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    F.A.No.1210 of 2009 Against C.C.No.212 Of 2005 District Consumer Forum.Ii, Vijayawada

    Decided On, 11 January 2012

    At, Andhra Pradesh State Consumer Disputes Redressal Commission Hyderabad

    By, MR. R. LAKSHMINARASIMHA RAO
    By, HONOURABLE MEMBER & MR. THOTA ASHOK KUMAR
    By, HONOURABLE MEMBER

    For the Appellants : Smt. A. Anasuya, Advocate. For the Respondent : Smt. P. Jyothi, Advocate.



Judgment Text

Oral Order : (As per R.Lakshminarsimha Rao, Member)

1. The opposite parties are the appellants. They have filed the appeal in challenge to the order of the District Forum whereby they were held to have committed medical negligence and were directed to pay an amount of `2,50,000/. towards compensation which includes the medical expenses. The appellants were also directed to pay an amount of `5,000/. towards costs.

2. The facts of the case leading to filing of the appeal as seen from the complaint are that the respondent who was under treatment of Dr.Narendra Babu for her back pain since 8.08.2003 consulted the second appellant on 13.05.2004 at the first appellant hospital. After examining the respondent and having gone through reports and prescriptions of Dr.Narendra Babu, the second appellant informed the respondent that surgery is immediately required to be performed upon the respondent else her limbs would be paralysed. On the same day at 11 a.m. the respondent was admitted to the first appellant hospital and after due payments were made, certain tests were conducted on 17.05.2004 and the respondent’s spine was operated upon. The anesthetist and the second appellant informed the respondent’s husband that she would recover soon. The respondent was discharged on 26.05.2004. The second appellant prescribed medicines and advised for spinal exercise. The pain has not subsided. The respondent began to suffer from fever. The respondent’s husband consulted the second appellant on 1.06.2004, 11.06.2004,17.06.2004, 23.06.2004.

3. The respondent was admitted to the first appellant hospital on 14.07.2004, with symptoms of regular fever, dehydration, loss of appetite and general weakness. The second appellant had put the respondent on I.V.fluids and got certain tests conducted. The respondent’s husband informed the second appellant on 19.07.2004 that their daughter suffered from spinal TB, the second appellant handed over, a bony piece removed when surgery was conducted upon the spine of the respondent, to the respondent’s husband with an advice for biopsy to be done at Amba Diagnostics. The respondent was suffering from unbearable pain. The second appellant called in Dr.Radhika Reddy who after examining the respondent discussed the matter with the second appellant who in turn informed the respondent’s husband that she was suffering from mental depression whereby she has been under the impression that she felt pain. The respondent was discharged on 22.07.2004.

4. The respondent consulted the second appellant again on 22.07.2004 with the same intensity of pain and the second appellant advised her to consult psychiatrist and physician and he advised for use of traction. The respondent on the advice of Dr.Meher Prasad, physician, was admitted to Dr.Samaram’s hospital and she was under his treatment. As per the advice of the second appellant, traction was applied and at the time the respondent developed swelling on her spine with pain, burning sensation, discomfort and gnawing pain form waist downwards. The dermatologist, Dr.Deeksha prescribed medicine for the scaly appearance of the skin due to prolonged bedridden condition. The respondent was discharged on 30.09.2004 with suggestion to go back to neurosurgeon as the treatment administered was to bring the fever under control. On 9.10.2004 the second appellant pierced the swelling with needle and informed the respondent that there was no pus and the swelling developed due to sand bag traction.

5. The second appellant questioned the respondent’s husband on 20.10.2004 as to why the respondent was not taken to Dr.Radhika Reddy and advised him to admit her in the psychiatrist’s clinic and that he should not come to him without consulting the psychiatrist as also if they cannot afford treatment in the psychiatrist’s clinic, he would advise the psychiatrist to refer the respondent to a government psychiatric hospital. With no change in her condition the respondent again approached the second appellant on 12.12.2004 at the first appellant hospital where the blood test was conducted and the second appellant prescribed medicines and as there was no relief from pain, the respondent again approached the second appellant on 4.01.2005 whereon the second appellant refused to administer treatment stating that until they approach the psychiatrist for treatment for mental depression, he would not continue treatment.

6. On 14.01.2005 the respondent consulted the physician Dr.Radha Krishna Murthy who diagnosed her with ‘cold abscesses caused due to tuberculosis of spine. Dr.Shankar Rao drained the puss out. The respondent got some relief after the puss was drained out. Dr. Shankar Rao referred the respondent to NIMS, Hyderabad on 20.1.2005 and before proceeding to NIMS, the respondent’s husband sought for the cause and the second appellant refused to show any cause for the patient’s condition. At NIMS, the respondent was diagnosed with tuberculosis of spine and she is still undergoing treatment.

7. The second appellant’s haste in performing the surgery without conducting the relevant tests and his subsequent inability and failure to diagnose the cause of persistent and increasing pain for a prolonged period of nine months and his brushing aside the pain felt by the respondent constitutes deficiency in service on the part of the appellants. The respondent sought for direction to the appellants to pay an amount of `3,00,000/- towards the medical expenditure, `5,00,000/- towards compensation for pain and suffering and `20,000/- towards costs.

