ORDER
D.P. Wadhwa, J. (President)
1. In this complaint which pertains to alleged medical negligence by the opposite
parties being the Hospital and two doctors. There is a claim for Rs. 26,90,000/-. There are
two complainants, daughter and father. Medical negligence is alleged qua Neha Kumari
who at the time of filing the complainant is stated to be of 21 years of age.
2. This complaint was filed on 26.9.2000. Operation was performed on Neha
Kumari in November 1990. An objection has been raised that the complaint is barred by
limitation.
3. Alleged complaint is that Neha Kumari, the first complainant had some problem
in growth of her shoulders and for that she went to Apollo Hospitals, Chennai, opposite party
No. 1 on 21.11.90. Dr. R. Gopal Krishnan, opposite party No. 2 checked her and advised
C.T. Scan of dorsal spine and lumber spine. After examining C.T. Scan both Dr. R. Gopal
Krishnan, opposite party No. 2 and Dr. Reginold, opposite party No. 3 advised that operation
had to be performed on the spinal canal of Neha Kumar. This operation was performed on
27.11.90. Complainants alleged that in spite of the two doctors stating that the operation was
successfully performed when it was not so and rather Neha Kumari developed more ailments
and instead of getting better she developed paraplegia and lost urinating and stool sensation
and control. This was brought to the notice of both the doctors and second complainant says
that again an operation was performed on Neha Kumar on 2.12.90 when he was not made
aware of that and some papers were got signed from him. Neha Kumari was discharged from
the Hospital on 12.3.91 with advice to continue physiotherapy treatment. At the time when
she was discharged there was no improvement to her lower region which remained senseless.
Complainants were assured that after physiotherapy treatment Neha Kumari will be all right.
Complainants say this physiotherapy treatment continued till 1998 when in the month of
November 1998 same ailment developed.
4. Then Neha Kumari started feeling severe pain in both soldiers and abdomen
when she again approached to Dr. Raj Gopal Krishnan on 28.11.98 at Indraprasth Apollo
Hospital, Delhi. Dr. Raj Gopal Krishnan 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 of segments. This according to Dr. Raj
Gopal Krishnan had resulted in the non-functioning of the lower limbs below trunk of Neha
Kumari. Dr. Raj Gopal Krishnan further told them the treatment given earlier was not proper
and opposite parties had committed gross negligence while treating Neha Kumari. Dr. Raj
Gopal Krishnan then advised removal of the rod and referred Neha Kumari to Dr. Shekhar
Aggarwal of Sant Parmanand Hospital, Civil Lines, Delhi as Dr. Raj Gopal Krishnan was going
abroad for a long period. Dr. Shekhar Aggarwal had also stated to have advised for removal
of the rod to avoid further damage. Neha Kumari was again operated on 1.12.98 and
implant was removed. She was discharged from the Hospital on 3.12.98. It is stated that
though condition of Neha Kumari became stable but she is still confined to wheel chair 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.
5. It is not clear to us if Dr. Raj Gopal Krishnan of Indraprasth Apollo Hospital,
Delhi is the same person who is impleaded as second opposite party with the name R. Gopal
Krishnan. However, the allegations as contained in the complaint have been stoutly denied by
the opposite parties. It would appear that the cause of action for filing this complaint is taken
from 1998 on discharge of Neha Kumari from Sant Parmanand Hospital, Delhi. Two written
version have been filed one by the Hospital-opposite party No. 1 and second by opposite party
Nos. 2 and 2. Hospital says that it is not liable because both the doctors were consultants and
were not employees of the Hospital and as such Hospital is not vicariously liable for any
wrong doing on their part. This is not correct as in the case of Basant Seth v. Regency
Hospital-Original Petition No. 99/94 we have already held that for any negligence on the part
of the consultant, Hospital would be liable. Dr. R. Gopal Krishnan, opposite party No. 2 is
the Orthopaedic Surgeon and opposite party No. 3 Dr. Reginold is a Neurosurgeon. They
said it is unbelievable that Neha Kumari had physiotherapy for 8-1/2 years and there is no
record to support this allegation. They further say that it is false to allege that Dr. Raj Gopal
Krishnan informed the complainants that rod was fitted inappropriately and at wrong level
which resulted in the non-functioning of the lower limbs of Neha Kumari.
