The above said cross appeals have been filed by the Complainant and the Opposite Parties (OPs-1 and 2) under Section 19 of the Consumer Protection Act, 1986 against the impugned order dated 27.12.2013 passed in C.C. No. 7 of 2012 by A. P. State Consumer Disputes Redressal Commission, Hyderabad (in short, ‘the State Commission’) whereby the State Commission allowed the complaint of the complainant and directed the OPs 1 and 2 to pay a sum of Rs. 3 lakh together with cost of Rs. 5,000. The complainant filed an Appeal No. 212 of 2014 for the enhancement of compensation whereas OPs have filed the appeal No. 168 of 2014 for setting aside the order passed by the State Commission and dismissal of the complaint.
2. For the convenience, the parties are placed to the respective positions as in the original complaint. The brief facts are drawn from FA No. 212 of 2014. The complainant, Bhagwan L. Moorjani (hereinafter referred as “the patient”) was suffering from nasal congestion, sleep disturbance during night and watering of eyes. In early 2011, the patient consulted OP 2/Dr. E.C. Vinay Kumar at Apollo Hospital, Hyderabad/OP 1. Initial course of broad-spectrum antibiotics was given and OP-2 reviewed the condition of the patient on 2.3.2011, and CT Scan was performed, it was reported as “ the extensive destruction of lamina papyracea and that the said lesion was ‘eroding’ through the right medial wall and is abutting and displacing medial rectus”. The patient was finally diagnosed as ‘Sinonasal Polyposis’ with ‘intra orbital extension’. OP-2 advised the patient for ‘Functional-Endoscopic-Sinus-Surgery (FESS)’ to remove the polyposis. OP-2 had assured that it was common and routine surgical procedure, which usually lasts for 2 to 3 hours. He did not mention anything about the Ocular complications. The patient got admitted on 7.3.2011 and the FESS was performed around 11.20 a.m. on 8.3.2011. After the operation, patient’s wife was informed that, it was fungal infection and surgery was satisfactory.
3. At about 2.00 p.m. the complainant’s wife noticed that, the patient’s right eye was rolled on to one side and he was complaining about loss of vision in his right eye. On inquiry with the doctors, it was informed that, it might be due to ‘tight packing in his nasal cavity which could cause pressure on optic nerve and a temporary loss of vision. Again, at about 4.30 p.m. the patient was taken into the operation theatre for re-exploration. The re-exploration did not reveal any significant findings like hematoma or active bleeding at the site of operation. During the night around 8.00 p.m., OP-2 with other doctors and the Ophthalmologist informed the patient’s wife that, the patient suffered very rare complication of sinus surgery, which has caused loss of vision in the right eye. It could be due to ‘apparent defect secondary to CRAO (Central Retinal Artery Occlusion) ‘orbital edema’, ‘optic neuropathy’. Therefore, OP-2 prescribed high doses of steroid to reduce the edema and for revival of optic nerve. On the 4th day i.e. on 11.3.2011, at 9.30 p.m. the patient was discharged without giving any details of treatment procedure. On 5.4.2011, the patient consulted Dr. Santosh G. Honavar at LV Prasad Eye Institute, Hyderabad who diagnosed it as “diffuse sub-conjunctival haemorrhage in the inferior aspect” and “medial rectus palsy and optic neuropathy, following paranasal surgery for allergic fungal sinusitis”. Thereafter, on 12.4.2011, patient sought another opinion from Maa E.N.T. Hospital, Hyderabad, the doctors there after examination informed the complainant that, he would have undergone CT guided debridement surgery, when the fungal infection was close to optic nerve, it could have been avoided paralysis of medial rectus.
4. Therefore, it was alleged that due to negligence of OP-2, complainant had suffered damage to his left eye. The OP-2 and hospital have failed in their duty, had it been informed to the complainant about the risk to the eye sight after surgery, the complainant would have sought a second opinion. Therefore, for alleged medical negligence and deficiency in service, the complainant filed a consumer complaint before Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad (in short, ‘the State Commission’) seeking proper compensation from the OPs.