8. The second appellant resisted the case contending that the respondent had undergone treatment with Dr.P.Nagendra Babu from 8.08.2003 to 12.05.2004 and approached the appellants on 13.05.2004 with complaints of low backache, both legs sciatica (nervous pain). She was suffering with long standing low backache pain for years, she was not improving from medical treatment taken elsewhere till then. The clinical examination findings by the second appellant are that SLR 60 ‘o’ (L) to 60’o’ (R) , (L) EHL 4/5, (L) AJO and the X-ray findings has shown abnormality in the form of abnormal movement at L4 and L5. The MRI has shown that there was nerve root compression ,'LISTHESIS' at L4 and L5. The second appellant advised the respondent for surgery.

9. The respondent was admitted to the first appellant hospital after her being explained of the clinical examination findings by the second appellant. The respondent has undergone surgery whereof L4 and L5 laminectomy was done followed by total removal of L4.L5. L5.S1 of prolapsed discs were done and as the Listhesis was fixed and confirmed during surgery, fusion was not done. Operation procedure was successful and the respondent was given ICU care. The post operative wound healed well. The respondent was discharged on 26.05.2004 from the appellant hospital. There was no haste on the part of the second appellant in performing the surgery. After thorough clinical examination and MRI evaluation by the second appellant, the respondent was advised for surgery as the benefit was on higher side for the respondent to undergo surgery.

10. The respondent’s husband did not visit the appellants on 11.06.2005, 17.06.2005 and 23.06.2005. The respondent was admitted to the first appellant hospital on 1407.2004 with the complaints of Lower Backache, loss of appetite for two weeks and general weakness. On clinical examination of the respondent, it was found that there was no temperature, B.P. and pulse were normal and no any infection at the operation site. The blood test and liver test reports revealed normal values. X-ray of the lumbar region, i.e., did not reveal any abnormality. The respondent was given medical treatment, psychotherapy and vitamins. On the respondent’s informing the second appellant that his daughter suffered from spinal TB, the second appellant advised for biopsy of the disc material that was removed at the time of operation on 17.05.2004. The report of Amba Diagnostic Centre revealed that there was no spinal TB or KOCH SPINE at the operated site. The respondent was neurologically stable without any complaint that appeared during the preoperative stage. The operative area was well healed and the complaint appeared psychiatric warranting consultation of psychiatrist. The psychiatrist opined that the respondent was suffering from mental depression. On 22.07.2004 the respondent was discharged in comfortable and fit general condition.

11. The second appellant has not advised the respondent to consult Dr.Meher Prasad and Dr.Deeksha. On 9.10.2004 the respondent approached the second appellant. The swelling at the spine was no way related to the surgery. Needling done revealed no abnormality. The second appellant prescribed medicines for her complaint and advised for treatment under Dr.Rahika Reddy. The second appellant has not told the respondent that the swelling was due to the traction. On 12.12.2004 after a lapse of seven months of surgery, the respondent approached the second appellant and on clinical examination of the patient, the second appellant found no complaints that existed during preoperative stage except the psychiatric complaints. The second appellant has not refused to continue the treatment.

12. The spot is no way related to surgery or operated area of the respondent. The diagnosis as ‘cold abscess’ is non pyogenic and not a post operative complication. TB Spine abscess is per se not a post operative complication and it is prone to develop at any time and in patients under malnutrition. The second appellant is a person of committed treatment and professor of fifteen years experience and a post graduate from AIIMS, New Delhi. He operated thousands of patients successfully and known for honesty, commitment and integrity. The diagnosis of TB of spine does not relate to either to the operated area or to the surgery conducted by the second appellant. The respondent has no agonizing neurological problems after the surgery was conducted by the second appellant. The second appellant has not charged `36,000/. towards inpatient expenditure from the respondent. There was no post operative complications. There was no deficiency in service on the part of the appellants.

13. On behalf of the respondent she was examined as pW1 and her husband as PW2 and Dr.G.Megharoop and Dr.Ch.Bangaru Rao, Dr.Rama Devi and Dr.N.Satyanarayana examined as PWs3 to 6. Exs.A1 to A60 have been marked. On behalf of the opposite parties, the second appellant was examined as RW1 and Smt B.Radhika Reddy as RW2. Ex.B1 was marked.

14. The District Forum has allowed the complaint on the premise that the second appellant did not follow the standard procedure prescribed for the treatment of a patient like the respondent and he did not subject her to Montaux test. The District forum has opined that the second appellant failed to advise for proper and necessary tests.

14. (a) The counsel for both the parties have filed their respective written arguments.

15. The points for consideration are:

1) Whether there was any deficiency in service on the part of the appellants in administering the treatment to the respondent from the time she was admitted to appellant no.1 hospital till she approached Dr.Radhakrishna murthy?

2) To what relief?

