complainant filed SLP No. 21533 before Hon'ble Supreme Court against the Order of NCDRC dtd 14.10.2014 , samewas dismissed videOrder dt.01.07.2015.
The Complainant then filed a Review Petition No. 3684-3685 of 2015 before the Supreme Court on the Order/judgment mentioned immediately hereinabove.This review was dismissed by the Supreme Court by its Order dt. 15.12.2015.
Simultaneously, in parallel, Complainant had filed a complaint (DC/30/2009) against the OPs before the Maharashtra Medical Council for allegedMedical Malpractice. The said complaint was dismissed videOrder dt. 16.4.2011.
The Complainant challenged the MMC Order of dismissal before Medical Council of India (MCI)/ Same was dismissed vide Order dt. 19.06.2012.
Complainant alleging wrong treatment by the OPs also filed a Complaint before the Maharashtra State Human Rights Commission (SHRC).The complaint was dismissed by the SHRC videOrder dt. 10.06.2004.
Thus, on bare perusal of above stated history, it is clear that complainant approached various fora but failed to establish medical negligence either against the doctor or the hospital.
We note that in the present complaint, the complainant again filed against the same surgeon Dr. Santosh Karmakar and the Wadia hospital, but arrayed the Anesthetist Dr. Supriya Gajedragadkar as the opposite party no.1 ( for short 'OP-1'). The main grouse of complainant that during his first surgery (2002), he was not aware of anesthetist negligence, therefore he has not made the anesthetist as an opposite party in the CC/22/2005 filed before the State Commission in year 2005. The discovery of the latent facts came to light in May 2016 when he got operated for removal of large bladder stones at Kohinoor Hospital, Kurla- Mumbai. It was performed by the surgeon Dr. Aftab Ansari. The complainant came to know the medical negligence of OP-1 and 2 only after getting opinion from Dr. Aftab Ansari, Dr. Ajay Patil and Dr. M.R. Mirajkar. The huge bladder stone was formed because of incomplete bladder augmentation surgery performed by OP-2 in year 2002 and he was put on for lifelong supra public catheter to drain urine. In the earlier proceeding, it was not the subject matter of litigation. Therefore, complainant has filed the present complaint on a fresh and continuous/recurring cause of action after the discovery of the above facts in year 2016, and it was filed within the period of limitation.
We also note that all issues regarding surgery performed in pediatric hospital, the consent, and post-operative loss of sensation in both the legs and physical disability of the patient were dealt in detail by State Commission ( in CC 22 of 2005 ) and by this commission (in FA 181/2009). The SLP was also dismissed by the Hon'ble Supreme Court. Therefore, at this stage we need to decide whether as per law the present complaint filed after 14 years is maintainable ( barred by limitation) and filed with similar cause of action (res judicata).
Whether Dr. Suresh Karmakar (OP-2) negligent:
On perusal of the affidavit of OP-2 and medical record available on file, we note that initially (2002) it was decided to carry out the bladder augmentation as well as appendicovesicostomy; however, it was explained to the patient that it depends upon anatomical and physiological feasibility. During the operation OP-2 noted that carrying out of appendicovesicostomy was not feasible for technical reasons. We do not see any fault with the operating surgeon's decision. It was taken after looking at the anatomical and physiological condition of the patient. In our view, it was a proper decision of OP-2 not to perform the second part of the surgery (appendicovesicostomy), it does not amount medical negligence of OP-2. Thus, it is more relevant to look into (a) the informed consent and (b) the operative notes in the medical record.
The informed consent is reproduced as below:
Dated :06/11/02
Informed consent
I, the undersigned, hereby give my consent for Exp Laparotomy with augmentation Sigmoid colocystoplasty for urinary incontinence with appendico-vesicostomy under the required anaesthesia, the risk and consequence of which have been explained to me in the language understand.
The need for postoperative CIC, probably life long, and its consequence and complications have been explained to me.
The need for daily bladder washouts for mucus evacuation and serious complications if not complaint has also been explained to me.