5. The OPs filed the written version and denied all the allegations. OP-2 submitted that after clinical examination of the patient, CT Scan was performed. It revealed “Right Maxillary sinus polyposis with haemorrhagic foci and extensive destruction of lamina papyracia on the right side. Lesion was eroding ethmoid wall and is abutting and displacing medical rectus and nasal septum.” There was a possibility of right Antro-choanal polyp with secondary fungal infection with extensive bone destruction. The patient was also suffering from Orbital cellulites, thus needed immediate surgery. The details of prognosis of the disease and treatment aspects were informed to the patient and his wife; OP-2 under General Anesthesia performed emergency FESS on 8.2.2001 at 11.00 a.m. After the procedure at about 2.00 p.m. the patient had complaints of loss of perception to light, therefore, patient was immediately taken for re-exploration surgery under General anesthesia. It was found that the Optic nerve was intact without any pressure from the packings. There was no hematoma or active bleeding. OP-2 replaced the old surgical packings in right sphenoid and ethmoidal sinuses. OP-2 had submitted that, initially the opinion of Ophthalmologist was not taken because according to the CT scan, the fungus was only in nasal sinus i.e. in the extra ocular location; therefore there was no need of Ophthalmologist before or during surgery. The Ophthalmologist was called to assess the degree of loss of vision when the patient had complained about loss of perception of light after surgery. The opinion was taken for possibility of CARO Orbital Edema and Optic neuropathy. Therefore, it was managed conservatively with the help of low dose of IV steroid. The HPE report revealed that, it was allergic Aspergillosis. Therefore, the dose of steroid was increased to 1 gm to 12 hourly after seeking opinion from Endocrinologist. In spite of all measures, the vision in the right eye of the complainant did not improve. Hence, there was no negligence either from the doctor or from the hospital.
6. The State Commission after hearing both the parties and on the basis of evidence, allowed the complaint and awarded compensation of Rs. 3 lakh along with costs of Rs. 5,000. Being aggrieved by the impugned order, both the parties filed appeals before this Commission. First Appeal No. 168 of 2014 was filed by the OPs for dismissal of complaint whereas; the complainant filed First Appeal No. 212 of 2014 for enhancement of compensation.
7. Heard the learned Counsel for both the parties. The Counsel for the complainant vehemently argued that, it was a gross negligence from the OP/hospital and treating doctors/OP-2. The complainant was kept in the dark about the disease and the treatment aspects. At the time of consultation, OP-2 did not disclose about post surgical Ocular complications, otherwise, the complainant would have sought second opinion with respect to his suffering and only medical management could be adopted instead of FESS. OPs failed to take informed consent for FESS or re-exploration. The Counsel further submitted that, OP-2 had also failed to take Ophthalmological opinion prior to the surgery. Due to wrongly performed FESS by OP-2 , it was led to damage of Ocular nerve. It was an ex faci, direct consequence of the surgery and deficiency in service by OP-2. Learned Counsel for the complainant relied upon the decision of Apex Court in case Prasanth S. Dhananka & Ors., II (2009) CPJ 61 (SC)=III (2010) SLT 734=(2009) 6 SCC 1, wherein it was held that:
“… the attending doctors were seriously remiss in not associating a neurosurgeon at the pre-operative as well as at the stage of operation.
8. Regarding the quantum of compensation, learned Counsel has relied upon the decision in the case of Charan Singh v. Healing Touch Hospital, III (2000) CPJ 1 (SC)=87 (2000) DLT 573 (SC)=VI (2000) SLT 867=2000 (7) SCC 668 wherein it was held that:
“…..Indeed, calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to established judicial standards where the claimant is able to establish his charge. It is not merely the alleged harm or mental pain, agony or physical discomfort, loss of salary and emoluments etc. suffered by the appellant which is in issue. It is also the quality of conduct committed by the respondents upon which attention is required to be founded in a case of proven negligence.”
9. As per the complainant’s contention, the Ophthalmologist ought to have been involved in performing surgery upon him but the OP refuted the charge on the premise that basic disease was fungal growth from sinus invading the surrounding tissues and as such Ophthalmologist has no role either before or during surgery. The complainant after discharge from OP-1/Hospital, consulted Dr. Santosh Honavar of LV Prasad Hospital. He opined that on account of surgery performed by OP-2, he had lost the vision and also the movement of the eye.
