R. Lakshminarsimha Rao, Incharge President
The complaint is filed seeking direction to the opposite parties to rectify (restore) the damage caused to the complainant’s eye vision at their exclusive cost/expense or to pay a compensation amount of Rs.1 core to the complainant and pay interest from the date of filing of complaint till the actual date of realization, restrain the opposite parties from carrying on unfair/unethical practice and costs
The averments of the complaint are that the complainant in the month of February, 2011 consulted the opposite party No.2 with complaint of congestion in his nasal passages, inability to sleep at night and watering of eyes. Initially, opposite party No.2 prescribed Augmentin 1 gm for 7 days and on 2nd March, 2011 on review asked the complainant to undergo a CT scan of his paranasal sinus and on the basis of the said report advised the complainant that there was polyp in the sinus cavities and he had to undergo a surgery as soon as possible and convinced the complainant that this would be a surgery connected to his sinus i.e. totally an ENT procedure at opposite party No.1 hospital.
The complainant submitted that he was admitted in OP 1 hospital on 07-3-2011 and after all the pre-surgical tests, he was operated on 8th March, 2011 at 11.20 a.m. At 2.00 p.m. when the complainant’s wife was informed that the surgery was completed and the disorder was a fungal infection, she saw the complainant in recovery room and his right eye appeared to roll on to one side, obscured by a large blood clot. Thereafter the complainant submitted that his wife was summoned to the recovery room where she witnessed an emergency situation and the complainant being surrounded by several doctors and technicians including an Ophthalmologist who was administering a clinical test for his vision. The complainant wife was told that the complainant complained of loss of vision in his right eye and when she questioned, she was informed it could be due to ‘tight packing’ in his nasal cavity which could put pressure on optic nerve and cause temporary loss of vision.
The complainant submitted that he was again taken to operation theatre for another surgery and around 4.30 p.m. the complainant’s wife was informed that the surgery was over and thereafter the complainant informed his wife that there was no change in his vision. The complainant submitted that about 8.00 p.m his wife was again summoned to the cabin of Ophthalmologist where 4-5 doctors including opposite party No.2 was present and they informed the complainant’s wife that one of the very rare complications of sinus surgery was loss of vision which could be the outcome of pressure on the optic nerve and that they called for an expedited pathological report to determine the kind of fungus and depending on the report, further treatment would be administered and that high doses of steroids would have to be administered to the complainant to cause edema to subside and give a chance for revival to the optic nerve. The Ophthalmologist further went on to explain that there are two kinds of fungus, invasive, which is life threatening and allergic aspergyllosis and for allergic aspergyllosis they could safely administer steroids.
The complainant submitted that his wife reacted to the opposite party No.2 and stated that had they been told prior to the surgery that there was risk to eye sight in the surgery, they would have taken second opinion and the opposite party No.2 replied that there was fungus in his eye muscle and he had to debride it. The complainant submitted that on the next day morning i.e.09-3-2011 that when Ophthalmologist visited, OP 2 repeated his version of edema affecting optic nerve and offered hope that vision could pick up any time within next 48 hours and a lady Ophthalmologist told the complainant that ‘optic nerve cannot be repaired or replaced’.
The complainant submitted that the pathological report confirmed allergic aspergyllosis and so intravenous steroids were stepped up. The complainant submitted that on very next morning i.e. 10-3-2011, he was taken to ENT Department for a post surgical clean up procedure where OP 2 ordered a CT scan of Orbits and in the evening OP 2 informed the complainant’s wife that the eye was clinically intact and no damage had been done during the surgery to the optic nerve and therefore the complainant continued to hope that his vision could still return.
The complainant submitted that on 11-3-2011 the complainant was discharged late night around 9.30 p.m and the discharge summary made no mention of loss of vision of the complainant and upon insistence a sentence was added to the effect. The complainant submitted that on 18-3-2011 he had taken the CT scan done at Apollo hospital to LV Prasad Eye Institute for further examination and Dr.Santosh Hunavar after making a thorough study of the pre and post surgical CT scan opined that ‘aggressive invasion of the ethmoid sinuses had caused much damage to the optic nerve and paralysis of medical rectus which is the muscle which controls the left right movement of the eye ball thus the eye had not only lost vision but had also lost movement’. The complainant further submitted that his further consultation with Maa ENT hospital on Raj Bhavan Road, Hyderabad gave him knowledge that had a computer guided debriding machine used in cases where fungal infections do occur close to optic nerve, the damage to the optic nerve and the resultant paralysis of medical rectus could have been avoided.
