Mumbai:Setting aside the District Commission's order, theState Consumer Disputes Redressal Commission, Maharashtra, recently exonerated Grant Medical Foundation's Ruby Hall Clinic and its doctors, accused of negligence while operating on a patient having abrain tumour. Even though the District Consumer Court, Pune, had earlier asked the hospital and the doctors to pay compensation to the family for medical negligence, the State Consumer Court recently observed that the District Commission's findings were "not proper and correct". "The findings arrived at by the Learned District Consumer Commission are not proper and correct. It appears that the Learned District Consumer Commission has not considered the defence of the Opposite Parties in proper perspective and came to an incorrect conclusion, which requires to be set aside,"observed the State Consumer Court while allowing the appeal filed by the Hospital and the doctors. Background: The history of the case goes back to 2003, when the patient was suffering from a persistent headache and consulted Dr. Wadia, a consulting neurologist atRuby Hall Clinic. After examination, an MRI was taken and the report revealed that the focal lesion in the left CP angle cistern extending into the left internal auditory Meatus, consistent with acoustic schwannoma, measuring 25 X 27 mm., and the same was causing brain stem and IV ventricular compression. On the same day, a neurosurgeon, Dr. Bajpayee, examined the complainant and advised surgery. Accordingly, the complainant got admitted to the hospital and various investigations were carried out. Consequently, Dr. Vhora and Dr. Bajpayee performed the complainant's operation for acoustic neuroma. They claimed that 75% tumour was removed by the operation. It was alleged that within two weeks from the date of discharge, the complainant started suffering from side effects, and when she visited the treating hospital, another CT Scan revealed there was a solid mass lesion in the left CP angle cistern measuring 30 X 20 mm, in size. The Complainant was shocked to learn that size of the tumour remained almost the same, even after operation and she developed partial (L) VII (N) Palsy. Therefore, the Complainant was advised second surgery at the earliest. It was submitted that without removing the tumour in earlier surgery, false claim of removal of 75% tumour was made and thereby, she was cheated. Saying that there was deterioration in the health condition, she alleged acute negligence on the part of the hospital and the doctors. Later, the patient received treatment from another doctor at Jaslok Hospital. Later, an EMG for assessment of her facial nerve was done. Accordingly, she came for investigation at Jehangir Hospital in Pune, and the reports of the investigation suggested left facial nerve involvement and partial right nerve involvement. The complainant claimed that due to negligence on the part of the treating doctors at Ruby Hall Clinic, she suffered trauma. She also alleged that she was not given proper treatment, which resulted in her disfiguration and consequential predicament. The surgery was allegedly not performed with due care and caution. Allegations of charging exorbitant fees for an unsuccessful surgery were also made. Accordingly, the complainant filed the consumer complaint and claimed Rs 11,30,910 as compensation from the hospital and the doctors. On the other hand, the hospital and the doctors argued that the treating neurosurgeons carried out a very complicated operation, which lasted for 5.5 hours and all the instruments used in the operation were clinically tested and were modern in nature. It was also contended that before the surgery, the complainant and her husband were informed about the risk factor. Further, it was contended that the operation was successful and the tumour to the extent of 75% was removed but due to the risk factor, removal of the remaining part of surgery was abandoned. Accordingly, the noting was made in the surgical report. It was argued that the tumour was old, large and adherent to the brain stem, and it could not be removed completely. The hospital and the doctors justified their action to avoid a life-threatening situation for the patient. Therefore, the operation was abandoned. They also denied the allegations of exorbitant charges. District Commission's order & further proceedings: After going through the evidence and documents on record, theDistrict Consumer Courtallowed the consumer complaint and directed the hospital and two neurosurgeons, who operated on the patient, to pay Rs 3,20,910 to the complainant jointly and severally within a period of two months. The complaint against the consulting neurologist, Dr. Wadia, and the Radiologist was dismissed. Challenging the District Commission's order, the hospital and the neurosurgeons filed an appeal before the State Consumer Court. They argued that the surgery was abandoned to save the complainant's life. It was contended that there was no negligence on the part of the operating neurosurgeons as they made every effort to save the patient and also removed the tumour to the extent of 75%. It was also argued