13-47 NEUROLOGY /NEUROSURGERY

13-47.1 Neuro-physician-Violent convulsions-Negligence held for not at- tending to patient despite serious condition-Compensation of Rs. 3 lac awarded against the hospital and Rs. 50,000 against the neuro-physician- The complainant's 13 year old only son was suffering from epilepsy and was under care of neuro-physician Dr. Nathan. On 4.1.1992, the child started getting violent convulsions, and initially was admitted to another Nursing Home and subsequently in the opposite party's hospital. Here, he continued to have convulsions, developed other serious complications and ultimately expired on 8.1.1992. The State Commission held negligence on part of neuro-physician on following grounds: not attending a serious patient for the reason that it was a Saturday and Sunday; .on shifting the child to the opposite party hospital on his insistence, he arrived much late to examine and treat the child; he did not arrange any co-ordination between himself and the hospital staff; he subsequently visited the hospital at interval of 24 hours, despite knowing the serious condition of the child. After admission the hospital did not make serious efforts to contact the neuro-physician when the condition of the child became serious."')\When the child was at the verge of collapse, the hospital did not make efforts to request the neuro-physician to stay in hospital to take care of the child. As the hospital was under implied contractual obligation to take reasonable care it was also held liable and was directed to pay Rs. 3 lac towards compensation. The neuro-physician was directed to pay an additional Rs. 50,000/- towards compensation. [Murlidhar Eknath Masane v. Sushrusha Citizen Co-op. Hospi- tal Ltd. & Anr., Complaint No. 203/92, decided on 29.10.1994, by Mah. SCDRC (unreported).]

13-47.2 Neurology-Polyradiculoneuropathy-Cardiac arrest-Patient in ICCU not intubated in time as instructed-Oxygen tube coming out, not noticed- Negligence held-Hospital held to pay Rs. 2 lac as compensation-The deceased, son of the complainant suffering from acute polyradiculoneuropathy was admitted in the respondent hospital, and he was put on oxygen and was otherwise being monitored in ICCU. A senior consultant in Neurology had given detailed instructions to the staff-in-charge of ICCU. One of the important suggestions was that the patient be intubated immediately, but it was done only after a delay of two hours, and though the patient was put on oxygen, the nurse did not notice that the oxygen tube had come out. The patient ultimately died of cardiac arrest. Held: As a rule, only serious patients are in ICCU and the staff is expected to be extra cautious. That level of caution should have been more, particularly, when staff was attributed with the knowledge that the patient was restless and his condition was deteriorating very fast. No one is sure as to whether the patient would have pulled through that crisis or even If he had survived, the damage already done by the said disease which had progressed to affect the entire body within a few hours, and was still progressing could be checked or reversed. But, the lack of extra vigilance, at least contributed to the acceleration of the end. There is no evidence to show that intubation would have saved the patient. But, such action may have helped in the treatment. This is most unfortunate that the disease progressed so fast that before the patient could be removed to any Centre where the latest treatment of plasma pherasis was available the end came. No one can with certainty say if intubations in time would have saved the patient or at least prolonged his life until he could be taken to any other hospital where Plasma pherasis facility was available. Nonetheless, such delays and lapse in not noticing the coming out of oxygen tube which was in a way life support system are serious matters for which the hospital administration cannot escape liability .Even if it is argued that there was no callousness on the part of the respondent No.4 who was the Doctor-in- charge and who accepted the suggestions and recommendations of respondent No. 5 and gave instructions to give effect thereto, it is difficult to overlook the lapses on the part of the staff in the ICCU unit. For that reason the hospital would be liable to compensate the petitioners. Compensation of Rs. 21ac awarded. [Bhajan Lal Gupta v. Mool Chand KheraitiRam Hospital, 2001 (1) CPJ 31 (NCDRC)]