The complainant submitted that from the forgoing it is clear the diagnosis of surgical correction of sinus by the opposite parties was wrong and the opposite parties were in a hurry to go for a surgery before fungus on eye muscle was diagnosed. The complainant submitted that being an experienced ENT surgeon, the opposite party No.2 ought to have foreseen a situation necessitating to debride the fungus on/of eye muscle or during the surgery he ought to have chosen a place where facilitating apparatus were available. Once the fungus on eye muscle was found on the surgical table, he ought to have availed the services of an Ophthalmologist/surgeon or the services of a computer guided debriding machine instead taken upon himself the process of debriding which resulted in loss of an eye of the complainant.
The complainant submitted that the post surgical CT scan taken in OP 1 hospital and its results explained to him by the opposite parties and its willful false hopes of return of vision are contrary to the facts. The complainant submitted that the malafide intention of the opposite parties is also evident from the report of the CT scan and it did not disclose the truth and contained concocted version and the opposite parties have not only fabricated evidence through written report to suppress their acts and committed serious breach of truth.
The complainant submitted that he was actively involved in business and was earning substantial sum besides having engaged in writing books and therefore the loss of eye sight totally impaired his decent living and economic prospective besides causing mental agony. The complainant got issued a notice on 12-8-2011 to the opposite parties to bear expenses for damage caused at their exclusive cost or pay compensation of Rs.5 crores forthwith and the opposite parties sent an e-mail reply that their legal cell would give a reply shortly. They neither replied nor met the demand of the complainant. Hence the complaint.
The opposite parties resisted the case contending that the complainant with a history of long standing hypertension came to the opposite party No.1 hospital on 07-3-2011 with complaints of nose block, discharge and cold since November, 2010 with pain and swelling in the right eye of 10 days duration which was progressive in nature, treated initially with medication. The opposite parties submitted that the complainant was admitted into 1st opposite party hospital and was examined by the 2nd opposite party, CT scan of para sinuses coronal and axial done on 2-3-2011, prior to admission of the patient which revealed large heterogenous soft tissue density mass involving right maxillary sinus extending into middle meatus posterior choana, sphenoidsinus ethmoid sinus, right nasal cavity and frontal sinus. The opposite parties submitted that the lesion showed multiple hyper densities within suggestive of hemorrhagic foci. Extensive destruction of lamina papyracia was noted on the right side.
The opposite parties submit that the lesion is eroding ethmoid wall and is abutting and displacing medical rectus and nasal septum. Large polypoidal soft tissue was noted in left maxillary sinus and frontal sinus and found that nasal septus is deviated to left side and right middle and interior turbinetes are completely obscured. CT features suggested possibility of right Antrochoanal polyp with secondary fungal infection with extensive bone destruction. The opposite parties submit that the complainant was suffering from orbital cellulites and needed immediate surgery. The second opposite party submitted that he counselled the complainant and his wife informing them the urgency of the surgery to avoid risk to the life of the complainant due to fungal infection from sinus invading surrounding tissue conducted emergency functional endoscopic sinus surgery on 08-3-2011 under General Anesthesia. At 2.00 p.m. the complainant complained of loss of perception to light and immediately taken up for re-exploration under General anesthesia which revealed no hematoma or active bleeding and that the optic nerve was intact and there was no unusual pressure by packing. Surgical packing in right sphenoid and ethmoidal sinuses was removed and packing done with IVA LON pack.
The opposite parties submit that the ophthalmologist opinion was sought felt as it was apparent defect secondary to CRAO orbital odema, optic neuropathy and should be managed conservatively by giving low dose of IV steroid pending HPE report and blood glucose levels. After the pathological report confirmed allergic aspergillosis, dose of steroid was increased to 1 gm methuyl predinisolone IV 12 hourly after consulting endocrinologist. The opposite parties submit that the complainant was reviewed by Ophthalmologist, endocrinologist infectious disease team on all days of his stay in the hospital, bilateral anterior nasal pack was removed on 09-3-2011 and nasal toilet was done on 13-3-2011 and inspite of all these measures there was no improvement in the vision of the complainant.