16. POINT NO.1 The respondent was under treatment of Orthopedic Surgeon Dr.Narendra Babu before she approached the appellants. The respondent was under the treatment of Dr.Narendra Babu from 7.8.2003 to 12.5.2004. The respondent approached the first appellant hospital on 8.8.2003 and she consulted the second appellant at the first appellant’s hospital. The second appellant advised for investigation such as X-ray, LS spine, on 8.8.2003.

17. The learned counsel for the appellants has submitted that i) the appellant no.2 diagnosed the pain of the respondent as nerve compression basing on his clinical observation and that of Dr.Narendra Babu who previously treated the respondent as also on the reports. ii) the respondent has not proved that she was suffering from spinal TB as on the date of operation, iii) after the operation the respondent had no high temperature, No high Blood Pressure and no infection at the operation site which would have been present had she suffered from TB at the time, iv)the respondent did not produce the X-rays and the reports before the District Forum, v) the X-ray had not shown any abnormality or TB in the respondent, vi) as the nerve root compression started in 2003, there is no necessity for fresh MRI and put the respondent to monetary loss, vii) Dr.sahu who actually attended the respondents in NIMS was not examined though he came to the District Forum viii) there are discrepancies between the two discharge summaries filed by the complainant and the opposite parties

18. The learned counsel for the respondent has contended that the second appellant i) is not competent to treat the disease as was suffering the respondent, ii) relied upon MRI report taken 10 months prior to the date of surgery and did not advise for required tests before taking up the operation, iii) unable to diagnose the cause of persistent backache for nine months iv) he had been lagging behind the other ordinary assiduous members of his profession, v) he has made false statement in his reply to the notice issued on behalf of the respondent, vi)inhumanly brushed aside the respondent’s complaint of persistent backache.

19. The learned counsel for the respondent has submitted that the second appellant has conducted the surgery in haste and he was not able to diagnose tuberculosis and that the appellants had administered improper treatment which was prolonged till she has approached the NIMS Hyderabad. The Learned counsel for the respondent submits that the second appellant performed the surgery in haste and it is stated that the second appellant created an impression that surgery was to be performed immediately else the respondent’s limbs would be paralyzed and the respondent would be relieved of pain after the surgery was performed. The learned counsel for the appellants has submitted that the second appellant has taken into consideration of the conservative treatment administered by Dr.Narendra Babu for the period from 7.8.2003 to 12.5.2004 and as there was no relief from pain for the respondent, he came to the conclusion that the line of treatment to be adopted is surgery.

20. The learned counsel for the appellants contend that the surgery was not performed in haste nor was there any incompetence on the part of the second appellant to diagnose the disease as also the treatment was not prolonged as stated by the respondent.

21. The second appellant has stated that he has examined the respondent and having gone through the investigation reports came to the conclusion that surgery was essential to relieve the respondent from the pain. The clinical symptoms were correlated with the reports of the X-ray and MRI. The respondents left foot experienced weakness EHL 4/5 and there was no ankle jerk as it was absent.

22. The X-ray and MRI reports revealed that the respondent was suffering from L.4 and L.5 and L5.S1 prolapsed discs and L4 and L5 Listhesis and incidental hemangioma at D12. Therefore, the line of treatment adopted by the second appellant cannot be found fault with.

23. The learned counsel for the appellants relied upon the medical literature on surgical management and the necessity of the surgery in the case of a patient suffering from backache and kept on conservative treatment for over a period of six months. The medical literature shows that surgery is effective for relief of pain in patients with degenerative spondylolisthesis with spinal stenosis. James N.Weinstein, DO, MS has opined 'Surgery is widely used and has recently been shown to be more effective than nonoperative treatment when the results were followed over two years. Questions remain regarding the long.term effects of surgical treatment compared with those of nonoperative treatment'.

24. Spondylolisthesis is described as ' a spinal condition that involves the slipping of one spinal vertebra over the one immediately underneath it'... The spine is made up of a series of interconnecting bones called vertebrae. The vertebral column is the main support structure for the body and keeps it upright and balanced. The spinal column consists of 33 bones and is divided into 7 cervical vertebrae which form the upper part of the spine between the skull and the chest, 12 thoracic vertebrae which are found between the upper chest and lower back, 5 lumbar vertebrae which form the lower back, 5 vertebrae fused together form the sacrum and 4 fused vertebrae from the coccyx.

25. According to the author, the Spondylolisthesis can be caused by various conditions and the symptoms are basically similar and include 1. lower back pain, 2. Stiffness in the back, 3. localized pain or tenderness in the back just above the pelvis, 4. Tight hamstrings, 5. Pain in the thighs and legs (radiculopathy) and 6. pain in the buttocks.

