IMPORTANT POINT
Duty of the tribunals or courts to protect the bonafide doctors dragged in frivolous litigation.

ORDER

Dr. S. M. Kantikar, Presiding Member

Complaint:

The complainant Mr. Raghavendra Raja Rao (for short ‘the patient’) filed the instant complaint against the opposite parties – Dr.Supriya Gajendragadkar the anesthetist (OP-1), Dr. Santosh Karmakar a surgeon (OP-2) and the Bai Jerbai Wadia Hospital (OP-3). The complainant isaged about 41 years was operated by OP-2 for urinary Bladder Augmentation in the year 2002. Thereafter, in May 2016 patient underwent operation for removal of bladder stone in May 2016. He filed the instant complaint in year 2016 based on new / fresh and continuous cause of action related to medical negligence occurred in year 2002 during the initial operation.

2. The relevant facts are that, the complainant born with the congenital malformation viz Spina Bifida and Meningo-myelocele (MMC). Since birth he was suffering from physical disability with stool and / urinary incontinence. Due to disability, he had problem in walking and he was using crutches. During year 1983 to 1988, he took treatment from various hospitals in Mumbai. At the age of about 25 years, for getting treatment to reduce his disability, in the month of September 2002, he along with his mother approached Dr. Santosh J Karmakar (OP-2) working at Bai Jerbai Wadia Hospital, the OP-3 (for short ‘hospital’). It was alleged that the OP-2, though he was a pediatric surgeon, and knowingly he advised the patient to get admitted in the pediatric hospital (OP-3) which was not for adult patients. On 23.09.2002 the patient was admitted in the hospital and after medical check-up and certain clinical tests he was discharged on 25.09.2002.At the time of discharge patient was informed by OP-2 that Bladder Augmentation with appendi-covesicostomy operation would be beneficial to get relief from urinary incontinence problem. It was alleged that OP-2 conducted MCU test, but did not do ultrasonography because the sonography probe for adults was not available in the children hospital. Even, OP-2 did not advise to get sonography done from outside. The patient and his parents showed un- willingness and requested to get it operated in other hospital having better facilities for adult patients, but the OP-2 insisted and assured the complainant for complete treatment and took special permission from the Superintendent of the said hospital (OP-3). Accordingly, patient got admitted in OP-3 hospital and the operation was conducted on 7.11.2002 under local epidural anaesthesia as well as under general anaesthesia. It was alleged that, OP-2 performed only the bladder augmentation operation but the appendicovesicostomy was not done. According to the Complainant he had sensation up to ankle in both the legs before surgery and same was recorded in pre-anesthetic record. It was alleged that following the surgery, patient felt numbness in his both the legs and thereafter developed loss of sensation below the knee in his both the legs. He was unable to move legs at all. After repeated inquiry with the OPs, the patient came to know that he was examined by the child neurologist, orthopedician and anesthetist. They advised to consult adult neurologist immediately and also advised for M.R.I. and EMG/NCV tests. The patient remained in hospital for 25 days but the treating doctors failed to call the adult neurologist, orthopedic and anesthesia specialists. No MRI or EMG/MCV was performed. At the time of discharge the patient came to know that the OP-2 had performed only Bladder Augmentation operation and the remaining part of the surgery i.e. appendi-covesicostomy was not done at all. On inquiry with OP-2 it was told that the bladder was deep seated, therefore he could not complete the said operation and left the operation midway. According to complainant if the required pre-operative sonography and uro-dynamic studies would have conducted by OP-2, then he could have ascertained the position of the bladder and such mistake could have been avoided or the patient would have avoided surg