The opposite parties submit that before conducting surgery, the 2nd opposite party informed to complainant the risk involved in the surgery including risk of loss of vision, the basic disease is fungal growth from sinus invading the surrounding tissues and the ailment suffered by complainant is extra ocular and not intra ocular and as such Ophthalmologist has no role either before or during the surgery and when the patient complained of loss of vision, the Ophthalmologist was called to assess the degree of loss of vision so that appropriate treatment can be given.
The opposite parties denied that they informed that the disorder was only fungal infection and submitted that there was an extensive fungal growth involving nose and sinus with infra orbital extension with orbits bulging into nasal cavity and also denied the other allegations made in the complaint and submit that there is no deficiency in service and prayed for dismissal of the complaint with costs.
The complainant filed his affidavit and relied on Exs.A1 to A8. The opposite party No.2 filed his affidavit and did not choose to file any documents.
The learned counsel for the opposite parties filed written arguments
The point for consideration is whether there is any deficiency in service on the part of the opposite parties and if the complainant is entitled for the relief prayed for in the complaint?
The complainant with a complaint of congestion of nasal passage, inability to sleep at night and watering of eyes approached the opposite paryt no.1-hospital in February, 2011 where the second opposite party examined him and prescribed ‘Augmentin 1 gm for 7 days and advised for review after 7 days and on 2.03.2011 when the complainant attended for review, the second opposite party advised him for CT scan of his para-nasal sinuses and after going through CT Scan report, the second opposite party diagnosed the complainant with polyp in his sinus cavities and advised him to undergo surgery therefor.
The second opposite party has stated that the CT report revealed ‘large heterogeneous soft tissue density mass involving right maxillary sinus extending into middle meatus posterior choana, sphenoid sinus ethmoid sinus, right nasal cavity and frontal sinus’. He has stated :
'It was noticed that that the lesion is eroding ethmoid wall and is abutting and displacing medial rectus and nasal septum. Large Polypoidal soft tissue ws noted in left maxillary sinus and frontal sinus. It was found that nasal septum is deviated to left side and right middle and interior turbinetes are completely obscured. CT features suggested possibility of right Antrochoanal polyp with secondary fungal infection with extensive bone destruction. The complainant was suffering from orbital cellulites and that the complainant needed immediate surgery in as much as the complainant was suffering from extensive disease requiring decompression of aggressive mass’.
The second opposite party suggested the complainant should undergo surgery and when the complainant preferred a hospital located nearer to his home at Secunderabad, the second opposite party, according to the complainant suggested first opposite party hospital.
The discharge summary issued by opposite party no.1 hospital on 12-3-2011 indicates the diagnosis of the disease as ’allergic fungal sinusitis with right intraorbital extension’ and his past history of illness is shown to be a ‘known case of hypertension since 30 years and on medication and on hospitalization he was found to be diabetic’. It is noted that the complainant is not allergic to any drugs. The discharge summary, further indicates performing of emergency functional endoscopic sinus surgery under general anaesthesia on 08-3-2011 and it is noted that surgical packing was done in right sphenoid sinus and ethmoidal sinuses with ivalon pack.
The complainant has stated that the opposite party no.2 performed the surgery upon him and the opposite party no.2 informed his wife that the surgery was successful and the disorder was a fungal infection and when she saw the complainant in recovery room, the complainant’s right eye appeared to roll on to one side, obscured by a large blood clot and thereafter she was summoned to recovery room to witness an emergency situation where a group of doctors surrounded the complainant making clinical test of his vision and she was informed that the complainant complained of loss of vision of his right eye.
The complainant was taken to the operation theatre again for re-exploration under general anaesthesia and the opposite parties sought for an opinion of Ophthalmologist who opined that it was apparent defect secondary to CRAO orbital edema, optic neuropathy and thereafter the complainant was discharged on 11-3-2011. The complainant’s contention that Ophthalmologist ought to have been involved in performing surgery upon him and the opposite party refuted the charge on the premise that the basic disease is fungal growth from sinus invading the surrounding tissues and as such Ophthalmologist has no role either before or during surgery. The learned counsel for the opposite parties has contended that even at LV Prasad Eye institute, the complainant was advised to consult a ENT surgeon.
The complainant after being discharged from opposite party no.1 hospital consulted LV Prasad Eye Institute for further examination and he stated that Dr.Santosh Honavar of LV Prasad hospital opined that on account of surgery performed by the opposite party no.2, he had lost vision as also the movement of the eye. The opposite parties would contend that Dr.Santosh Honavar has not expressed any opinion as to any negligence on their part at the time of performing surgery upon the complainant.
