ORAL ORDER: (Per Hon’ble Sri Justice D.Appa Rao, President.)
1) The complainant complains of medical negligence on the part of opposite parties and claims compensation of Rs. 25 lakhs together with costs.
2) The case of the complainant in brief is that she was suffering from back pain for about a month as such she approached Op1 hospital on 28.7.2008. She was referred to Op2 an orthopedic surgeon who after conducting tests advised her to undergo surgery for L2-L3 discectomy. Though initially she was suggested for above said surgery, when she and her husband revealed that there was coverage of insurance for Rs. 4 lakhs on that Op2 advised to take a new treatment of insertion of DIAM for better results. Accordingly she was admitted in the hospital on 2.8.2008 and the surgery was performed on 3.8.2008. Op2 had conducted surgery with the help of Op3 another surgeon. She was discharged on 11.8.2008. Altogether she had paid Rs. 1,94,584/-. For removal of sutures and review she visited the hospital on 14.8.2008. Despite the fact that she underwent operation had been repeatedly visiting the hospital she was suffering from pain and was unable to walk and gradually losing her senses in the operated part causing waisting and other complications. She informed to R2 on 8.9.2008 which he termed as foot drop and advised to use foot drop splint and continue medication. Even then she had severe pain and foot drop. She was referred to Op4 & Op5 who after conducting various tests came to the conclusion that she has developed ‘CP NV Plasy’ . It was mentioned she was having ‘Low left CP CMAP with normal sural and superficial peroneal sensory SNAP suggests left lateral popliteal nerve palsy (Oxonal) at level of knee joint/fibular head.’ She was also referred to Dr. Padmaja, a Dermatologist and advised to undergo ANA, DsDNA and RBS tests. When the pain was unabated and having suspected the treatment giving to her she approached Dr. Vijay Kumar who on perusal of the reports suspected some foul play in regard to treatment given to her. She underwent nerve conduction test at Matoshri Neurosciences Centre wherein it was revealed that she had ‘Proximal Lower Lumbar Root Lesion’ . She was immediately referred to Dr. T.V. Srinivas, Neuro & Spinal surgeon who after examining MRI scan of L.S. spine opined that she was suffering from ‘Impinging left later nerve root at L2- L3 level’. Dr. T. V. Srinivas advised re-surgery to correct the earlier surgery performed by Op2 & Op3. Accordingly L2 Laminectomy + L2 – L3 discoidectomy + DIAM removal surgery was performed on 16.10.2008. After the second surgery the original complaint of L2, L3 was rectified and the damage like foot-drop and waisting caused by 1st surgery was arrested by 2nd surgery without causing any further damage. She was informed that recovery from the damage caused from the 1st surgery would take at-least two years or more and there is no guarantee for recovery. Thus there is clear negligence in performing surgery. The insertion of DIAM was wrong, and it was made only after coming to know that she had insurance coverage. 60% disability was resulted due to negligent operation conducted by Op2 with the assistance of Op3. The other doctors also misguided her by giving wrong reports. All this constitutes negligence on the part of opposite parties, and therefore claimed a compensation of Rs. 25 lakhs towards medical negligence, mental agony etc., together with costs.
3) The opposite parties resisted the case. While admitting that the complainant had approached with low back pain on 30.7.2008 it was diagnosed by Op2 that she was suffering from prolapsed intervertebral disc L2- L3 with low deep tendon reflexes and low extensor hallusis longus of left foot. He informed the condition, and that he suggested lumbar discectomy at L2-L3 level. The symptoms exhibited by the complainant strongly suggestive of Cauda Equina Syndrome (CES) which is a serious neurological condition in which there is acute loss of function of neurological elements, nerve roots of the spinal canal below the termination (conus) of the spinal cord. She also had previous history of left lower limb weakness. Considering the serious condition of the patient she was admitted on 2.8.2008. Surgery was conducted on 3.8.2008. 