(extracted from typed page no 51 of part I)
b) The operative notes are as below:
Operation Records
Date: 7/11/2002 Anaesthesia: GA Anaesthetist: Dr. Supriya
etal
Operation: Augumetation (Sigmoid Colon) Colocystoplasty
Surgeon: Dr. S.J. Karmarkar. Assistants: Dr. V.G. Bhosale
Intra operative X-ray: - - - Photograph: - - - Dr. P.K. Adivrekar
Dr. Ravikiran
Supine Position.
Findings: Small Capacity bladder, lying deep in the pelvic cavity.
Procedure: Bladder longitudinally opened up two halves, Part of sigmoid colon mobilized on a pedicle after having confirmed that the pedicle can take over the blood supply of the mobilized sigmoid adequately.
Mobilized sigmoid then washed with Betadine and opened across the entire lengths at the ant mesenteric border along the taen - - -
Opened up bowel lumen then tabularized to form a cup suturing done with 3.0 vicryl continues layer with interrupted stitches of 2.0 Vicryl.
Both ureteric or fixes catheterized with number 7 IFT.
Bladder then anastomosed with augment with the help of 2.0 Vicryl continues inter locking sutures. Both ureteric catheter brought out from bladder and fixed to skin. SPC No. 22, - - - - brought out from the augment and fixed to skin. Intraperitorial draping and retro public done.
(typed extracted from page no 54 to 55 of part I)
Thus, considering (a) and (b)
Whether the Anaesthetist OP-1 Dr. Supriya Gajendragadkar negligent:
The operation was conducted on 7.11.2002. Post operatively patient was under observation of OP-1 and OP-2. On the next day 8.11.2002 at 11.30 am patient was examined by one anaesthetist Dr.Sunita Goel and she made following observations.
Dated 08/11/2002, 11.30 am S/B Sunita Goel (Anaesthetist)
Call sent for assessment of Pt. Raghavendra an Op/c/o. Augmentation of bladder GA with epidural catheter in situ. Complaining of the loss of sensation of both lower limbs.
Pt operated for augmentation of bladder with cystoplasty under GA on 07/11.Epidural catheter 18 G Placed at T12-L1 level of 14 cm mark on skin, depth to space 6.5 cm, in situ catheter 7.5 cm prior to op.
Last epidural top up given at 5.30 pm with 100 mg of Tramadol with 7cc NS.
Surgery last till 7 pm.
Pt complaining of numbness since night.No epidural top ups have being given since 5.30 pm.
We find the effect of epidural analgesia lasted for 10-12 hours and the patient was complaining of numbness in the legs. It is pertinent to note that, before the State Commission in the complaint and before National Commission in the appeal the issue of anaesthesia was argued extensively. The respective observations on the issue of anaesthesia are as below:
The State Commission held as under:-
'ISSUE NO.2: The type of anaesthesia chosen was in proportion to the patient's needs and requirements, which was 'General Anaesthesia'. However, what the complainant referred to as 'Spinal Anaesthesia' was in fact introduction of fine catheter into the spinal passage for reduction of the dose of general anaesthetics and the effective control of the pain in the postoperative period. The process in known as 'Epidural Analgesia'. It is to be noted that epidural analgesia is a safe and internationally accepted procedure all over the world and is commonly used to assist women in labour pains. Therefore, O.P. No. 1 was not negligent in giving anaesthesia.'
The complainant appealed the Order of the State Commission before NCDRC (Appeal no. 181 of 2009). The appeal was dismissed on 14/10/2014 with following observation on the point of anaesthesia:
'21. In so far as anaesthesia given in the spinal card is concerned, it has been explained by the OPs that a fine catheter was introduced into the spinal cared for reduction of the dose of general anaesthetics and the effective control of pain in the post-operative period. The process is known as Epidural analgesia and it is a safe and internationally accepted procedure all over the World. The basic issue, however, is that at the time of surgery, a team of qualified Doctors was present and anaesthesia was given under the direct supervision of a qualified Doctor, Supriya Gajendragodkar, having specialisation in anaesthesia. The charge of medical negligence on this score is also not proved.'