26. The learned counsel for the appellants relied upon the information on website http;//www.medscape.com to contend that surgery was right and proper choice for a patient like the respondent who did not feel any change in her condition despite undergoing conservative treatment for a period of nine months. It was reported in the Journal of Bone & Joint Surgery(American Volume) as

27. ' Surgery may be effective for pain relief in patients with degenerative spondilolisthesis with spinal stenosis' ' Compared with patients who are treated non.operatively, patients in whom degenerative spondilolisthesis and associated spinal stenosis are treated surgically maintain substantially greater pain relief and improvement in function for four years'. 'The more traditional approaches to the treatment of spondilolisthesis have included posterior surgery, anterior surgery, or combined anterior, posterior referred to as subluxation or in situ treatment of the disorder. There are an assortment of methods that are acceptable for the treatment of spondylolysthesis , which may vary based on the age of the patient, the type of abnormality, and the experience and comfort of the treating surgeon'.

28. The learned counsel for the appellants contends that the surgery was essential in view of the respondent’s condition. The learned counsel for the respondent challenged the competence of the second appellant on the premise that he failed to diagnose the TB the respondent was diagnosed with at NIMS. The Hon’ble Supreme Court in several decisions dealt with the situation what the doctor is required to do and what he is expected to do in the given circumstances of the case.

29. In Achutrao Haribhau Khodwa & Others v. State of Maharashtra & Others (1996) 2 SCC 634, the Supreme Court noticed that in the very nature of medical profession, skills differ from doctor to doctor and negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.

30. The Supreme Court in Kusum Sharma Vs. Batra Hospital & Medical Research Centre reported in (2010) 3 SCC 480 after considering the entire case law on medical negligence observed :

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.

31. In the aforementioned decision, the Apex Court framed the following principles while deciding whether the medical professional is guilty of medical negligence,

I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.

II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.

III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.

IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.

VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.

VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.

32. The appellants established that there was no deviation from the standard medical practice in choosing the surgery as the proper procedure as the respondent did not respond to conservative treatment during the period from 7.08.2003 to 12.05.2004 during which period she had been under the treatment of doctor Narendra Babu. There is no deficiency in service on the part of the appellants in regard to the performing of surgery upon the respondent. Infact, there is no dispute relating to the manner in which the operation was conducted or in regard to the care taken and skill exercised by the second appellant during the operative stage.

33. The Supreme Court held that the line of treatment adopted by a doctor cannot be ordinarily found fault with in the absence of an equally competent medical practitioner’s evidence to the effect that the doctor has deviated from the standard procedure adopted by a doctor of ordinary diligence. In C.P.Sreekumar M.S (Ortho) vs S.Ramanujam in CIVIL APPEAL NO.6168 OF 2008 decided on 1 May, 2009

‘It is also relevant that though the respondent had sought the opinion of Dr. Ajit Yadav of the Tamil Nadu Hospitals on 30th May 1992, he produced no evidence to off.set the appellant's evidence as to why he had chosen hemiarthroplasty over internal fixation. It is qually significant that the respondent had taken the advice of several renowned doctors including Dr. Mohan Das and Dr. Nand Kumar, but none of them in their treatment notes observed adversely about the choice of treatment nor any negligence in the actual operation. In the light of the fact that there is some divergence of opinion as to the proper procedure to be adopted, it cannot be said with certainty that the appellant, Dr. Sreekumar was grossly remiss in going in for hemiarthroplasty. In Jacob Mathew case (supra) it has observed as under:

(2) Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed';

21. It would, thus, be seen that the appellant's decision in choosing hemiarthroplasty with respect to a patient of 42 years of age was not so palpably erroneous or unacceptable as to dub it as a case of professional negligence‘

34. The learned counsel for the respondent has submitted that the second appellant failed to diagnose spinal TB of the respondent and he did not send the vertebral disc piece for biopsy soon after it was removed whereas the learned counsel for the appellants submitted that the respondent’s husband did not inform the second appellant prior to or at the time of performing surgery about their daughter suffering from spinal TB and when he informed him on 19.7.2004, immediately he had sent the disc piece for biopsy to Amba Diagnostic Centre. It is true, the second appellant did not send the disc piece immediately after he had performed the surgery and he or the first appellant hospital has not adduced any cause for not sending the disc piece for biopsy immediately after the surgery was performed. It is contended on behalf of the appellants that there was no circumstance warranting the appellants to send the piece of the disc material for biopsy since the X-ray did not show any abnormality.

35. The learned counsel for the respondent has submitted that the second appellant performed the surgery by relying completely on the prescriptions and report of the previous doctors. She submits that the LS Spine X-ray was not taken in the first appellant hospital and so is the MRI and that the appellants have not produced any document to prove that X-ray of the LS Spine was taken at the appellant no.1 hospital. The contention of the learned counsel for the respondent is that the second appellant relied upon the MRI report which was much prior to the date of operation and just before the operation no MRI was taken. The learned counsel for the appellants submits that there was no necessity to go for fresh MRI as the findings of the MRI report earlier taken in the month of August 2003 would show that there was Listhesis at LS.S1 and as the respondent did not respond to the conservative medicine, surgery was the only option left.

