# > NIZAM'S INSTITUTE OF MEDICAL SCIENCES v. PRASANATH S. DHANANKA & ORS

- **Citation:** [2009] 9 S.C.R. 313
- **Court:** Supreme Court of India
- **Decided:** 2009-05-14
- **Case number:** Civil Appeal No. 4119 of 1999
- **Bench:** B.N. Agrawal, Harjit Singh Bedi, G.S. Singhvi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nizam-s-institute-of-medical-sciences-v-prasanath-s-dhananka-ors-26164
- **Pages:** 54

## Headnote

Negligence - Medical negligence - Compensation -
Twenty year old Engineering student - Operation conducted c
on - Resulting in acute paraplegia with complete loss of
control over the lower limbs -
Complaint filed alleging
negligence before, during and after the operation - Claim of
....
compensation of about Rs. 4.61 crores -
Consumer
Commission holding that there was negligence and deficiency
D
of service before, during and after the operation and directing
compensation of Rs. 14 lakhs -
On appeal, Claim of
compensation of Rs. 7.50 crores and seeking direction to
keep aside further 2 crores for use in future if some
developments beneficial to complainant in the medical field
take place - Held: Attending doctors were remiss in their
E
~
conduct at pre-operative and at operative stage - However,
case of negligence at post-operative stage not made out -
,..
Once initial burden has been discharged by the complainant
by making out a case of negligence, the onus shifts onto the
F
hospital or attending doctors to prove lack of negligence -
Compensation of Rs. 1 crore would be appropriate - Claim
of Rs. 2 crores is hypothetical hence cannot be allowed - The
court has to strike a balance between inflated and
~
unreasonable demands of victim and the claim of opposite
G
'
party negating its liability in its entirety - In a case of the
present kind, use of multiplier method for determining
compensation is not proper - Compensation - Consumer
Protection - Deficiency in service.
313
H
314
SUPREME COURT REPORTS
[2009] 9 S.C.R.
JO-.
A
Respondent-complainant, a twenty year old student
of Engineering, visited the appellant-hospital for
examination of his ailment. An innocent tumor was
detected in X-ray. As several attempts at Fine Needle
Aspiration Cytology (FNAC) did not give any conclusive
t
B result, he was suggested excision biopsy. He was
'
referred to a Cardio Thoracic Surgeon, who operated on
him, for excision of the tumour. Immediately after the
,...
surgery, the complainant developed acute paraplegia
with complete loss of control over the lower limbs and
c some other related complications. This led to his
prolonged hospitalization. He was discharged from the
hospital completely paralyzed. He , therefore, required
continuous physiotherapy and nursing care.
D
Respondent No. 1 filed a complaint before National
Consumer Redressal Commission, alleging utter and
j..
complete negligence on the part of the doctor who· had
operated on him. The negligence was alleged at three
stages i.e. before, during and after the operation. He made
a claim of Rs. 4,61,31,152/-. The appellant-hospital and the
E doctors denied the allegations. The State Government
also disowned any liability. The Commission held that
there was negligence and deficiency in service on the part
of the hospital at all stages of the case i.e. at pre-operative
)-
stage, operative stage and post-operative stage.
'
F However, it negated complainant's plea that no consent
for the excision of tumour had been taken, holding that
prior implied consent had been taken. The Commission
directed payment of compensation of Rs. 14 lakhs. It also
.._
granted compensation of Rs. 1.5 lakhs to the parents of
G complainant. Hence these cross-appeals.
.....,;..
Disposing of the appeals, the Court
HELD: 1.1. The attending doctors were seriously
remiss in the conduct of the operation and it was on
H account of this negligence that the Paraplegia had set in.
...
,./;
l
,
NIZAM'S INSTITUTE OF MEDICAL SCIENCES v.
315
PRASANATHS.DHANANKA
,.
They were also seriously remiss in not associating a
A
neuro-surgeon at the pre-operative as well as at the stage
of the operation. [Paras 27 and 33] [357-A; 362-E-F]
,.