13-47.3 Neurology-Improper treatment-Death of complainant's mother aged 63 years admitted in hospital as a case of coma with right hemiplegia caused by intra-cerebral haemorrhage with chronic Hepatitis with cirrhosis liver-An independent witness, a neuro surgeon of repute deposing that diagnosis and - treatment given to patient and management of her case proper and adequate and it was not a proper case for surgery and the choice for medical treatment against surgical therapy in respect of intra-cerebral haemorrhage reasonable and proper choice in the best interest of the patient-Plea that surgery should have been performed on the basis of the opinion of a doctor (complainant's witness who is neither a Gastroenterologist nor a Neuro-surgeon nor a Neuro-physician) not tenable-No negligence-Complaint dismissed with costs Complainant has sought compensation for causing the untimely death of his mother due to gross negligence and the deficiency of service on the part of the Hospital authorities including the doctors and nurses and for mental agony undergone by the complainant and his family during the treatment. Complainant is a bachelor. His father was alive at the time of filing of this complaint. His father or even his brother did not join the complainant in making allegations of negligence etc. against the Hospital, the doctors and the Hospital staff and seeking compensation as claimed by the complainant, though brother of the complainant was permitted to join at the fag end of the proceedings by order dated 3.12.2001 when arguments heard and orders reserved in the complaint. It is not that he had signed the pleadings or even appeared to support the complainant. Other close relatives of the complainant whose names have come in the proceedings are three doctors. They also do not support the complainant that there were any failings or faults on the part of the Hospital, its staff or the doctors in providing proper medical management services and treatment to the deceased. A team of competent doctors treated the deceased. As a matter of fact any allegation of incompetence or negligence against a doctor cannot be permitted or looked into without making the doctor party in the proceedings. An independent witness Dr. D.K. a reputed Neuro-surgeon whose competence could not even be doubted by the complainant or his witness Dr. S, appeared in the proceedings and testified that the treatment given to the deceased was proper and nothing more could have been done. He also stated that case of deceased was not a fit and proper case for surgery There was no warrant whatsoever for the complainant to fite this complaint making allegations of negligence and incompetence against the Hospital, its staff and the doctors. [ Basant Seth & Anr. v. Regency Hospital Ltd., OP No.99 of 1994, decided on 22.1.2002 (NCDRC)] 13-47.4 Neurosurgery-Non-functioning of limbs-Complainant having problem in growth of her shoulders undergoing surgery on spinal canal under OP-1, and advised to continue physiotherapy-Surgery done on 27.11.1990 and patient discharged on 12.3.1991-Feeling severe pain in shoulders-Complainant approaching another hospital the doctor wherein opining that the rod fitted inappropriately and there was no need to fix such rod; and the OP-1 committed gross negligence resulting in non-functioning of lower limbs-Pre-operative C. T .scan showing that complainant suffered from congenital defects of spine and the whole body and contacted other surgeons in this respect-O Ps performed surgery only after explaining the consequences thereof in detail-Allegation of negligence not supported by any evidence-Complaint liable to be dismissed-In the instant case, the First Complainant had some problem in growth of her shoulders. She was operated in November, 1990 at the Apollo Hospital, Chennai on the spinal canal. She did not get better and got paraplegia and lost urinating and stool sensation. She started feeling severe pain in both shoulders and abdomen when she again approached Dr. Ron 28.11.1998 at Indraprasth Apollo Hospital, Delhi who told the complainants that the rod was fitted inappropriately at wrong level with segment wires and stated that there was no need to fix such rod and that too inappropriately at wrong levels o(segments. This according to Dr. R had resulted in the non-functioning of the lower limbs below trunk of the complainant. Dr. R further told them the treatment given earlier was not proper and opposite parties had committed gross negligence while treating the complainant and then advised removal of the rod and referred to Dr. S of Sant Parmanand Hospital, Civil Lines, Delhi as Dr. R was going abroad for a long period. Dr. S is also stated to have advised for removal of the rod to avoid further damage. The complainant was again operated on 1.12.1998 and implant was removed. She was discharged from the Hospital on 3.12.1998. It is stated that though condition of the complainant became stable but she is still confined to wheelchair and there is no ray of hope for any change in her condition. It is alleged that this condition in which she is now is due to negligent act on the part of the opposite parties. Both the opposite parties said that the complainant complained of lateral bending of dorsal spine and multiple complex deformities of spine and scoliosis of dorsal spine with multiple birth defects of spine and spinal cord, since birth increasing progressively. She was first operated at 4 months of age on her spine for mylomeningocele - a congenital deformity and birth defect of spine and spinal cord. She used to wear spinal brace and belt and had other treatment in between. She has a family history of developing paralysis, which her grandfather had. On detailed investigations, it was found to have multiple congenital complex problems in kyphoscoliosis deformity with weakness and wasting of right upper limbs and, (i) complex kyphoscoliosis deformity of the mid dorsal spine with hemi-vertebrae at the DS and D6 spinal levels and spinal bifida of the D6 and D7 vertebrae; (ii) diastematomyelia of the lumbar spine at L1 and L21evels with interposition of a bony spurt at L1 and L21evels; (iii) a large spina bifida of the posterior neural arches involving the L 1 to LS vertebrae; and (iv) an irregular extradural soft tissue lesion that was a convex impression on the thickened posterior wall of lumbar thecal sac L1, L2, L3 vertebrae level and post operative changes of L1, L4. This showed that the complainant had congenital spinal deformities which can be incredibly severe, can result in death from cor pulmolane, paraplegia and can be associated with a multitude of other problems.