10. The learned Counsel for OPs submitted that, there was no negligence on the part of OPs. The Counsel reiterated the submission made in their written statement. As per the CT scan dated 2.3.2011, the mass was spreading, almost to the entire right side of the face, therefore, immediately debridement was necessary to avoid a risk of spread into the brain , which may result into death of the patient. Thus, because of emergency; OP-2 had successfully done debridement of entire mass, but unfortunately the complainant suffered complications. Post operatively; on 10.3.2011 the 2nd CT Scan of Orbits was performed; it showed intact Optic nerve and thus, there was no damage to the optic nerve during surgery. The OP-2 acted as per standard of practice and there was no negligence. The OP had relied upon the medical texts from ‘Ballenger’s Otorhinolaryngology Head and Neck Surgery’; ‘Scott-Brown’s Otorhinolaryngology, Head and Neck Surgery’ and the Review Article titled ‘Complications and medicolegal aspects of endoscopic sinus surgery’.
11. I have perused the entire medical record of OP/Hospital. It is an admitted fact that, the patient was investigated prior to FESS surgery. The CT Scan was performed on 2.3.2011 i.e. prior to admission which revealed large heterogeneous soft tissue density mass involving right maxillary sinus. The lesion was eroding through right medial wall and was abutting/displacing medial rectus (eye muscle) and also the nasal septum. Thus, it was suggestive of right antrochoanal Polyp with secondary Fungal infection with Extensive bone destruction. Thus, the lesion was extending into middle meatus, posterior choana, sphenoid sinus, ethmoid mass involving right maxillary sinus. As the patient was suffering from Orbital cellulitis, therefore, immediate surgery was needed for decompression of aggressive fungal mass/infection from sinus, it was invading surrounding tissue and likelihood of spread of infection to brain also. Hence, OP had performed the emergency FESS on 8.3.2011 under General Anesthesia.
12. Perused the report issued by Ophthalmologist, Dr. Santosh Honavar. It revealed that the complainant had history of sudden loss of vision following FESS. Patient had suffered medial rectus palsy and optic neuropathy also. Dr. Honavar noted that, the patient had absent perception of light in the right eye. The patient was also advised to continue treatment as suggested by ENT Surgeon and advised for Ophthalmologist’s follow up as and when required (sos). Patient could be considered for extra-ocular muscle surgery for residual strabismus of right eye after three months.
13. I have perused the CT scan dated 10.3.2011 (at page 174), which shows “the right optic nerve appeared mildly thickened and deviated medially? Due to edema “Medial rectus is markedly thin in its mid portion abutting the area of bony erosion.” On bare reading of the said report, it is clear that there was no damage to the optic nerve because of FESS procedure. OP-2 performed it, as it was necessary for urgent decompression to avoid the intra orbital extension of fungal mass, which would have fatal to the patient, if the mass invade in brain. Therefore, in my view , it was neither wrong diagnosis or negligence in performing FESS by the OP-2. No doubt, the opinion of another ENT specialists at Maa Hospital, the CT guided debridement would have helped the patient, but OP-2 had chosen FESS , as an accepted method for the invasive fungal infection in the nasal in the sinus. FESS also permits direct magnified observation of the surgical area and allows controlled debridement. Moreover, at that point of time, the computer guided surgery for fungal infection was in experimental stage and the usefulness of the said device was yet to be proved. The CT guided surgery is needed to avoid anatomical damage to the optic nerve, but in the instant case, there was no damage to the optic nerve after FESS, which was confirmed by post-operative CT scan report. Therefore, in my view, complainant’s allegation of damage to optic nerve is not sustainable. As per the settled legal position, when there are two accepted modes of treatment, the doctor can choose one and if anything goes wrong for such procedure, he cannot be blamed that he ought to have been gone for the other mode. Admittedly, in the instant case, OP-2 adopted for FESS, as an accepted method of the treatment. Therefore, it was not negligence.