6. Both the opposite parties said that Neha Kumari complained of lateral bending
of dorsal spine and multiple complex deformities of spine and scolioses 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 myelomeningocele a congenital doformity
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 here grandfather
had. On detailed investigations Neha Kumari was found to have multiple congenital complex
problems in kyphoscoliotic doformity with weakness and wasting of right upper limbs and (i)
complex khyphoscoliotic deformity of the mid dorsal spine with hemivertibrae at the D5 and D6
spinal levels and spina bifida of the D6 & D7 vertebrae, (ii) diastematomyelia of the lumbar
spine at L1&L2 levels with interposition of a bony spurt at L1 and L2 levels, (iii) a large spinal
bifida of the posterior neural arches involving the L1 to L5 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 Neha Kumari had congenital spinal doformities which can be incredibly severe, can
result in death from cor pulmolane, paralegia and can be associated with a multitude of other
problems.
7. Thereafter, opposite parties have stated how investigations were conducted and
how surgery was performed. Paras 13, 14 and 15 of the written version of opposite parties 2
and 3 describe the surgery on Neha Kumar performed on 27.11.90 and re-exploration on
2.12.90 and her discharge from the hospital:
“13. These Opposite Parties state that on 27.11.1990 the 1st Complainant was
taken up for surgery under general Anaesthesia with the patient prone, a midline
incision was done on the Dorsal Spine. On exposure, she was confirmed to
have a bony bar extending from D4 to D7 on the concave side of the dorsal
scoliosis deformity which is the cause of complex Kyphoscoliotic deformity of
Dorsal Spine. The body bar was excised and deformity corrected and Luque
Rod System D3, D8 (A STANDARD SPINAL, UNIVERSAL ACCEPTED
STABILIZATION SYSTEM). LUQUE ROD SYSTEM is where two “L”
shaped rods are held on either side of the spine by multiple inter laminar wires
to hold the spine straight after correction and prevent the spine from collapsing.
14. These Opposite Parties state that post operatively she developed
Neurological Vascular Complication weakness and parapersis of both lower
limbs with progressive weakness and paralysis including bladder and bowel
involvement. Unfortunately she developed a known vascular complication of
spinal surgery. Specially associated with Scoiolsis and Congenital Scoliosis
Deformities correction surgery of the spine. It is submitted that this vascular
complication of paraplegia is well documented in all textbooks. To determine
the cause of the above complications, she had a Myelogram done on 1.12.1990.
This was fully explained to the patient and 2nd Complainant/relative and written
consent obtained for the same.
15. These opposite parties submit that Myelogram showed a block at D3-D4
level. Hence it was decided to explore the operative site to give the benefit
of doubt to the patient and one does not lose anything in the exploring of
wound. On 2.12.1990, she was taken for re-exploration of wound. On
exploration a small clot was found sitting on the cord which was removed. The
spine was found to be stable and hence would closed. Postoperatively she
recovered partially, continue of the bladder and bowels regained. Motor and
sensory improvement was seen on both lower limbs. Pain was also felt in
lower limbs. She was kept in the hospital for 52 days where she was on a spinal
brace and was mobilized on a wheel chair and was able to stand with support,
she was discharged from the Hospital with advice of physiotherapy to be
continued. It is submitted that following this she never came or contacted
these opposite Parties for follow up after discharge. On discharge the parents
also presented a table lamp to the Second Opposite party in appreciation of
service rendered.”
8. It is the two doctors then add that Neha Kumari 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.
9. In the rejoinder to written version filed by the complainants we find it is more
argumentative where reference has been made to various excerpts from medical books. We,
however, need not go into that. From the pleadings we find that 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 Neha Kumari was discharged
from the Hospital on 12.3.91 till the complainants again consulted Dr. Raj Gopal Krishnan of
Indraprasth Apollo Hospital at Delhi on 28.11.98. Complaint is silent as to what further
treatment, if any, Neha Kumari 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. We are unable to find
any reason for condoning the delay in filing this complaint. We are 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 on 28.11.98. A theory which has no basis is sought to
be built to come within the period of limitation. We are unable to accept the statement of the
complainants that they came to know about operation being inappropriately performed by the
opposite parties only in November, 1998. Moreover, we do not find it is a case medical
negligence as alleged. Complainants have not denied that Neha Kumari was suffering from
ailments from the very birth and that she was operated upon when she was only four years of age.
10. We, therefore, dismiss this complaint as barred by limitation.