Thus, it clear that complainant was well aware of the presence of OP-1 anaesthetist and how anaesthesia was administered. Therefore, complainant's allegation that he was kept in the dark about the role of anaesthetist is not sustainable.
Discussion:
Upon perusal of entire medical record, the orders passed by various fora and the medical literature on the subject our discussion is as below:
Cause for leg amputation/bladder stone/ filariasis.
Complainant has raised 4 main issues.
Issue 1: Loss of sensation below knee.
Issue 2: Right leg amputation on 14/05/2013
Issue 3: Filariasis of the left leg below knee treated on 22/04/2014
Issue 4: A huge urinary bladder stone of the size 5.5. cm and 3.5 cm was operated on 12/05/2016
As per the medical record, the clinical history revealed that the patient prior to the surgery had loss of sensation in both legs (upto ankle). Moreover, the effects of Epidural analgesia are transient and do not last for more than 24-48 hours, thus it cannot last for 14 years after the procedure. The patient had developed trophic ulcers and got infected which necessitated for amputation of right leg. Therefore, we do not find any relation to the anaesthesia given 14 years ago and the present amputation of patient's right leg . Similarly, urinary bladder stones are in no way related to anaesthesia given 14 years ago.
Complaint barred by limitation:
The instant complaint is barred as under Section 24A of the Act , because it was filed after 14 years from the date of cause of action (7.11.2002). Moreover, the complainant has not filed any application for seeking the condonation of delay.
Res Judicata:
Admittedly, the complainant approached various fora / authorities viz
The Maharashtra Medical Council.
The Medical Council of India.
State Commission at Mumbai, Maharasthra.
The National Commission
The Supreme Court.
The Delhi High Court.
The National Human Rights Commission.
All the above authorities dismissed the complaint. None held the OPs liable for negligence or deficiency in their services. Complainant once again now wants to agitate the matter before this commission on same cause of action. Based on the principles laid down by the doctrine of 'Res Judicata' this complaint deserves to be dismissed as it already attained the finality. Thus as per law the relevant provisions of Order 2 Rule 2, CPC are squarely applicable in the instant case. The relevant provisions are as under:
"2. Suit to include the whole claim. - (1) Every suit shall include the whole of the claim which the plaintiff be entitled to make in respect of the cause of action, but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court.
(2) Relinquishment of part of claim. - Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs. - A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the court, to sue for all such reliefs, he shall not afterwards sue for any reliefs so omitted."
Doctrine of Waiver:
OP-1 in her affidavit submitted that since 2002, the complainant was fully aware that the general anaesthesia was given by OP-1 and the epidural anaesthesia was given by Dr Lohit Mahadevappa (MD Anaesthesiology). The complainant who filed Complaints before various fora (supra) has not arrayed the OP-1 anaesthetist as one of opposite party , thus complainant has waived of his right. Before State Commission he has chosen not to impaled OP NO 1 and Dr.Lohit in-spite of the fact that he was fully aware that anaesthesia was given by them.
No relevance to the expert opinion on behalf of the complainant-
In May 2016 patient underwent a huge bladder stone operation at Kohinoor Hospital, Kurla Mumbai. The complainant sought opinion on the entire happenings from (i) Dr.Aftab Ansari (ii) Dr. Ajay Patil and (iii) Dr. M.R. Mirajkar. Thereafter he filed the instant second complaint of alleged medical negligence on fresh cause of action.
We have perused all three opinions. The relevant part of each opinion is reproduced as below:
Opinion of Dr.Aftab Ansari - the surgeonwho removed bladder stone :
Kohinoor Hospital
Date : 18/01/2016
This is to certify that Mr. Raghavendra Rao has been examined and investigated by me.
He is found to have urinary bladder calculus and a calculus surrounding the Supra Pubic Foley's which is passed through the Augmented bladder.
In my opinion it is not possible to manage this Cystoscopically, hence an open Supra Pubic Cystolithotomy is planned.
The Surgery carries risks as the urine bladder is small and it may need opening of the augmented part.