The complainant suffered from complex birth defects of the spine and whole body as evident from pre-operative C. T .scan. She and her parents were fully explained and aware of these problems. They had also previously contacted a surgeon in Bombay and Patna. These opposite parties also explained in detail regarding the problem and complications of surgery and then only consent for surgery was taken.

Both the opposite party Nos. 2 and 3 are honest in their approach. The question that has been raised at preliminary stage is about limitation in filing this complaint on 26.9.2000 when the patient was discharged from the Hospital on 12.3.1991 till the complainants again consulted Dr. R of Indraprasth Apollo Hospital at Delhi on 28.11.1998. Complaint is silent as to what further treatment, if any, the patient took and there is nothing to substantiate that she was having physiotherapy treatment for all these years. No sufficient cause has been shown as to why complaint could not be filed within the period of limitation prescribed. It is unable to find any reason for condoning the delay in filing this complaint. It is also unable to subscribe to the statement put forward by the complainants that they came to know alleged medical negligence of the opposite parties only 28.11.1998. A theory which has no basis is sought to be built to come within the period of limitation. The statement of the complainants that they came to know about operation being inappropriately performed by the opposite parties only in November, 1998 cannot be accepted. Moreover, it is not a case of medical negligence as alleged. Complainants have not denied that the patient was suffering from ailments from the very birth and that she was operated upon when she was only four years of age. For these reasons complaint was dismissed. [Neha Kumari & Anr. v. Apollo Hospital & Ors. ,2003 (1) CPJ 145 (NCDRC)]

13-47.5 Neurosurgery-Removal of brain tumor-Allegation of wrong diagnosis and improper introduction of shunt-CT scan and biopsy reports confirming diagnosis-No active problem after operation and patient periodically visiting doctor for check-up-After almost 11 months, CT scan report showing development of tumor once again-Patient operated again, a shunt inserted from brain through stomach to excretory organs to reduce wound leak and radiotherapy given at the end of which shunt removed and treatment by chemotherapy advised, but patient died subsequently-No negligence in diagnosis nor in insertion and removal of shunt-Seeing the CT scan report, the surgery was performed on 4.11.1992 and the tumor was sent for histopathology report. The histopathology report given by opposite party No.2 dated 9.11.1992 shows the diagnosis as capillary hemangioblastoma. The report given by appellant on 12.11.1992 gives the details of diagnosis and operation and that left suboccipital craniectomy was done. The follow-up report dated 16.12.1992 shows that total removal was done on 4.11.1992 and there was no active "" problem but there was minimum residual ataxia. After that the patient was periodically visiting the doctor. Therefore, there was no deficiency in the first diagnosis and the removal of the tumor. On 7.10.1992 after almost 11 months, C. T. scan showed capillary hemangioblastoma and that once again there was done calcification and multiseptated mass lesion noted in the left cerebellar hemisphere and pressure effect was seen on the left ambient cistern. Hence the patient was operated again on 25.10.1993 and to drain the pressure of Hydrocephalus a shunt was placed. The histopathology report dated 31.10.1993 con- finned the diagnosis of "recurrent ependymoma". Therefore, while the shunt was in place, the patient was sent for radiotherapy and after the course was over the shunt was removed and further treatment by Chemotherapy advised. Therefore, the shunt was kept for a short period. As per discharge note of C.D.R. Hospital, dated 22.1.1994 "Shunt done post-operatively to reduce wound leak. Shunt function was good. Post-operative period uneventful. Shunt removed' Hence, there was no deficiency on this ground also.