36. As against the submission of the learned counsel for the appellants that no fresh MRI was required for the purpose of coming to the conclusion that surgery could be proceeded basing on the MRI taken earlier, the learned counsel for the respondent contends that the X-ray taken at the appellant no.1 hospital shows Listhesis at two levels and as such the appellants ought to have advised for a fresh MRI to confirm the findings of the X-ray. The learned counsel for the respondent has attempted to project two contradictory views of the same fact. On one hand she submits that no X-ray was taken (page 2 and 3 of the written arguments) at the appellant no.1 hospital and on the other hand she contends that the latest X-ray had shown listhesis at two levels and in that view of the matter, the appellant no.2 ought to have advised for fresh MRI.

37. The second appellant is a senior surgeon. He came to the conclusion that the respondent developed Listhesis at LS.S1 and basing on the MRI taken in the month of August 2003, he has decided to perform the surgery upon the spinal cord of the respondent. It is not the case of the respondent that the Listhesis developed at two levels and it required surgery at both the levels of the spinal cord. Even in the NIMS medical reports there is no mention of Listhesis developing at two levels. In the MRI, if there is nerve root compression and disk prolapse is vigilant, the Neuro Surgeon has to follow the clinical observation if the clinical observation is co.relating with the MRI report, there is no need of taking another MRI. Thus in the absence of evidence, it cannot be concluded whether or not fresh MRI was a necessity before proceeding with the surgery at appellant no.1 hospital.

38. The learned counsel for the respondent has contended that the MRI report had shown D12 vertebral body with hyper intense signal on T1 and T2 WI s/o Haemangioma. The radiologist opined that the values of the MRI conclude the problem as haemangioma. The learned counsel for the appellant submitted that the MRI had shown haemangioma and not tuberculosis. In counter to the contention of the learned counsel for the respondent that when the ESR had shown elevated value and the blood picture had given the result with low hemoglobin count, it should have prompted the second appellant to go for further tests, the learned counsel for the appellants contend that ESR is only a screening test which can be used to monitor inflammatory diseases or cancer and it cannot be used to diagnose a specific disorder. The medical literature submitted by both the counsel is relevant to be considered here.

39. Medline Plus describes the ESR as 'a test that indirectly measures how much inflammation is in the body. Once a diagnose has been made this test may be used to monitor whether the illness is becoming more active or flaring up'. ESR is useful for detecting and monitoring for 1.the Autoimmune disorder, 2. Certain forms of arthritis, 3. the Inflammatory diseases that cause vague symptoms, 4. The tissue death. 5. Tuberculosis.

40. Hemangioma is one of the most common benign tumors of the vertebral column. Schmorl (1959) found an incidence of 10.7 percent of angiomas out of 3829 spinal columns examined, the most common area being from D12 to L4. Most of these cases are asymptomatic and are diagnosed by chance on radiological examinations for other complaints.

41. The learned counsel for the respondent contends that the second appellant though a specialist was lagging behind the other doctors in possessing the knowledge and information and he depended upon the knowledge of the radiologist without coming to an independent opinion to state that there was no infection at D12 level at the time the surgery was performed upon the respondent. The learned counsel contends that the blood report showing low hemoglobin count and elevated ESR as also the MRI disclose that tuberculosis of the spine was present even at the time when the MRI was taken on 8.8.2003. If that be the position, Dr.Narendra Babu who treated the respondent at the time has to be made party to the proceedings.

42. In the websitehttp://ww.emro.who.int/publications/emhj/0401/23.htm describes characterstics of MRI appearance of vertebral haemangioma as 'hyperintense region in the vertebral body on T1W and T2W images because of the fatty matrix. The matrix shows hypointense areas due to bony trabeculation or vascular channels. Vertebral haemangiomas alywas have a relation to the course of the basivertebral vessels and their anastomosis with intraspinal and par spinal vessels. Haemangionas may be discrete and well defined or diffuse and ill defined. They may be single or multiple. A haemangioma may involve the whole vertebral body. Most vertebral haemangios are located in the vertebral body, some lesions involve only part of the vertebral body whereas others affect the entire medulary space isolated haemangiomas in the neural arch are rare, but 10%.15% of vertebral haemangioms have concomitant involvement of the posterior elements. They differ from discogenice degenerative changes in location. …The MRI appearances of vertebral haemangiomas are pathognomonic and because they are so common we can consider them as normal variations in the vertebral bodies. Haemangiomas in the spine increase with age. There could be an aging process and if so, the term maemangiomatosis is preferable to haemangiomas. Haemangiomas occurring in other parts of the body tend to be congenital where they appear in young people. Haemangiomas in the liver show the same radiological and clinical behavior as those of the spine.

43. The Monteux test would disclose positive reaction in a patient with tuberculosis disease of some standing and a negative test rules out the disease.

44. The haemangioma is a common benign tumour of the vertebral column. The second appellant has performed the surgery upon the respondent on 17.5.2004. Vertebral disc part was removed during the surgery and the second appellant has not sent the piece for biopsy till after her discharge the respondent readmitted to the first appellant hospital and her husband informed the second appellant that his daughter suffered from spinal tuberculosis. The learned counsel for the appellants contend that as there was no circumstances existing at the time of conducting the operation to suspect that the patient was suffering from tuberculosis, the second appellant has not taken steps for sending the removed piece of disc for biopsy.