There may be prolonged healing, urinary tract infection and urinary leakage. There may be associated risk of Anaesthesia and position during surgery as he cannot be given proper position due to his lower extremity problem.
Signed by Dr.Aftab Ansari
(typed extracted from page no 96 of part I)
On bare reading, we find nothing about the fact that formation of stone was due to previous surgery done by OP-2.
Opinion of Dr. Ajay V. Patil- Forensic Medicne expert
The relevant Paragraphs (F) and (G) are reproduced as below:
F. What was the nature of physical impairment?
There is direct co-relation between his present health condition i.e. his Right leg amputation (2013) Left leg Filariasis (2014) and Bladder stone (2015-2016) & past medical intervention, negligence approach in dealing the clinical situations.
Physical impairment related to surgery and its causes
Incontinence/dribbling of urine continue.Because the OP did not perform the neck repair surgery.
The patient requires a permanent Supra Pubic (SP) catheter inserted in the bladder which would drain the urine from time to time through a created outlet in the body.Because the OP failed to create an effective outlet for the urine stored in the bladder, whose capacity increased after the augmentation surgery.
Physical impairment related to anaesthesia and its causes
Loss of sensation extended from below ankle to below knee. Before surgery _ complete sensory loss in both feet and ankle regions. After surgery sensory loss in both lower limbs from below knee to ankle. Cause: "post epidural anaesthesia neurodeficit in lower limbs". Mentioned on Page 34 of the clinical record.
"Clinical Neurology" by Graeme J. Hankety& Joanna M. Wardla : "Beware of the dangers of lumbar puncture; iatrogenic damage to the spinal cord by a needle inserted into a spinal cord that is tethered to the margin of one of the low lumbar or sacral vertebral bodies."The surgical team did not heed the warning and operated by lumbar puncture after which the patient got paralyzed below the knee as recorded on case paper pages 32, 34 & 35 of the complaint.
Dr.Karmarkar as well as the anaesthetist did not screen his spine by MRI to assess the condition of the spinal cord.Upon 50% of the cases of MMC repair have tethered cord means the cord is adherent to the spine and stretched.
Neurological assessment prior to surgery should have been done to choose the line of treatment whether conservative or surgical.The MRI of spine prior to surgery was must to avoid damage while giving the epidural anaesthesia/analgesia.
Epidural anaesthesia/analgesia was the cause for the increased neurological deficit in the patient's legs immediately after the operation.
Records reveal that initially the patient was given epidural anaesthesia/ analgesia and later switched to general anaesthesia but in the best of the choice it should have been only the general anaesthesia.
G. CONCLUSION
The negligent acts and omissions on the part of OP No. 1 and the hospital
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Not performing the pre-operative sonography
Not performing the promised surgery.
Not informing the patient of the limited surgery carried out.
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Negligence in administrating epidural anesthesia in a diagnosed case of spina bifida leading to loss of sensation below knee in both legs.
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In providing permission for the surgery , when investigating facilities for adults was not available.
Vicarious liability.
(extracted from page no 140 to 142 of part I)
We do not agree with this opinion because present health condition is the sequel of spina bifida and meninogomylocele and not by any stretch of imagination related to surgery which patient underwent in 2002.
The amputation of patient's right leg in 2003 legdue to long standing non healing infectedtropic ulcersRight leg amputation (2013),
Left leg Filariasis developed in 2014, is nothing but parasitic lymphedema. And,
Similarly, formation of bladder stone after 14 years of bladder augmentation has no relevance.
Opinion of Dr.Mirajkar
Dr. Mirajkar is a consulting surgeon in Mumbai. He evaluated patient's health reports and opined on the health condition of the patient was a direct result of medical negligence caused by Dr. Santosh J. Karmarkar. According him Dr. Karmarkar was not helping the patient, but simply trying to improve his statistics. He could have simply handed over the case to an adult Urologist. He further stated that Dr. Karmarkar did not investigate the patient before the surgery. MRI Scan was necessary to assess the condition of spinal cord. The detailed neurological assessment of the patient was not done before the surgery, but the neurosurgeon was called after surgery when patient suffered further loss of sensation. According to Dr. Mirajkar, the operation should have been performed only under general anaesthesia because the patient was earlier operated for maningomylocele on day 6 of life (24.6.1976). Dr.Karmarkar would have opted for surgical options available for adults like injectable slings, urinary sphincter.