The histopathological report showed recurrence of ependymom-a, which means malignant mass, hence radiotherapy was advised. Only after co!upleting the radiotherapy, the shunt was removed, hence it is not correct to say that the shunt was improperly introduced. Hence there was no negligence on the part of the opposite parties as they f could never give guarantee for full recovery but only encouraged the complainants so ,J that they would follow the treatment properly. [(Dr.) K. Sndhar v. Budda Lakshmlkan- tham, 2003 (3) CLD 207 (AP SCDRC)]

13-47.6 Neurosurgery-Wrong treatment-Fracture of skull in accident-Patient in coma admitted in government hospital-X-rays taken before admitting as. Inpatient showed linear fracture of skull, but C. T. scan report from another; hospital showed "no bone injury is noted"-Doctors of Neuro-surgery Department attending the' patient opining no surgery necessary, and medical treatment continued-Complaint alleging that the C. T .scan report given negligently due to inexperience of technician or defect in the scan machine and the patient treated wrongly on the basis of said report resulted in death of patient-Complainant failing to establish that the C. T .scan report influenced the doctors to change the line of treatment-No negligence or deficiency in service on the part of opposite parties-The third opposite party is Superintendent, Gandhi Hospital, Secunderabad which is a Government hospital treating the patients free of cost and as such no relief can be granted against the third opposite party and the. complaint is accordingly dismissed against the third opposite party . The complainant's husband was in coma when he was admitted "v inpatient in the" third opposite party hospital. The doctors examined him in the casualty and before admitting him as inpatient X-rays were taken. On the basis of the X-rays and also on the clinical condition of the patient treatment was started. As per the case sheet the patient was in coma when he was examined by the duty doctor (Neuro Surgeon) and he never regained consciousness. No doubt C.T. scan did not show the skull fracture. The post-mortem report discloses that there was Epidural blood clot over the right temporal lobe of the brain underneath the fracture site and subdural blood clot over left frontal and left temporal areas. Epidural blood clots and subdural blood clots must have developed sometimes after C. T. scan and they are not mainly responsible for his death. X-rays taken in the third opposite party hospital have shown the skull fracture. Even though C. T. scan report did not disclose the same and the doctors of Neuro-surgery Department are aware of the skull fracture and opined that the surgery was not necessary but medical treatment continued. Even in the C. T .scan reports if a mention was made that there was fracture which was already known to the third opposite party doctors the line of treatment would not have been changed. The Neuro-surgery doctors who were attending on the patient after seeing the X-rays, skull and also the condition of the patient advised for C. T .scan to know further details of the injury to the brain. Even the Consultant Radiologist expressed the same opinion. He denied the suggestion that the reason for non-detection of 10 cms. linear skull fracture was missed in CT scan report due to inexperienced hand of the technician or due to defect in the C. T .scan machine. , He too asserts that there would not be any change in the line of treatment if there is skull

fracture. "iF The opposite parties 1 and 2 stated that linear fractures may be missed at C. T .scan if the line is parallel to the place of sections obtained. The second opposite party also states in his written version that C. T. scan is not the only criteria in the decision process and management in head injury trauma. There will be assessment of plain radiographs as well as physician's own clinical findings. So from this evidence the absence of the skull fracture in the C. T. scan is neither due to inexperience of the Radiologist nor has the effect of chaftge in the line of treatment, as all the opposite parties have stated in one voice that Neurology Department doctors have noticed the skull fracture in the X-rays and as such the absence of skull fracture in the C. T .scan does not in any way affect the line of treatment or management of the patient.

The complainant failed to establish the fracture of skull in the C. T. scan report influenced the doctors in any way which resulted in wrong line of treatment or management of the patient. Having regard to these circumstances no negligence can be attributed to the opposite parties 1 and 2. [G. Bala Saroja v. C.D.R. Hospital, 2003 (2) CLD 198 (AP SCDRC)]

13-47.7 Neurosurgery-Anterior cervical discoidectomy C4-CS with removal of osteophyte and cervical fusion-Patient contacting pseudomonas infection-AI- legation of unhygienic conditions in the hospital-Line of treatment adopted by O Ps not disputed nor the necessity of surgeries performed, nor is there any complaint of any defect in performing those surgeries-Patient not in the hospital during the relevant period he contacted infection-Every possibility that he contacted the infection endogenously-HAI (Hospital Acquired Infection) not proved by complainant-Held, no negligence or deficiency in service-Even assuming that in some cases there is proof about Hospital Acquired Infection (HAl) sometimes even in best maintained hospitals also there may be likelihood of such bacteria being transmitted in considerable percentage of patients. Unless the complainant is able to establish that the hospital authorities were negligent in maintaining the hospital in high degree of aseptic conditions with sterile and disinfected theatres, it cannot be said that there is negligence on their part. The opposite parties assert that the hospital is run under highly hygienic and disinfected conditions. The complainant has failed to establish that there is any deficiency in service on the part of the opposite parties. [B. Mahidhar Reddy v. Apollo Hospitals, 2003 (6) CLD 373 (AP SCDRC)]