45. It is pertinent to note that the appellants had preserved the piece that were removed from the vertebral column of the respondent and they had not given it to the respondent or her husband immediately after the surgery was completed. The appellants had been negligent in exercising due care so as to remove the possibility of if not tuberculosis, any malignancy at the operation site in the vertebral column of the respondent. The negligence on the part of the appellants in not sending the disc piece for biopsy immediately after it was removed at the time of surgery has to be considered with their negligence attributed by the respondent in other aspects during the course of her treatment at the first appellant hospital. This aspect of negligence on the part of the appellants has to be considered in the backdrop of the fact whether the appellants had shown medical negligence in regard to the allegation of the respondent that they failed to diagnose on proper lines, of the tuberculosis which attacked the spinal cord of the respondent.

46. The respondent was discharged on 26.5.2004 and as the pain has not subsided, she was again admitted to the appellant no.1 hospital on 14.7.2004 with the symptoms of regular fever dehydrating, loss of appetite and general weakness. The husband of the respondent informed the second appellant that their daughter suffers from spinal TB and on being informed the tuberculosis attacking their daughter, the second appellant had given the vertebral piece to the respondent’s husband and advised for biopsy at Amba Diagnostics. The appellant referred the respondent to psychiatrist Dr.Radhika Reddy despite the respondent complaining of pain. The second appellant and Dr.Radhika Reddy came to the conclusion that the respondent was under the impression that she was suffering from pain and she was discharged from the first appellant hospital. Again she was admitted to the first appellant hospital with same complaint of pain. The second appellant prescribed anti depressants and she was discharged on 22.7.2004. She was again admitted on 19.8.2004 and the same anti depressants and anti convlusants were prescribed besides lumbar traction.

47. The respondent consulted the second appellant on 19.08.2004 who prescribed the same anti.depressant and anti.convulsant treatment and advised and advised to consult the physician for controle of the fever and also the psychiatrist. He has admitted in his cross examination that he advised for lumbar traction when there was significant pain which was not relieved with analgesics. The learned counsel for the respondent questions the propriety of advising the respondent to use lumbar traction when she was suffering with low back pain which was not relieved by surgery, analgesics etc.,

48. On 7.09.2004 the respondent was taken to Dr.Mehar Prasad who is a physician and treated the respondent by controlling the fever. She was discharged on 30.09.2004 from the hospital with an advice to consult the neurosurgeon in regard to the treatment for the swelling she developed during the stay in the said hospital. When the respondent was brought back to the first appellant hospital on 14.11.2004, with the complaint of low back pain, after conducting tests the second appellant noted in ExA11 the central nervous system as 'no abnormality detected' whereas in the Discharge summary it is mentioned that the patient suffered from neurological problems like right facial palsyl,UMNL, Radiculopathy. As seen from ExA15 the respondent was unable to walk without support at the time she was discharged on 22.07.2004.The counsel for the respondent submits that instead of doing needling , the second appellant ought to have done FNAC and sent for examination which would have revealed the presence of TB in the respondent’s spine.

49. In 'Tuberculosis of the Skeletal System' by S.M.Tuli, at page number 35 the importance of ‘biopsy’ is stated as ' whenever there is doubt(particularly in early stages) it is mandatory to prove the diagnosis by obtaining the diseased tissue(granulations and /or Synovium and/or bone and/or lymph nodes).Microscopic examination of aspiration cytology)core biopsy, needle biopsy or open biopsy would reveal typical tubercles in untreated cases of shorter duration of disease...'

50. The counsel for the respondent submits that the second appellant not suspecting or entertaining any doubt about the presence of the TB in the spinal cord of the respondent by itself is negligence on the part of the doctor whereas the counsel for the appellants contends that the second appellant immediately after his being informed of the family history of TB of the respondent, sent the vertebral piece that was removed at the time of operation and the biopsy report did not reveal the respondent suffering from Tuberculosis. The counsel for the respondent contended that the second appellant knowingly that the report would be negative in view of X-ray result dated 15.07.2004 being negative, had sent the disc piece that was removed two months ago when the surgery was performed. She challenges the validity of sending the disc piece instead of evaluating the status of the respondent as on that day.

51. PW3, G.Maru has deposed that the respondent was suffering from fever and skin problem and that Dr.Meher Prasad administered treatment to her, in his hospital as also blood was transfused to the respondent. He has stated that he referred the patient to an expert as his hospital was not equipped with specialist i.e., neurologist.

52 PW4, Ch.Bangaru Rao, has deposed that he treated the respondent however, there was no evidence to prove his administering treatment to the respondent. He has admitted in his cross examination that he did not issue any referral letter.