100% recovery in cauda equine cannot be possible as the patient may exhibit persistent pre-operative weakness in the limb. Op2 had suggested insertion of DIAM which is a dynamic stabilization device and a valid surgical option for patients affected by low back pain due to de-generative disc disease. It is simple, fast, and non-risky procedure. It was a minimal invasive procedure which does not involve neural structures directly. On 14.8.2008 when she came for removal of sutures and review new medicines were prescribed. Since she complained that there was no improvement in the neurological status Op2 advised foot drop splint to prevent contractures in the foot which is a standard practice. The surgery underwent by the complainant had nothing to do with the left lower limb weakness which she had disclosed. Nerve conduction test was also prescribed to look for any other pathological lesion which could have produced weakness in lower limb. The test demonstrated left peroneal neve palsy at the level of knee joint which is not related to concerned spine operation at L2 – L3 level. Thereupon he referred the matter to Dr. Padmaja, Determatalogist to rule out the possibility of Hansens Disease. (Leprosy). The family doctor to whom the patient was referred to was not an expert. He is only a graduate in medicine. The MRI of lower spine advised by Dr. T.V. Srinivas shows L1 lateral nerve root impingement at L2-L3 level which cannot produce foot drop. The surgery was a reversible surgery as it does not eliminate the possibility of major surgical procedure at a future date if so required. The surgery did not turn fatal but the patient developed recurrent disc prolapse which may occur at any time after implant of DIAM as such it cannot be attributed to any negligence or deficiency in service on their part. The allegation that she developed foot drop, waisting etc., due to surgery is false. It is nothing to do with the operation that was conducted at L2-L3 level. In fact the nerves that supply the foot muscles arise from L4-L5 level. It has nothing to do with the surgery that was conducted at L2-L3 level. They never misguided her or her husband. Op2 himself had conducted the surgery with the help of Op3 an expert in spinal surgery. All the tests prescribed were necessary and no un-necessary tests were conducted. The reports of Dr. T.V. Srinivas indicate that there was no negligence on their part. She could not have claimed compensation etc. The allegations are false and frivolous and therefore prayed for dismissal of the complaint with costs.
4) The complainant in proof of her case examined herself as PW1 and examined Dr. T.V. Srinivas, Neuro Surgeon an expert as PW2 and got Exs. A1 to A51 marked. Refuting her evidence Op2 Dr. T. Dasaradha Rami Reddy was examined as RW1, Op3 Dr. G.P.V. Subbaiah as RW2, Op4 Dr. Jaydip Ray Chaudhuri as RW3, Op5 as RW4, Op5 Dr. R. Vital as RW4 and experts Dr. Sanjog K. Mathur, Spinal Surgeon as RW5 and Dr. Bhuvana Raju, Neuro Surgeon as RW6 and got Ex. B1 case sheet marked.
5) The points that arise for consideration are :
I. Whether the foot drop and other complications have arisen due to faulty operation conducted by Op2 & Op3?
II. Whether there was any negligence on the part of Op2 & Op3 in conducting the operation and treatment of the complainant?
III. Whether the complainant is entitled to any compensation, if so to what amount?
IV. To what relief?
6) It is an undisputed fact that Op2 is an orthopedic surgeon Op3 is a spine surgeon, Op4 is a surgeon in neurology and Op5 is a radiologist of Op1 hospital. When the complainant had back pain for about a month she visited Op1 hospital on 28.7.2008 and contacted Op2 surgeon. He prescribed tests likes MRI, LS spine, RA Profile, and DHS etc. evidenced from Exs. A2 to A6. Basing on these reports Op2 recommended L2-L3 discectomy vide Ex. A7. Then she was admitted as in-patient on 2.8.2008. Several pre-operative tests were conducted evidenced under Ex. A10. Originally Op2 had planned to conduct surgery ‘descetomy at L2-L3 level. However, when the complainant and her husband were found to afford better surgery viz., insertion of DIAM, accordingly on 3.8.2008 by implanting DIAM L2-L3 discetomy was done. She was discharged on 11.8.2008 vide discharge summary Ex. A11. The complainant alleges that during treatment and subsequent to discharge she suffered pain and was unable to walk. She was slowly losing her senses in the operated area causing waisting and other complications. When Op2 recommended nerve conduction test and referred to Op4 he had conducted the nerve conduction test on the very same day and reported lesion at the level of knee joint was causing weakness in the foot vide report Ex. A26 dt. 1.10.2008. Another nerve conduction test was done on 10.10.2008 where it was found that she had peroneal nerve plasy at the level of knee joint which is not related to spine operation at L2-L3 level vide report Ex. A30. Evidently when she complained foot drop Op2 had advised foot drop splint to prevent contractures in the foot on 8.9.2008 evidenced under Ex. A24. When the treatment and operation performed by Op2 and Op3 did not go well she consulted her family physician who was of the opinion that foot drop and waisting etc. were post operative complications and therefore he referred her to Dr. T.V. Srinivas ( PW2). Accordingly she was admitted in SKS Neuro Polytrauma Hospital under Dr. T.V. Srinivas with the following history.
Pricking type of pain in left great toe.
Swelling over left ankle
Difficulty in walking
Left foot drop after surgery with PO L2-L3 discectomy
No history of DM/HTN.