14. The questions for consideration are; whether the Ophthalmologist’s opinion was necessary before performing FESS? It is an admitted fact that OP-2 had examined the patient and confirmed that, patient was suffering from Orbital cellulites having swelling in the right eye and medial rectus was deviated. Thus, in my view, in the instant case, before proceeding to the surgery, Ophthalmologist’s opinion was necessary to avoid unforeseen ocular complications or other available treatment options. OP-2 has not placed any evidence to prove whether the patient had vision in his right eye prior to the surgery. Thus, certainly, the pre-operative Ophthalmologic assessment from an Ophthalmologist would have given clear picture of extent of vision in the right eye. The patient would have an option of either to defer the FESS surgery or to seek opinions from higher centers/think any options for alternative treatment modalities also. Therefore, in my view, OP-2 failed in his duty of care; but proceeded for surgery, which amounts to be a “therapeutic misadventure”. The Ophthalmologist’s opinion and assistance certainly would have an impact on the treatment of extensive fungal sinusitis. OP-2 has not placed any evidence to prove that the complainant/patient had denied for the Ophthalmologist’s reference. Thus, if the complainant had made aware of the risk of loss of vision, they would not have opted for surgery. Therefore, the OPs are liable for the extent of incomplete information i.e. the consent was not an informed consent for FESS.
15. The concept of Informed Consent has been disused in the catena of judgments from Hon’ble Supreme Court. In the case Samira Kohli v. Dr. Prabha Manchanda & Anr., I (2008) CPJ 56 (SC)=II (2008) SLT 25=(2008) 2 SCC 1, Court observed that:
32. We may now summarize principles relating to consent as follows:
(i) A doctor has to seek and secure the consent of the patient before commencing a ‘treatment’ (the term ‘treatment’ includes surgery also). The consent so obtained should be real and valid, which means that: the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what is consenting to.
(ii) The ‘adequate information’ to be furnished by the doctor (or a member of his team) who treats the patient, should enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment as to whether he should submit himself to the particular treatment or not. This means that the Doctor should disclose (a) nature and procedure of the treatment and its purpose, benefits and effect; (b) alternatives if any available; (c) an outline of the substantial risks; and (d) adverse consequences of refusing treatment. But there is no need to explain remote or theoretical risks involved, which may frighten or confuse a patient and result in refusal of consent for the necessary treatment. Similarly, there is no need to explain the remote or theoretical risks of refusal to take treatment which may persuade a patient to undergo a fanciful or unnecessary treatment. A balance should be achieved between the need for disclosing necessary and adequate information and at the same time avoid the possibility of the patient being deterred from agreeing to a necessary treatment or offering to undergo an unnecessary treatment.
In the instant case, OP-2 had failed to inform the expected visual complications after FESS.
16. Similarly in the case of Kusum Sharma & Ors. v. Batra Hospital & Med. Research, I (2010) CPJ 29 (SC)=II (2010) SLT 73=(2010) 3 SCC 480, Hon’ble SC observed that:
50. Medical science has conferred great benefits on mankind, but these benefits are attended by considerable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking risks. Every advancement in technique is also attended by risks.
51. In Roe and Woolley v. Minister of Health, (1954) 2 QB 66, Lord Justice Denning said : “It is so easy to be wise after the event and to condemn as negligence that which was only a misadventure. We ought to be on our guard against it, especially in cases against hospitals and doctors. Medical science has conferred great benefits on mankind but these benefits are at
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tended by unavoidable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking the risks. Every advance in technique is also attended by risks. Doctors, like the rest of us, have to learn by experience; and experience often teaches in a hard way”. 52. It was also observed in the same case that “We must not look at the 1947 accident with 1954 spectacles”. “But we should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong. Doctors would be led to think more of their own safety than of the good of their patients. Initiative would be stifled and confidence shaken. A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work. We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure . 17. It is true that due to the extensive fungal growth, the operation was inevitable and thus OP-2 had performed FESS in the best interest of patient. The medical record, pre and post-operative CT scan reports; clearly establish that, there was neither injury to the Optic nerve nor the Medial rectus muscle during FESS. In addition, the patient was suffering from Diabetes, Hypertension for many years, which might be a contributory factor to loss of vision. However, in my view , the OP-2 is liable to the extent of failure to take opinion or consultation from the Ophthalmologist before the FESS procedure. Moreover, OP-2 had not informed the patient about ophthalmic complications and performed FESS; thus as such there was no informed consent. It was the therapeutic misadventure only. 18. On the basis of discussion above, in my view, Rs. 3 lakh compensation awarded by State Commission is just and proper in the instant case. There is no justification for enhancement of compensation. Therefore, both the appeals are dismissed; however, there shall be no order as to costs. Appeals dismissed.