that there was a cavity after removal of the tumour, which was filled in with 'Surgicel' to stop the haemorrhage. Therefore, the size of the tumor was not seen to be reduced in the subsequent CT scan. It was contended that the tissue of the tumour was shown to the complainant and her husband after the surgery and they themselves had inspected it before it was sent for biopsy. Therefore, the Complainant’s allegation that the tissue was not provided to them or that she was unaware of it is absurd and factually incorrect. Further, the hospital and the neurosurgeons argued that after the surgery, the complainant was advised to return for a reassessment after the initial procedure. This assessment was made under challenging conditions, as the cerebrum was significantly swollen at that time. At most, this could be considered an error of judgment, which does not constitute negligence, as it caused no harm to the patient’s life. It was not a deliberate or reckless act on the part of the surgeon, they submitted. They also submitted that since the surgery had to be repeated again to remove the tumour, the complainant was asked to come back after the surgery for a reassessment. The opinion of the doctor performing surgery that the tumour was removed 75% was an estimation based on visual sight, after the surgery by the concerned surgeon and that too when the entire cerebrum was swollen and at the most be considered as an error of judgment, which does not cause any harm to the life of the patient, and not a deliberate act of negligence on the part of the surgeon performing the surgery, they submitted. Observations by State Consumer Court: After considering the submissions made by both parties, the consumer court observed that"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." "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,"further observed the Commission. On going through the records, the Commission observed that the complainant herself produced on record the medical papers, operation notes, where it was mentioned that as the cerebellar swelling was increased to such an extent that the surgeons had to abandon the surgery, otherwise the (L) cerebellum would have to be sacrificed leading to either death of the patient on the operation table or the patient would have become severely disabled or invalid and she would not have been able to sit or walk independently. "So there was cause for abandonment of surgery. The surgeons have realized the position of the patient during the operation, which lasted for 5½ hours and they abandoned the same,"the State Commission observed at this outset. Further, the consumer court observed that the complainant produced on record the note of the surgeons made after the second operation at Jaslok Hospital, where there was specific mention in the note stating that the complainant was previously operated by the treating doctor at First Hospital, and the note also mentioned that the tumour was partially removed. Further noting that the complainant did not produce any expert opinion, the Commission observed, The State Consumer Court also observed that while the complainant claimed negligence during the surgery at the first hospital, she did not make any submissions stating that she got relief after the second surgery at Jaslok Hospital. After relying on the judicial precedence, the commission discussed the reasons why a tumour can increase or recur even after an operation. It clarified that"Mere abandonment of surgery cannot be called as negligence." Highlighting the lack of expert opinion to substantiate the claims of medical negligence, the consumer court observed, Further going through the records- at the first and second treating hospital, the period for which the patient remained admitted at both the hospitals, and the type of room the complainant availed and held, Holding that the District Consumer Commission erred in passing the order, the State Consumer Court observed,"The Learned District Consumer Commission has simply relied on the version of the complainant and has not considered the plea of the Opposite Parties on the point ofnegligence. The Learned District Consumer Commission has not called upon the complainant to file any expert evidence to prove the negligence on the part of the Opposite Party nos.3 & 4. Similarly, the Learned District Consumer Commission has held that the Opposite Parties have charged exorbitantly to the complainant. But in fact the complainant has paid the charges as per the negotiation and Schedule of Charges of CGHS. The findings arrived at by the Learned District Consumer Commission are not proper and correct." Accordingly, setting aside the order of the District Commission, the State Consumer Court ordered,"The amount of compensation deposited by the Opposite Parties at the time of filing of appeal shall be refunded to them after the appeal period is over. And if any appeal is preferred, then after the decision of appeal." To view the order, click on the link below: https://.in/pdf_upload/scdrc-maharashtra-304996.pdf Also Read: Consumer Court clears Lucknow hospital, doctor of medical negligence in bedsore death case