NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Dr. S.M. Kantikar, Presiding Member and Dinesh Singh, Member
K.M. Shrishti Puri and Anr. – Complainants
versus
All India Institute of Medical Sciences and Ors. – Opp. Parties
Consumer Case No.54 of 2007
Decided on 9.2.2021

IMPORTANT POINT
Medical negligence ruled out where in a case established treatment protocol followed with reasonable duty of care.

Headnote:

Consumer Protection Act, 1986 – Section 21 and 2(1)(g) : [Consumer Protection Act, 2019 – Sections 58 and 2(11)] – Medical Negligence – Determination – Scope – Complainant no. 1-patients was suffering from congenital spinal deformity and therefore underwent surgery – Since one screw was pressing the spinal cord, he underwent re-operation also – Due to alleged medical negligence on part of OP-2 during both the operations, the spinal cord was severely damaged and the patient become paralyzed for the life, with loss of bowel and urinary control – Patient was diagnosed as congenital deformity of spine – Decision to remove aforesaid review was taken forthwith in consultation with the parents of the child and second operation was performed in presence of Neurosurgeon – Methyl prednisolone was given as an established treatment protocol in acute spine cord injury and decongestants were given to prevent CSF leak – Medical negligence is not conclusively established against opposite party no.2 and his team, who have performed spine deformity surgery with reasonable duty of care.

Held: The patient was diagnosed as Congenital Kyphoscoliosis (Spinal deformity) initially consulted Dr. Prasad at Apollo Hospital and thereafter referred to the Opposite Party No. 2 Dr. Jaiswal at AIIMS. The Opposite Party No. 2 specifically ruled out the presence of any spinal cord anomalies with the help of investigations like CT and MRI of the whole spine. Thereafter, the Opposite Party No. 2 advised corrective bony deformity surgery for the patient. In our view it was reasonable and Standard of spinal surgical practice from the doctors at AIIMS.

As discussed supra the Opposite Party No. 2 used the C-arm as the conventional method which is being done at AIIMS. As per the evidence of the Opposite Parties, at the Department of Orthopaedics of AIIMS there are two C arm machines and both the machines were functional on the date of surgery of the patient. Thus we do not accept the Complainant’s allegation that the spinal corrective surgeries were conducted without the help of the C-arm at AIIMS.

From medical literature from the Standard text books on Spinal Surgery it is apparent that any surgical procedure complications are inherent. Moreover, in spinal surgeries, the serious complications are seen due to proximity of nerves and spinal cord to the spine. The corrective surgery for the spinal deformity, involves placement of multiple screws (5-6mm) into the vertebra through a narrow window (pedicle). During surgery after fixing the rod through screws along the side of the affected area, the rod is manipulated to correct the deformity and straighten the spine. It is not uncommon that while putting the rod into a corrective position, at times the screws moves slightly from the original position, which can cause neurological or vascular problem in few patients.

As discussed above, because of the complicity of corrective spinal deformity surgery, the misplacement of the screws is accepted as complication world over. In the instant case as soon as noticing the neurological complication, the CT scan revealed one of the screws penetrating the spinal canal. Therefore, the decision to remove the said screw was taken forthwith in consultation with the parents of the child and the second procedure was carried out without loss of much time in presence of Neurosurgeon. Operatively no Dural injury was found. Therefore it was decided with consultation of Dr. S. S. Kale to place gelfoam surgical over the laceration in the Dura and the wound was closed. Methyl prednisolone was given as an established treatment protocol in acute spine cord injury and decongestants were given to prevent CSF leak. This cannot be construed as a short comings or medical negligence.

The mode of treatment/ skill differ from doctor to doctor and the doctor is not liable for negligence if he performs his duty with reasonableness and with due care. We find the Opposite Party No. 2 and his team performed the spinal correction surgery as per the accepted standards. In this regard we would like to quote the decision of Hon’ble Supreme Court in the case Achutrao Haribhau Khodwa and others versus State of Maharashtra and others, (1996) 2 SCC 634, the Hon’ble Supreme Court held that:

“The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession, and the Court finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence.”

With respect to the duty of care, we would like to rely upon the decision of Hon’ble Supreme Court in the case of Dr. Laxmn B. Joshi vs Dr. Trimbak B Godbole & Anr., AIR 1969 SC 128, which laid down certain duties of doctor that:

(a) Duty of care in deciding whether to undertake the case (b) Duty of care in deciding what treatment to give, and (c) Duty of care in the administration of that treatment. A breach of any of the above duties may give a cause of action for negligence and the patient may on that basis recover damages from his doctor. The doctor owes certain duty towards the patient and the doctor can decide the method of treatment, which is more suitable for the patient. In the instant case we find the treating doctors at AIIMS failed in the duty of care towards the patient.

Based on the forgoing discussion, in the instant case, the medical negligence is not conclusively established against the Opposite Party No. 2 and his team, who have performed the spinal deformity surgery with reasonable duty of care. The Complaint fails. It is dismissed. (Paras 19 to 26)

Result: Complaint dismissed.