1.2. Complete investigations prior to the actual
operation had not been carried out. The main plea of the
8
complainant is that the pre-operation examinations had
~
revealed a situation which required the intervention of a
Neuro Surgeon. The case of respondent-doctor however,
is that the involvement of

## Text

_Characters 0–39,692 of 108,024. This is a partial read: ask again with offset=39692 for what follows._

[2009] 9 S.C.R. 313
. ..>
NIZAM'S INSTITUTE OF MEDICAL SCIENCES
A
v.
PRASANATH S. DHANANKA & ORS.
(Civil Appeal No. 4119 of 1999 etc.)
~
MAY 14, 2009
B
~
[B.N. AGRAWAL, HARJIT SINGH BEDI AND G.S.
SINGHVI, JJ.]
Negligence - Medical negligence - Compensation -
Twenty year old Engineering student - Operation conducted c
on - Resulting in acute paraplegia with complete loss of
control over the lower limbs -
Complaint filed alleging
negligence before, during and after the operation - Claim of
....
compensation of about Rs. 4.61 crores -
Consumer
Commission holding that there was negligence and deficiency
D
of service before, during and after the operation and directing
compensation of Rs. 14 lakhs -
On appeal, Claim of
compensation of Rs. 7.50 crores and seeking direction to
keep aside further 2 crores for use in future if some
developments beneficial to complainant in the medical field
take place - Held: Attending doctors were remiss in their
E
~
conduct at pre-operative and at operative stage - However,
case of negligence at post-operative stage not made out -
,..
Once initial burden has been discharged by the complainant
by making out a case of negligence, the onus shifts onto the
F
hospital or attending doctors to prove lack of negligence -
Compensation of Rs. 1 crore would be appropriate - Claim
of Rs. 2 crores is hypothetical hence cannot be allowed - The
court has to strike a balance between inflated and
~
unreasonable demands of victim and the claim of opposite
G
'
party negating its liability in its entirety - In a case of the
present kind, use of multiplier method for determining
compensation is not proper - Compensation - Consumer
Protection - Deficiency in service.
313
H
314
SUPREME COURT REPORTS
[2009] 9 S.C.R.
JO-.
A
Respondent-complainant, a twenty year old student
of Engineering, visited the appellant-hospital for
examination of his ailment. An innocent tumor was
detected in X-ray. As several attempts at Fine Needle
Aspiration Cytology (FNAC) did not give any conclusive
t
B result, he was suggested excision biopsy. He was
'
referred to a Cardio Thoracic Surgeon, who operated on
him, for excision of the tumour. Immediately after the
,...
surgery, the complainant developed acute paraplegia
with complete loss of control over the lower limbs and
c some other related complications. This led to his
prolonged hospitalization. He was discharged from the
hospital completely paralyzed. He , therefore, required
continuous physiotherapy and nursing care.
D
Respondent No. 1 filed a complaint before National
Consumer Redressal Commission, alleging utter and
j..
complete negligence on the part of the doctor who· had
operated on him. The negligence was alleged at three
stages i.e. before, during and after the operation. He made
a claim of Rs. 4,61,31,152/-. The appellant-hospital and the
E doctors denied the allegations. The State Government
also disowned any liability. The Commission held that
there was negligence and deficiency in service on the part
of the hospital at all stages of the case i.e. at pre-operative
)-
stage, operative stage and post-operative stage.
'
F However, it negated complainant's plea that no consent
for the excision of tumour had been taken, holding that
prior implied consent had been taken. The Commission
directed payment of compensation of Rs. 14 lakhs. It also
.._
granted compensation of Rs. 1.5 lakhs to the parents of
G complainant. Hence these cross-appeals.
.....,;..
Disposing of the appeals, the Court
HELD: 1.1. The attending doctors were seriously
remiss in the conduct of the operation and it was on
H account of this negligence that the Paraplegia had set in.
...
,./;
l
,
NIZAM'S INSTITUTE OF MEDICAL SCIENCES v.
315
PRASANATHS.DHANANKA
,.
They were also seriously remiss in not associating a
A
neuro-surgeon at the pre-operative as well as at the stage
of the operation. [Paras 27 and 33] [357-A; 362-E-F]
,.