A perusal of medical report issued by Dr.Santosh Honavar of LV Prasad Eye institute goes to show that the complainant had a history of sudden loss of vision following his undergoing endoscopic sinus surgery for allergic fungal sinusitis and he was diagnosed to have suffered medial rectus palsy and optic neuropathy. The doctor opined
‘On examination, he had absent perception of light in the right eye and 20/80 improving to 20/20, N6 with refraction in the left eye. Intraocular pressure by applanation tonemetry was 12 mm Hg in both eyes. There was mild enophthalmos of the right eye with ocular motility restriction in adduction and elevation. There was iddfuse subconjunctival hemorrhage in the inferior aspect. Cornea was clear, anterior chamber was deep and quiet, pupil showed Grade-IV relative afferent papillary defect and the lens showed early cataract. Examination of the fundus showed peripapillary edema. The left eye was essentially normal except for early cataract.
Based on the clinical evaluation, the patient was diagnosed to have medial rectus palsy and optic neuropathy, following paranasal sinus surgery for allergic fungal sinusitis. The patient was advised to continue treatment as per the ENT surgeon and to return o u for the follow up as and when required. He may be considered for extraocular muscle surgery for residual strabismus of any after 3 months.’
The complainant has submitted that the opposite party no.2 failed to adopt computer guided surgery even after choosing the best equipped hospital for performing the surgery. The opposite parties have contended that CT guided debridement is not the standard of medical care suggested for operating the case of sinus surgery and computer guided surgery for fungal infection is in experimental stage as also the usefulness of the device is not yet proved. The learned counsel for the opposite parties has referred to literature, ‘Ballenger’s Otorhinolaryngology Head and Neck surgery’’ by Snow Wackym and the author opined as follows:
‘In an attempt to improve the safety and efficacy of the endoscopic approach to sinonasal disease, image-guidance systems have been developed. Several authors have reviewed their experience with the different types of image-guidance systems; however, it is still unclear from the current published literature if computer-guided endoscopic sinus surgery (CGESS) accomplishes these goals’.
In Seventh Edition ‘Scott Brown’s Otorhinolaryngology Head and Neck surgery’ Volume-2 edited by Michael Cleeson Ceorge c.Browing, Martin J.Burion, Ray Clarko, John Hibbert, Nicholos S.Jones, Valerior J Lund, Linda M.Luxon John C.Watkinson, it was held
‘Visual problems may be present if the problem is stage three (subperiosteal abscess) or beyond, and specific enquiries should be made regarding visual acuity and colour vision, problems which might indicate a compromise of optic nerve f
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unction. At stage five (cavernous sinus thrombosis) as well as chemosis, periorbital oedema and proptosis, there will be a progressive opthalmoplegia (lateral gaze may be affected first) and visual impairment (possibly resulting in total blindness) due to direct cranial nerve involvement together with other symptoms including headache ....’. In Journal of the Royal Society of Medicine Volume 90 August 1997 ‘Complications and medicolegal aspects of endoscopic sinus surgery’ it was held: ‘with respect to the orbit, the earlier the onset of orbital symptoms postoperatively, the worse the loss of visual acuity and ultimate prognosis; this was known before the advent of endoscopic surgery’. The opposite party no.2 except supporting his adopting the surgery and not the CT guided surgery, has not adduced any expert’s opinion particularly in the circumstances where he was diagnosed with diabetes and found to be not on medication. An Ophthalmologist’s opinion prior to the surgery ought to have been taken. The opposite party no.2 having decided to perform surgery at opposite party No.1 hospital could have informed the complainant about the CT guided surgery. We do not agree with the view of the opposite party no.2 in absence of any expert’s opinion that computer guided surgery is only in experimental stage could not have helped much in the way the surgery was performed upon him. The complainant claimed to get the damage caused to his eye remedied by the opposite parties at their cost or for a sum of Rs. 1 crore towards compensation. The complainant is a known case of hypertension. It is not known for how many years he was suffering from diabetes. Therefore, he cannot attribute the loss of vision to the surgery performed by the opposite parties. Taking into consideration the facts and circumstances, we are of the view that a sum of Rs.3 lakhs if awarded as compensation, it would meet the ends of justice. In the result the complaint is allowed directing opposite parties 1 and 2 to pay a sum of Rs.3 lakhs together with costs of Rs.5,000/-. Time for compliance four weeks.