53. PW5, A.Ramadevi has stated that Dr.Narendra Babu is no more and she has given report that the respondent was diagnosed with haemengioma. She has deposed that haemangioma is not tuberculosis. She has stated that all infectiosn are not tubercolsis and biopsy confirm whether a patient suffers from TB or not. According to her the problem arose due to compression of intervertabral disc on the nerve and canal narrowing. She has deposed that she cannot say the exact period during which tubercolosis can be reflected in the MRI.

54. The second appellant in his cross examination has stated that he did not get any other tests except sending the disc piece for biopsy. The respondent’s husband in his cross examination admitted that the pathologist did not say that the sample was not properly preserved nor did he express that the disc piece was unfit to be tested. The learned counsel for the appellants contended that the respondent has not produced the X-ray film taken at the appellant no.1 hospital and the MRI taken at the NIMS in order to suppress the fact that there was no negligence on the part of the appellants in the matter of administration of treatment to the respondent.

55. The second appellant did not advise for fresh MRI before coming to the conclusion that Listhesis was confined to L4.L5,L5.S1. Whether the MRI taken at Soumya Hospitals, Vijayawada while the respondent was undergoing treatment therein can be made basis for coming to conclusion to know the latest condition of the respondent as on the date of her undergoing surgery at the first appellant hospital is a question not answered by the respondent in order to attribute negligence to the second appellant and equally the appellants had not answered the question by adducing evidence. The witnesses examined on the side of the respondent did not state as to the importance of the MRI when the X-ray has shown no abnormality.

56. Though X-ray taken just before the surgery was performed did not reveal any abnormality, the general impression among the patients which need be confirmed by doctor is that fresh MRI is always advisable in the light of the patient’s continuous suffering persistent lower back pain. S.M.Tuli is of the opinion that 'MRI has been found to be extremely useful in the diagnosis of tuberculosis infection of difficult and rare sites like cranio.vertebral region, cervico.dorsal regions, disease of the posterior elements and vertebral appendages and infections of the sacroiliac region'. According to him, the infection whether T.B or any other disease can occur in any part of the body and it causes certain physiological changes in the tissue and sometimes the radiologist might read prevertebral hematoma as haemangioma. The neurosurgeon who attended the respondent at NIMS or Dr.Radhakrishna Murthy, Dr.Shanker Rao who subsequently treated the respondent and referred her to NIMS are to be examined in order to know whether the MRI taken 9 months prior to the date of surgery can be relied upon in the back drop of the findings of the X-ray not showing any abnormality.

57. The second appellant referred the respondent to the psychiatrist. His decision cannot be found fault with. The respondent has nowhere stated that she was unnecessarily referred to the psychiatrist.

58. The line of treatment adopted by the second appellant cannot be found fault with. His decision to perform surgery when there was no response to the conservative treatment and the uneventful surgery do not give any scope for alleging negligence. Even the second appellant’s failure to recognize the low HB and elevated ESR would not constitute deficiency in service as it would amount only to an error of judgment. What the respondent claims is the lack of diligence and skill in the administration of the treatment in detecting the spinal TB of the respondent.

59. The learned counsel for the appellants relied upon the following decisions:

1.Saeleemuddin vs Sunil Malhotra 2006CPJ.2. 348.

2.Ramesh Chandra Agarwal vs Regency Hospital Ltd and others 2009(7)SCJ 748.

3.Kusum Sharma and others vs Batra Hospital & Medical Research Centre and others 2010(3)SCJ 349.

60. In Saleemuddin’s case, the patient had a tumour in his right axilla with supra clavicular lymph modula for which FNAC of axillary lymph nodes was carried out and he was advised biopsy to ascertain the nature of lump. The complaint was filed alleging that instead of conducting biopsy , sugery was performed upon the patient. The National Commission dismissed the appeal confirming the order of the State Commission which did not find any medical negligence on the part of the doctor.

61. Ramesh Chandra’s was a case where the Hon’ble Supreme Court held that an expert is not a witness of fact and his evidence is of an advisory character as also that the expert has to furnish necessary scientific criteria for testing the accuracy of his conclusion. The complainant suffering from physical ailments such as backache and difficulty in walking as a result of progressive weakness of both his lower limbs was, on the basis of C.T.Scan, diagnosed as a patient of ‘Dorsal Cord Compression D4.D6 Pott’s spine’ which spread till his vertebrae. Laminctomy was done and after the operation the patient’s condition deteroriated further whereon MRI was suggested which revealed the problem aggrevated and there was need for another operation. The second operation did not bring any change and only the third operation conducted at Vidyasagar Institute of Medical Health and Neurological Sciences, New Delhi provided the patient some relief but let him handicapped due to his legs being rendered useless and loss of control over his bladder movement.

62. The complainant filed the complaint before the National Commission stating that Laminectomy ought not to have been performed and Antereo.Lateral Decopression should have been conducted and that there was no requirement for immediate surgery as also the opposite party who was a Neurosurgeon did not consult Orthopedic Surgeon even though he was not capable to handle the case of the complainant without consulting the Orthopedic Surgeon.