1.2. Complete investigations prior to the actual
operation had not been carried out. The main plea of the
8
complainant is that the pre-operation examinations had
~
revealed a situation which required the intervention of a
Neuro Surgeon. The case of respondent-doctor however,
is that the involvement of the vertebral column had been
revealed only after the removal of the tumour. The c
assertion of the doctor is incorrect. In the pre-operative
discharge record, dated 19th September 1990 ( Annexure
P-29) there is a reference to a mass lesion in the left upper
chest with erosion of ribs and vertebrae and no masses
...
anywhere else. This document has to be read in
D
conjunction with Annexure P-27, a discharge record
dated 19th May 1991 wherein it was specifically recorded
that during the operation a huge tumour had been
....,
noticed in the left hemithorax with the second and third
ribs eroded and that the vertebral body was eroded and
..,,,
the tumour mass along with extensions into chest wall
E
and the fourth rib were all excised. These two documents
....
when read together belie the respondent-doctor's
statement in his cross-examination that the erosion had
,
'
been revealed for the first time after the tumour had been
-
removed. It is also clear from the document P-30, a letter
F
addressed.by the Director of the appellant-hospital to the
-(
Director General, Military Hospital that after the removal
of the tumour, the intra spinal extension had been
--{
revealed. It has been the positive case of the complainant
that had an MRI or Myclography test been carried out, the
G
~
possibility that the surgery was not required could have
been revealed. [Paras 12, 13 and 15] [337-F-H; 338-A-C;
339-A-B; 340-C]
f
"Diagnosis and Treatment Options for Neurofibromas"-
H
---------,
-.
'
r
J
316
SUPREME COURT REPORTS
(2009) 9 S.C.R.
.;
·1A published by Robert R. Chase, M.D., Stephen Bosacco, M.D.,
Richard Levenberg, M.D.; "Principles of Surgery" Sixth Edition
by Seymour I. Schwartz, M.D.;"Chest Wall Tumours" in
"Glenn's Thoracic andCardiovascular Surgery" (Ed. Arthur E.
r
'+--
Baue, et al), Sixth Edition, Volume -II, referred to.
B
1.3. It is evident from the cross-examination of the
complainant that no consent for the operation had been
+-·
taken. Moreover, even though the record of the case had
been produced before the Commission, it was with some
c reluctance and after several specific orders, but the
written consent which had allegedly been taken is not a
part of the record. It is equally significant that in the
~
written submission~ which had been filed, a copy of the
consent form of appellant-hospital has been appended
"
D
but not the actual consent taken from the complainant. It
must, therefore, be held that the withholding of the
,.
aforesaid document raises a presumption against the
appellant-hospital and the attending Doctors. The
consent given by the complainant for the excision biopsy
cannot, by inference, be taken as an implied consent for
E a surgery (save in exceptional cases) [Para 17] (340-G-H;
~
341-A-B]
Samira Kohli vs. Dr. Prabha Manchanda and Anr. (2008)
...
2 sec 1, relied on.
".'_;
F
,
-
1.4. It is clear from the evidence in the instant case
that there was no urgency in the matter as the record
l .
shows that discussions for the deferment of the
proposed excision biopsy had taken place between the
G
complainant, his parents and the doctor in the OPD and
the, consent for the procedure had been obtained. Also,
, any implied consent for the excision of the tumour cannot
// be inferred. [Para 19] (344-F-G]
./
/
1. 5. Respondent-doctor's evidence shows a great
----
measure of negligence in the operation. In his affidavit,
'
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\.
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NIZAM'S INSTITUTE OF MEDICAL SCIENCES v.
317
PRASANATHS.DHANANKA
he has stated that if it had been found that the tumour had A
penetrated into the spinal column, the patient would have
been referred to a Neuro Surgeon as well. This statement
itself when read with the incomplete diagnostic
procedures that had been adopted, show that had the
necessary tests been performed, the fact that the tumour 8
had penetrated into the vertebral column, would have
been revealed. The doctor further goes on to say that it
was not a case of interference with the spinal cord and
in justification he has stated that after operation of the
tumour had been removed a Neuro Surgeon had been c
called in and on examination he had noticed onl}' a bony
erosion and no involvement of the spinal cord. This halfbaked diagnosis at the stage of the operation only after
the excision of the tumour does no credit to the Doctor.