Dr. Mirajkar summarised his observations as below:
"1. Dr. Karmarkar by his qualification and training and experience was not the right surgeon to do the surgery in adult. It is doctor's moral duty to avoid such heroism in the interest of the patient's life and cure. He could have referred the patient to any other uro-surgeon having special interest in such field.
Patient and relatives are blinded by the situation, quest for cure, reputation of doctor and financial constraints cannot be blamed for the choice of the surgeon. Consent given by the patient should not be a blank cheque for surgeon. One must strike a balance between the uncommon complications and patients cry for safe and successful surgery. In case of complications I think that the expertise is inversely proportional to the uncommon complications.
Proper investigations were not done and patient was rushed into the procedure. No detailed neurological assessment was done prior to surgery UDS should have been relied upon to safe medication.
Neurological damage after the anaesthesia could be mostly due to the damage to the tethered cord. MRI prior to surgery was necessary. Only General anaesthesia should have been thought of sparing damage to spinal cord. This has crippled the patient further lifelong.
Dr. Karmarkar should have gracefully called urologist for the health of the patient. The patient could have got benefit of right choice of operation in one sitting which is essential because second time opening up the same area is difficult and even dangerous.
Considering the UDS and age of the patient anyone of artificial urinary sphincter or bladder neck closure with tissue interposition could have been sufficient to give relief to the patient.
Acts of omissions and commission on the part of doctors and the hospital
1) Surgeon:
a) Not performing the pre-operative complete assessment.
b) Not selecting proper choice of treatment for the patient.
c) Total communication failure.
2) Anesthesia:
a) Negligence in administering epidural anesthesia in a diagnosed case of operated meningomyelocele leading to additional loss of sensation below knee in both legs.
3) Hospital:
a) In providing permission for the surgery, when proper facility for adults was not available for specialised surgery.
(extracted from page no 140 and 141 of part I)
We are not so convinced with the opinion of Dr.Mirajkar.
No negligence of anaesthetist (OP-1)
The complainant alleged that there was negligence in inserting the needle for epidural catheterization which has led to the loss of sensation and loss of power in muscles below knees. This has led to paralysis below both the knees, rendering the complainant completely immobile, permanently handicapped and in a helpless state due to irreversible damage caused. This was proved by the EMG/NCV test.
The OP-1 Dr.Supreya Gajendragadkar in her written version and affidavit of evidence clarified the role of general anaesthesia with epidural analgesia. Accordingly, general anaesthesia (GA) with epidural analgesia is a very safe and internationally accepted procedure. Prolonged surgeries upto 15 to 16 hours can be safely conducted under GA plus epidural analgesia. The epidural catheter can be kept in-situ for upto7 days. Epidural analgesia improves operating conditions by reducing blood loss, reducing requirement of general anaesthetics, thus facilitating faster recovery and waking up of patients post-operatively. Epidural analgesia can be continued in the post-operative period of pain relief. It gives remarkable pain relief, early mobility, and early return of bowel function, reduces pulmonary complications, reduces the risk of deep vein thrombosis, and facilitates early discharge from the hospital. In fact, the epidural catheter was planned for intra-operative and post-operative pain relief for the above mentioned reasons as the surgery was very complex and was expected to go on for a long duration.