Foreign Case 13-47.8 Neurosurgery-Consent-Duty to warn of risk of surgery-Failure of surgeon to inform the patient of the possible risks involved in the operation and the possible consequences-Although patient anxious to avoid an operation for removal of three intra-vertebral discs, she agreed to the operation during which she suffered nerve damage which resulted in paralysis-Patient would not have consented to the operation at that time, had she been warned of the known consequences-Patient establishing necessary causal link between negligence of doctor with the damage suffered by her:-Whether or not she would not have undergone the operation at another time or never immaterial:-- The claimant patient suffered from severe back pain. She was referred to the defendant, an eminent neuro- surgeon, who advised her that three intra-vertebral discs should be removed. Although the patient had been anxious to avoid surgery, she agreed to the-operation, and it was performed three days later. During the operation, which was properly performed, the patient suffered nerve damage resulting in paralysis. Such damage was a very small but it known risk of the operation. In subsequent proceedings for negligence, the patient alleged that the surgeon had failed to advise her of that risk, and that, if he had, she would have sought at least two further opinions as to whether an operation was necessary .She did not, however, allege that she would never, at any time or under any circumstances, have consented to the surgery. To establish a causal link between the defendant's failure to advise and warn the claimant of the risk and the damage (and its consequences) which she sustained, it is sufficient for the claimant to prove that, had she been properly advised, she would not have consented to undergo that operation on that day.

The claimant can show that she would not have had the operation she did, or would not have had it when she did, or would not have had it in the circumstances in which she did, but she cannot show that she would never have had some surgical procedure of this kind which would have carried the same or similar risks.

If it is more likely than not that the same damage would have been sustained in any event, then all the defendant has done is bring forward the date when she suffers it. If it is more likely than not that the same damage would not have been suffered, then by causing her to have the operation that day he has caused her to sustain it. There is no problem of remoteness because the risk was clearly foreseeable: it was the fact that it was a foreseeable risk, albeit a small one, that gave rise to the duty to warn which was broken. Indeed, in each of these cases, it can be said that he has caused some damage, the question of acceleration being one of quantum rather than causation.

If that is the correct approach, then causation is established in this case. The judge made a clear finding that the claimant would not have had the operation when she did. The defendant therefore caused her to have the operation. The judge did not expressly find that the likelihood was that she would not have suffered the same injury on a different occasion. But the evidence both as to the general and the particular risks of this procedure was such that such a finding was strongly arguable if not inevitable when damages come to be assessed. At the trial it was not suggested that the well-known risk of cauda equina damage resulting from the type of surgery advised and performed by the defendant was greater than 1% to 2%. Nor there was any evidence to show that the claimant's constitution made her abnormally vulnerable to this type of surgery. But this will be a matter for the court assessing damages. On the assessment it will be open to the defendant to argue (and prove so far as he may be able to do so) that: (i) it is more likely than not that the claimant would have undergone an operation with the same or similar risks in the future; and (ii) it is more likely than not that the same risk would have been eventuated. In principle there seems to be little difficulty in attributing causative responsibility to a doctor who has in breach of duty failed to draw a particular risk to his patient's attention if in the event that particular risk materializes. The purpose of the rule requiring doctors to give appropriate information to their patients is to enable the patient to exercise her right to choose whether or not to have the particular operation to which she. is asked to give her consent. Liability lies in negligence rather than trespass. But the patient does still have the right to choose what will and will not be done with her body and the doctor must take the care expected of a reasonable doctor in the circumstances in giving her the information relevant to that choice. The law is designed to require doctors properly to inform their patients of t41e risks attendant on their treatment and to answer questions put to them as to that treatment and its dangers, such answers to be judged in the context of good professional practice, which has tended to a greater degree of frankness over the years, with more respect being given to patient autonomy. The object is to enable the patient to decide whether or not to run the risks of having that operation at that time. If the doctor's failure to take that care results in her consenting to an operation to which she would not otherwise have given her consent, the purpose of that rule would be thwarted if he were not to be held responsible when the very risk about which he failed to warn her materializes and causes her an injury which she would not have suffered then and there- In any event, the pleading was adequate to allege that the claimant would not have consented to the operation which was in fact performed upon her and would at the very least have postponed the decision. [ Chester v. Afshar, (2002) 3 All ER 552]