On that he performed second surgery on 16.10.2008 for L2 laminectomy plus L2-L3 disectomy and DIAM removal.
7) The complainant alleges that after surgery she was feeling better and the problems were abated. Foot drop, waisting and left lower lumbar weakness she attributes to resultant complications arisen out of first surgery conducted by Op2 & Op3. The complainant did not allege that she had the problem of foot drop prior to operation in her complaint.
8) It is not in dispute that in the pre-authorization form issued by Yashoda hospital the clinical finding prior to surgery is extension or Halusislongus which means foot drop was present even prior to the surgery.
9) It is not in dispute that Ex. A8 pre-authorization form dt. 30.7.2008 she had the following complaints and clinical findings.
Original complaint Clinical findings
Low back pain 1 month SLRT + (Straight leg Raising Test)
(complainant did not complain DTR (Weak drop Tendon Reflexes)
of foot drop at that time) EHL (Weak Extensor Halusis
Though the complainant for the first time alleges that she had developed foot drop after surgery, Ex. A8 demolishes her contention that the problem of foot drop was encountered for the first time after the surgery. The complainant in order to prove that the foot drop and left lower lumbar weakness were developed after first surgery, examined PW2 who performed second surgery. When Ex. A8 was confronted he himself admitted that the clinical findings of weakness of extensor halusis longus mentioned in Ex. A8 means that foot drop was present even prior to first surgery. We may state that even without going into the further evidence it is clear from the evidence of her own witness PW2 expert in the field deposed that left foot drop was present even before the first surgery indicating thereby that foot drop was not the result of any complication arising out of first surgery.
10) RW5 an expert in the field had categorically stated that the complainant had foot drop even before first surgery. At any rate when surgery was performed at L2-L3 level she could not have foot drop. L2-L3 is not associated with it. The muscles that raise the foot upwards are supplied by L5 nerve root that originates in the spinal cord, travels through the spinal canal and emerges at L5 foramen. RW6 another expert when cross-examined categorically stated:
Q: What is the meaning of EHL ↓?
Ans: EHL ↓means extension of hallucies longus this is one of the muscle among the others supplied by the nerve root L5. EHL ↓means it has gone done in the strength many physicians record to specificy the weakness of the muscles.
Q: If the discectomy and DIAM insertion operation is not properly done at L2-L3 level, there is every possibility for the damage of the nerve resulting in foot drop?
Ans: There are 33 vertebral bodies from neck to the lumbar spine. The L5 nerve root comes at L4-L5 inter vertebral valve level. Inserting DIAM at L2-L3 is very high level than L5 nerve root which comes at L4-L5 level. It cannot damage L5 nerve root, which is weak prior to surgery as shown in the records.
Both of them in one voice asserted that there is no possibility of developing foot drop even if operation was not done properly at L2-L3 level while inserting DIAM. L5 nerve root comes out at L4-L5 intervertibral level and that inserting DIAM at L2-L3 level i.e., at very high level than L5 nerve root which comes at L4-L5 level cannot cause damage to L5 nerve root which is weak prior to surgery. This was admitted by no other than her own witness PW2 Dr. T. V. Srinivas.
11) The complainant also alleges that Op2 ought not to have conducted the above operation. Insertion of DIAM is not a good choice when compared to discectomy. It was done only to extract money and no benefit would be derived. When Op2 was cross-examined he categorically stated:
'The weakness of left lower limb was persisting prior to surgery and after surgery is same. It is not true to suggest that in DIAM insertion stretching of the nerves is a known complication which leads to damage to the nerves and consequently results in foot drop. He further stated that the DIAM is inserted outside the spinal canal in between spinous process where there are no nerves'
12) We reiterate that PW2 examined by the complainant, admitted which we reproduce herein as follows:
1) What was the condition of the patient when you have examined her for the first time?
She came with the following complaints.
Pricking type of pain in left great toe.
Swelling over left ankle
Difficulty in walking.
Left foot drop after surgery (within PoL2-L3 disectomy) 3/8/2008.
2) What are the investigations you have done?
We got MRI Ls
3) What are the findings?
a) Status postlectomy at L2-L3 level with graft
b) Posterior disc Osteophyte complex seen impinging adjacent Anterior thecal sac, cauda equine and indenting/impinging left lateral nerve root at L2-L3 level.
c) Hypertrophied ligamentum flavum and facet joint in left side Impinging adjacent impinging adjacent posterior the cal sac and causing neural for narrowing at L2-L3 level.
What was final diagnosis?L2-L3 recurrent disc prolapse with left foot drop.