G) Amputation of Right leg- foot:
The debridement was done for the ulcer on the right foot which was present before November 2002. However, patient did not develop any new ulcers above the ankles after the bladder augmentation surgery performed by OP-2. The allegation that because of epidural the patient suffered loss of sensation below knee and got ulcer on the right foot. Complainant claims that "he had to run to five hospitals" and finally amputation was done at Sancheti Hospital, Pune. The medical record of Sancheti Hospital revealed the patient underwent amputation of his right leg in May 2013. The discharge summery clearly mentioned under the clinical findings and the diagnosis as "chronic non-healing ulcer right foot in a case of spina bifida". He was operated through knee amputation right lower limb on 14.05.2013. Thus, it is apparent that the patient was suffering from chronic non healing ulcer over right foot since ten years. The medical history is evident that patient was born with an anomaly - spina bifida with MMC, which is a progressive disorder with bladder bowel involvement and neurological deficits in lower limbs. The patient was already suffering from loss of sensation below ankle prior to 2002 and also developed non healing trophic ulcers in the right foot. In year 2013 amputation of his right leg performed has nothing to do with anaesthesia given in 2002.
H) No relation between Filariasis and anesthesia.
As per medical literature, Filariasis is an parasitic disease affecting the lymphatic system of the body. It is transmitted by mosquito bite. The lymphatic damage predisposes to bacterial infection that causes recurrent acute attacks of dermato-lymphangio-adenitis in the affected limbs. At Terna Sahyadri Hospitals at Nerul (W), Navi Mumbai the patient was diagnosed as Filariasis of left lower limb. It is pertinent to note that during surgery anaesthesia was given by OP-1 in year 2002 and after 12 years patient suffered Filariasis in year 2014. Both are totally distinct and separate entities, having no relation with each other.
Mobility of the complainant:
The complainant has stated himself that "for some time the complainant did drove a two wheeler which specially designed for him, but that too has become almost impossible now after amputation of his right leg". Thus, it is pertinent to note that, the complainant could ride his modified two wheeler for 11 years after operation from 2002 till he underwent amputation of right leg on 14/05/2013. It thus proves he was mobile for 11 years.
We have perused the certificate produced by the complainant from a neurologist Dr.Arun B.Shah dated 6.9.2009, The certificate states as ;
"Mr. Rao was born with congenital defect called spina bifida with Meningomyelocele for which he has undergone three surgeries in the past and has no bladder bowel control since birth. He walks with the help of crutches. Loss of sensations below knee L4/L5, S1 blunting as per EMG, NCV report. It is impossible for a persona with such bodily disability to ride a two wheeler scooter."
(extracted from page no 79 of part I)
It is pertinent to note that the complainant is misleading the commission by producing certificate of Dr.Arun B Shah, though he was able to walk with crutches at the relevant period. Also, complainant had obtained fitness certificate from All India Institute of Physical Medicine and rehabilitation, issued on 1997 for riding a modified two wheeler. In our view patient's mobility was present.
j) Surgical side effects with risk and the complications:
According to OP-1 the patient came out of both the general anaesthesia and the epidural anaesthesia very smoothly without any problems. Patient's post-operative sensory levels were exactly as they were noted preoperatively. The morbidity suffered by the patient was because of the progressive neurological ailment which was due to the congenital meningomyelocele that the he suffered right from his birth.
It is known and accepted fact that every treatment carries inherent risks associated with any surgical / anaesthesia procedure. It will be more when co-morbidity exists in the patient. Therefore, known complications should not construed as deficiency or medical negligence of the treating doctor. and hence no compensation becomes due and payable.
Conclusion:
We do not find any wrong about the surgery performed in OP-3 hospital though it was children's hospital because it is one of the reputed hospitals in Mumbai having all the facilities including well equipped operation theatre. It is well known that many adults who have been patients of the hospital since childhood have tendency and prefer to continue to be treated there. The OP-2 had planned to perform an Augmentation and appendicovesicostomy (Mitrofanoff surgery) using the appendix - but the location of the appendix and pelvis was such that the appendicovesicostomy could not be performed at that time. It would be hazardous if undertaken and could have led to grave and life threatening complications, thus appendicovesicostomy was deferred. In the instant case. The Bladder Augmentation operation was successful. The suprapubic catheter helps to keep the patient's bladder empty. In fact most of patients prefer to retain the SP catheter permanently for ease of use. In the instant case, the patient was asked to follow up further to plan and prepare for further additional surgeries to get rid of the SP catheter if he was finding it cumbersome. But he chose to not follow up with the concerned doctors after the first postoperative visit. There was no negligence on the part of anaesthetist either during administration of anaesthesia or post-operative follow up. Because of patient's inherent spinal deformity (MMC) the sensory loss in leg and the tropic ulcers were aggravated. It led to amputation of right leg. Filarisis is a parasitic infestation which by any stretch of imagination related with the treatment given by OPs in 2002. We do not think as it was the case of res ipsa loquiter. Thus, in totality we do not agree that the present suffering of the patient has any relation with the operation took place in year 2002.
