IMPORTANT POINT
Medical Negligence - The operative procedure adopted by the Opposite Parties was an accepted reasonable standard of practice, but not having a proper informed consent, it amounts to negligence per se.

ORDER

Dr. S. M. Kantikar, Presiding Member—Both the Appeals have been filed under Section 21 of the Consumer Protection Act, 1986 by the Opposite Parties (hospital and doctors) challenging the Order dated 02.11.2007 passed in C.C. No. 131/2003 by the State Consumer Disputes Redressal Commission, Delhi (hereinafter referred to as the ‘State Commission’) whereby the complaint was allowed and the lumpsum compensation of Rs.1,00,000/- was awarded on the ground of deficiency.

2. Brief relevant facts of the case are that, initially Complainant was examined in AIIMS on 09-08-2001 by Dr. Arvind Kumar (OP No.2) and based on CXR and C-T Scan, surgery was advised for the ‘Anterior Mediastinum Tumor’. and the Complainant was admitted for surgery on 20-08-2001. The OP-2 and his team performed surgery Median ‘Sternotomy’ and ‘Thymectomy’ on 22-08-2001. After operation, the Complainant was told by the OP No. 2 that he had to cut his left Phrenic Nerve as the same was passing through the Tthymaic mass and there were no other option left to remove the thymas mass. The consequence of cutting of left Phrenic Nerve was that his left diaphragm was raised and exists like this till date.

3. As soon as the Complainant regained consciousness he realized that he was not able to speak and it was informed to the OP No. 2. He took it very lightly and told to the Complainant that there may be an injury to vocal cords in the process of giving General Anesthesia (GA) before the surgery, which occurs very usually and the voice comes back to normal 3-4 days. The Complainant was discharged on 30.08.2021 i.e. after 8 days of the surgery, but there was no improvement in his voice. The Complainant went to ENT Department (AIIMS) to get himself examined for the problem of voice suffered by him. After examination, the ENT Department of AIIMS declared left cord palsy (post-operative) and suggested the Complainant for speech Therapy. It was alleged it was the utter negligence of OP No.2 and further alleged that specimen of the ‘Thymus Mass’ removed after the surgery was not sent for Histopathology test within time, therefore no definite opinion was given. Dr. Arvind OP No. 2 based on HPE report advised radio therapy as a proper treatment, but Complainant did not show any improvement in his voice or movement of the left vocal cord. Being aggrieved the Complainant filed complaint before the State Commission and claimed an amount of Rs. 65,25,000/- as compensation from the OPs.

4. The Opposite Parties in its written version denied negligence on their part. The complainant is not a consumer. The AIIMS is totally funded by Central Government and not amenable under the Consumer Protection Act, 1986. Therefore the present complaint is liable to be dismissed. It was further submitted that the surgery was performed through mid-sternotomy. A big mass was found, more on the left side which extended up to the arch of aorta. It was completely engulfing the left phrenic nerve. It was not possible to remove the tumor in toto without sacrificing the left phrenic nerve. Therefore, in the best interest of the patient on table decision was taken by the operating surgeon to resect the left phrenic nerve. It was an accepted standard of treatment of thymoma tumor. Thereafter during ENT examination, the patient was detected to have left vocal cord palsy and accordingly speech therapy was advised. All the possibilities were kept in mind after the surgery to explain his hoarseness.

5. After hearing both the parties, the State Commission partly allowed the Complaint with following observation:—

“20. Aforesaid conspectus of rival claims and contentions lead to the conclusion that the OP was deficient firstly in cutting left phrenic nerve of the complainant negligently While excising thymus mass as this could have been avoided and further that they left the phrenic nerve without stimulating the same or without suturing its end that caused paralysis of the left phrenic nerve as well as diaphragm.