63. The National Commission dismissed the complaint holding that there was no medical negligence on the part of the doctor who conducted the operation. The complainant filed appeal before the Supreme Court contending that the Registry of the National Commission did not send all the records submitted by him to the Neurologist. The Supreme Court held that diagnosis and method of treatment suggested to a patient of Pott’s disease vary. It was held that ' the nature of the disease such that there exist difference in the identification of the symptoms and also the protocol of treatment to cure the disease. Therefore, an expert opinion forms an important role in arriving at conclusion'.

64. The learned counsel for the respondent has relied upon the following decisions:

1.Vidya Devi(deceased) through L.Rs vs Dr.Mehrindu II(2008)CPJ 232(NC).

2. G.Balakrishna Pai & Anr. Vs. Sree narayana Medical Mission General Hospital and TB Clinic and others II (2008) CPJ 93 NC

3. K.N.Koteshwara Bhatta Vs Kasturb

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a Hospital I (2007) CPJ 258 (NC) 65. In the Vidya Devi’s case supra the National Commission held that the doctor can be found deficient in service for not following usual and normal practice of conducting minimum tests before zeroing on diagnoses. It was held that '……further, while running a medical clinic he has been found to be deficient with regard to the maintenance of proper records as we cannot be belive that the case sheet of the patient and other records were all handed over to the widow of the deceased and that no office record at all was available with him'. 66. G.Balakrishna Pai’s a case where the national Commission held that it has to be considered that a man on the street is bitted against an expert and it depends upon the doctor’s special knowledge about the medicine they administered. They are supposed to maintain accurate record of treatment as well medicines administered'. 67. In Koteshwara Bhatta’s case the National Commission relied on the decisions of the Hon’ble Supreme Court in Jacob Mathew Vs State of Punjab to hold that a medical practitioner should commend the corpus of knowledge which forms part of the professional equipment of ordinary member of his profession. 68. The learned counsel for the appellants contended that the respondent has not examined any doctors from the NIMS to show that the second appellant had opted for a wrong line of treatment. It is true the superintendent examined as PW5 is the administrative superintendent and he deposed that he is on the administration side as also he has no knowledge of the treatment administered to the respondent at NIMS. Doctor Sahu accompanied him to the District Forum and did not choose to enter witness box despite the repeated notices and reminders from the District Forum. The learned counsel for the appellants has submitted that in absence of any doctor (who treated the respondent at NIMS) examined as witness, the respondent cannot allege any negligence on the part of the appellants. Dr.Sahu was stubborn and hell bent in not coming to the District Forum to give evidence. The respondent has filed application before the District Forum to direct Dr.Sahu to file affidavit or give answers to the interrogatories . The District Forum dismissed the application on the premise that it would summon the doctor rather direct him to file affidavit. 69. The learned counsel for the respondent has submitted that the whole case of the respondent is about not conducting the relevant and sufficient tests diagnosis part of the treatment. Therefore, it is not necessary for the respondent to examine the doctors from NIMS. 70. Dr.Sahu addressed letter dated 13.4.2007 stating that he is not able to attend the District Forum in view of a planned surgery on 30.4.2007 and requested the District Forum to postpone the case to any other date. Thereafter he has addressed letter dated 4.6.2007 that he was suffering from acute Exacerbation of Cervical Spondylotis. The medical Superintendent had sent a telegram dated 21.11.2007 requesting the District Forum to adjourn the matter as Dr.Sahu was not well and not able to give evidence. On 23.2.2008 the medical Superintendent had sent another telegram informing the District Forum that Dr.Sahu was admitted to the Hospital for treatment for chest pain and he would not be able to appear before the District Forum on 25.2.2008. On 25.2.2008 Dr.Sahu had addressed letter stating that he could not appear before the District Forum due to his cervical spondylotis and he has not treated the respondent. He requested to appoint an advocate commissioner to record his evidence. 71. Dr.Sahu had gone on requesting the District Forum to adjourn the case for his giving evidence and eventually expressed his inability to appear before the District Forum on the premise that he was suffering from spondylotis and he had to attend patients at NIMS. His accompanying the medical Superintendent to the District Forum and not giving evidence would throw any amount of light on his recklessness to the dignity of the forum. He had sought time on several occasions to adjourn the case and as a last resort requested for recording of his evidence on commission. In the light of the ratio laid in Ramesh Chandra’s decision (supra), the evidence of Dr.Sahu is essential to prove the case of the respondent since he is neuron surgeon and supervised the treatment to the respondent at NIMS. 72. For the foregoing reasons, we are of the opinion that the respondent be permitted to examine Dr.Radhakrishna Murthy, Dr.Shanker Rao and Dr.Sahu or any other specialists. In the circumstances, we are inclined to remit back the complaint to the District Forum giving liberty to both the parties to adduce evidence. 73. In the result the appeal is allowed by setting aside the order of the District Forum. The complaint is remanded to the District Forum. The parties shall appear and adduce evidence before the District Forum on 27.1.2012. As the matter pertains to the year 2009, the District Forum is directed to dispose of the matter within three months. There shall be no order as to costs.
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