We note that the OP-1 was engaged as chief anesthetist during the said surgical procedure. Accordingly the complainant was informed that he was given chief anesthesia and also epidural injection of analgesic on the spinal cord. During the course of surgery, complainant's loss of sensation prevailing in the ankle's rose to knee level in both the legs and it remained permanent and irreversible. The Maharashtra State Human Right Commission(SHRC) heard the matter and during the proceedings the Order clearly noted the presence of respondent Dr. Supriya Gajendragadkar the anesthetist with other two respondents namely Dr. Santosh Karmarkar and Dr. Dod, the chief Sr. Executive of Wadia hospital. Thus, the complainant was aware of the opposite party no. 1, but he did not impaled the opposite party no. 1 in the first complaint (CC/22/2005) filed before the State Commission. Therefore, the doctrine of waiver is squarely applicable in the instant case. The complainant relied upon few decisions of Hon'ble Supreme Court. For the rule of discovery, he relied upon the case of V. N. Srikhande vs. Anita Sena Fernandes (2011) 1 SCC 53. However, in our view, it is not applicable in the instant case because complainant was aware of the anesthetist who administered anesthesia during first operation. The present disabilities of the patient are due to the natural progression of his birth defects and its sequel. These are vague allegations of complainant against the opposite parties, and non-sustainable in the eyes of law.
Base on forgoing discussion, we are of the view that the complainant filed this complaint on the same cause of action and after a decade. It is will be the travesty of justice to entertain such complaint again after 14 years which clearly indicates the ill intentions of the complainant to harass the medical professionals ad infinitum. We feel it is the duty of the tribunals or courts to protect the bonafide doctors dragged in such frivolous litigation. Though we, taking note of Section 26 of the Act,1986 think that some cost would have been imposed upon the complainant, but we sympathetically are deferring it on considering the present health status of the complainant. We find no merit in the instant consumer complaint and as well it's 'res judicata' and barred by limitation.
The complaint is dismissed. There shall be no order as to cost.
Per Hon'ble Mr. Dinesh Singh, Member
On 18.02.2019, at the time of hearing, in furtherance to the previous daily Order dated 16.11.2018, arguments were principally led on the question of maintainability of the complaint.
The material chronology is as below:
The event of alleged medical negligence took place on 07.11.2002.
The complainant filed a complaint, being c.c. no. 22 of 2005, before the State Commission on 18.02.2005.
The opposite parties in the said c.c. no. 22 of 2005 before the State Commission were as below:
Opposite party no. 1: Dr. Santosh J. Karmakar, the doctor.
Opposite party no. 2: Bhai Jerbai Wadia Hospital for Children, the hospital.
The State Commission dismissed the complaint vide its Order dated 20.05.2006.
The complainant filed an appeal, being f.a. no. 336 of 2006, before this Commission.
This Commission remanded the case to the State Commission for hearing afresh vide its Order dated 26.11.2007.
On hearing afresh, the State Commission dismissed the complaint vide its Order dated 25.03.2009.
The complainant filed an appeal, being f.a. no. 181 of 2009, before this Commission.
This Commission decided the appeal vide its Order dated 14.10.2014, imposing a cost of Rs. 25,000/- on the opposite party no. 1, the doctor.
The complainant filed a review petition, being no. 24 of 2014, before this Commission.
This Commission dismissed the review petition vide its Order dated 28.11.2014.