5. MRI Ls spine report dt. 28.7.2008 is tallying with the findings given in MRI Scan LSS dt. 10.10.2008.
I advised the complainant to undergo surgery for L2 laminectomy plus L2-L3 discectomy and DIAM removal.
13) In fact he did not conduct any nerve conduction test in order to state that foot drop was caused due to first surgery. In fact he did not himself conduct the above test after he performed the second surgery. When her own witness confirm the above facts it cannot be said due to insertion of DIAM while conducting operation at L2-L3 level discectomy resulted in foot drop.
14) The learned counsel for the opposite parties by relied excerpts from medical journals. It is mentioned 'The implantation of a DIAM interspinous spacer is a less invasive and safe method of dynamic stabilization of the spine without intra-or-post operative complications that is well tolerated by the patient. At 3 year follow up the patients reported improvement in their functional state, as measured with an ODI, by 64% on the average. Their axial and nerve root pain was reduced by 71% on the average. All patients showed improved clinical conditions, and the outcomes were evaluated as excellent in 41%, good in 51% and fair in 7.5% of the patients. The results of implantation were not significantly related to age, gender, operative indications, operated lumbosacral level, method of nerve root decompression or duration of pre-operative problems. No patient treated by DIAM spacer had any recurrence of disc hermination.'
15) In another study reported in Device for intervertebral assisted motion; technique and initial results showed when the 'DIAM was implanted in 104 patients between May 1, 2001 and October, 30, 2001 a retrospective evaluation was performed based on chart review and patient questionnaire at a median follow-up of 18.1 months there were no implant migrations, infections or neurological injuries.' Therefore it is clear that insertion of DIAM is a safe and effective method in cases of cauda equine syndrome and does not interfere with the neuro muscular integrity of spinal cord and does not cause any stretching of spinal cord or nerves allegedly leading to foot drop.
16) The learned counsel for the complainant equally relied on excerpts from Wikipedia pertaining to topic ‘foot drop’. It mentioned that ' qualitative power measurement of extensor halluci and Eh Muscle cause pain in the back - health central contended that L5 nerve root (common, especially in association with pain in back, radiating down leg)'. It was further mentioned that the 'source for the neurological impairment can be central (spinal cord or brain) or peripheral (nerves located connecting from the spinal cord to an end-site muscle or sensory receptor). In the column of treatment it was noted :
The underlying disorder must be treated. For example, if a spinal disc hermination in the low back is impinging on the nerve that goes to the leg and causing symptoms of foot drop, then the herniated disc should be treated. If the foot drop is the result of peripheral nerve injury, a window for recovery of 18 months to 2 years is often advised. If it is apparent that no recovery of nerve function takes places, surgical intervention to repair or graft the nerve can be considered, although results from this type of intervention are mixed.'
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e is no mention that if operation is conducted at L2-L3 level by inserting DIAM foot drop will result. When PW2 her own expert categorically ruled out foot drop in case of this operation obviously thinking that said fact was not mentioned in the case sheet at the earliest, and she could file a complaint alleging medical negligence forgetting the fact that the said fact was noted in medical terminology by mentioning 'EHL ↓' 18) When Op2 was examined the complainant could not confront with literature wherein it could be opined that DIAM insertion, stretching of nerves is a known complication which leads to foot drop. RW6 an expert categorically stated that DIAM does not require exposure of spinal cord or nerve root. The DIAM will be inserted without surgical stretching of either spinal cord or nerve root and that DIAM is inserted between spinous processes of vertebral bodies. This opinion has been confirmed by RWs 2 to 6. It is apposite to note that not only the opposite parties but also the exeprts in the field RW5 Dr. Sanjok K. Mathur, Spine Surgeon and RW6 Dr. Bhuvaneswara Raju, Neuro surgeon who has fellowship in spine surgery, functional neuro surgery and radio surgery on perusal of records categorically opined that technique of insertion of DIAM does not require exposure of spinal cord or nerve root. It would not cause foot drop. The complainant could not confront any medial literature or examine witness in order to confirm that due to performance of operation by Op2 and Op3 it was resulted in foot drop and left lower lumbar weakness. 19) To sum up, her complaint that she got foot drop, waisting and left lower lumbar weakness due to negligent operation conducted by Ops 2 & 3 at L2-L3 level with insertion of DIAM was found incorrect. Her own witness PW2 Dr. T. V. Srinivas demolished such a theory. Therefore, we are of the opinion that the complainant could not establish that there was any negligence or deficiency in service on the part of Ops 2 & 3 in this regard. There are no merits in the complaint. 20) In the result the complaint is dismissed. No costs.