The complainant filed an SLP, being no. 21533 - 21534 of 2015, before Hon'ble Supreme Court.
Hon'ble Supreme Court dismissed the SLP vide its Order dated 01.07.2015.
The complainant filed a review petition, being no. 3684-3685 of 2015, before Hon'ble Supreme Court.
Hon'ble Supreme Court dismissed the review petition vide its Order dated 15.12.2015.
The complainant filed a fresh complaint, being the instant c.c. no. 1336 of 2016, before this Commission on 17.08.2009.
The opposite parties in the instant c.c. no. 1336 of 2016, now filed before this Commission, are as below:
Opposite party no. 1: Dr. (Mrs.) Supriya Gajendragadkar, the anaesthetist.
Opposite party no. 2: Dr. Santosh J. Karmakar, the doctor.
Opposite party no. 3: Bhai Jerbai Wadia Hospital for Children, the hospital.
We may, here, refer to section 11 of the CPC:
Res judicata.- No Court shall try any suit or issue in which the matter directly or substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
Explanation I.-The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto
Explanation II.- For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.
Explanation III.- The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation IV.- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation V.- Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused.
Explanation VI.- Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
Explanation VII.-The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as reference, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.
Explanation VIII.-An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.
We may also refer to Order I Rule 3 of the CPC:
Who may be joined as defendants.- All persons may be joined in one suit as defendants where-
(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist against such persons, whether jointly, severally or in the alternative; and
(b) if separate suits were brought against such persons, any common question of law or fact would arise.
We may further refer to Order II Rule 2 of the CPC:
Suit to include the whole claim. - (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part claim.- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs. - A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
Explanation.- For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.
We note that, along with the doctor, the anaesthetist was also an integral part of the surgical team when the event of alleged medical negligence took place in 2002. But the anaesthetist was not arrayed as an opposite party in the c.c. no. 22 of 2005 first filed before the State Commission. The anaesthetist has now been arrayed as an opposite party in the instant fresh c.c. no. 1336 of 2016 filed before this Commission, and the doctor and the hospital (who were the opposite parties in the earlier c.c. no. 22 of 2005 filed before the State Commission) have also been included herein as opposite parties.
The argument that "anaesthetic negligence" came to knowledge only in 2016, and therefore the complainant could lawfully file a fresh complaint (being c.c. no. 1336 of 2016 before this Commission), by also arraying the anaesthetist as one opposite party, and by also including the doctor and the hospital as opposite parties (who were the opposite parties in the earlier c.c. no. 22 of 2005 instituted before the State Commission), led by the complainant in person and by the learned counsel for the complainant, is totally untenable.
It is well made out from the medical literature on record that 'new and important matter or evidence' apropos anaesthesia, now being attempted to be put forth in the re-articulated and re-instituted complaint (c.c. no. 1336 of 2016) before this Commission was in the public domain well before the event of alleged medical negligence took place on 07.11.2002 and well before the first complaint (c.c. no. 22 of 2005) was instituted on 18.02.2005 before the State Commission.
Further, after Hon'ble Supreme Court dismissed the SLP no. 21533-21534 of 2015 vide its Order dated 01.07.2015, no Application for review of judgment "from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when decree was passed or order made" was filed by the complainant by taking recourse to the principles contained in Order XLVII Rule 1 of the CPC.
The argument that a fresh complaint (being c.c. no. 1336 of 2016) can now be filed by arraying the anaesthetist as an opposite party, and by also including the doctor and the hospital as opposite parties (who were the opposite parties in the c.c. no. 22 of 2005 first instituted before the State Commission), is repugned by the principles contained in Order I Rule 3 and Order II Rule 2 of the CPC.
It is also repugned by the principles contained in section 11 Res judicata of the CPC, since the fresh complaint (c.c. no. 1336 of 2016 before this Commission) has been filed on a matter which has been directly and substantially in issue in an earlier case (c.c. no. 22 of 2005 before the State Commission) and has been heard and finally decided.
The complaint is, therefore, dismissed as being not maintainable.