It is also significant that the operation record shows that D
the tumour mass had extended into the inter-vertebral
foramen and that there was an opening one cm in size in
the vertebral body exposing the spinal cord. In a case of
a tumour in the posterior mediastinal, the possibility of the
extension of the tumour into the foramen and the vertebral
E.
column must be kept in mind and a Neuro Surgeon must
be associated with the diagnosis and the actual
operation. [Para 25] [349-G-H; 350-A-C; 355-C-D]
"Central Neurogenic Tumours of the Thoracis Region" by
Farid M. Shamji, M.D., FRCSC, Thomas R. Todd, MD,
F
FRCSC, Eric Vallieres, MDFRCSC, Harold J. Sachs, MD
FRCSC, Brien G. Benoit, MD FRCSC; Article "The Principles
of Surgical Management in Dumbbell Tumours" by Yuksel M,
et al, Glenn's Thoracic. and Cardiovascular Surgery, Sixth
Edition, Volume II; Harrison's General Principles of Internal G
Medicine 11th Edition, Chapter 214 titled Diseases of the
Pleura, Mediastinum and Diaphragm, at pages 1127 and
1128, referred to.
~
1.6. The Tribunal has also found that the complainant
H
318
SUPREME COURT REPORTS
[2009] 9 S.C.R.
A
had to undergo great agony and inconvenience for lack
of proper post operative medical care. No specific case
has been spelt out on this score and ·only general
observations, stemming from the complications arising
out of an operation gone wrong, have been made. [Para
B
34] [362-G-H]
1.7. In a case involving medical negligence, once the
initial burden has been discharged by the complainant by
ma.king out a case of negligence on the part of the
C hospital or the doctor concerned, the onus then shifts on
to the hospital or to the attending doctors and it is for the
hospital to satisfy the Court that there was no lack of care
or diligence. (Para 32] (361-H; 362-A-B]
Savita Garg (Smt.) vs. Director, National Heart Institute
D (2004) 8 SCC 56, relied on.
E
_ Jacob Mathew vs. State of Punjab and Anr. (2005) 6 SCC
1; State of Punjab vs .. Shiv Ram and Ors. (2005) 7 SCC 1,
referred to.
2. It is not correct to say that in the face of
complicated questions of fact involving medical
procedures; it was inappropriate for the Commission to
have entered into the dispute and that the matter ought
to have been relegated to the civil court. It appears from
F
the record that appellant did not, at any stage, seriously
challenge the propriety of the Commission going into the
dispute and even consented to the recording of the
evidence by the State Commission. The Appellant had
also made a request that a specialist from AllMS, New
G Delhi be called so that the question of negligence, if any,
could be properly investigated; but the deponent further
stated that he had no objection if the Commission did not
propose to follow this procedure. A similar option to name
some expert witness or witnesses was given to the
H
r
NIZAM'S INSTITUTE OF MEDICAL SCIENCES v.
319
PRASANATHS.DHANANKA
).
complainant who, accordingly, on an application A
proposed the name of a doctor who was examined as a
witness. The record also reveals that after arguments had
been concluded and two weeks' time had been given to
the parties to file written submissions, an application had
been made to summon an expert witness from the AllMS.
B
This application had been declined. Therefore, the
remarks against the procedure followed by the National
Commission are uncharitable and uncalled for. [Paras 28
and 31] [357-8; 361-8-F]
Dr. J.J. Merchant and Ors. vs. Shrinath Chaturvedi (2002) c
6 SCC 635; Indian Medical Assn. vs. V.P.Shantha and Ors.
(1995) 6 sec 651, relied on.
3.1. As regards compensation a total sum of Rs. 15.5
Lakhs has been determined payable by the appellant. D
Before the Commission, the complainant assessed his
claim at a little over Rs. 4.61 crores. The complainant, is
now claiming about 7.50 Crores as compensation under
various heads. He has, in addition sought a direction that
a further sum of Rs. 2 crores be set aside to be used by E
him should some developments beneficial to him in the
medical field take place. Some of the claims are untenable
and are rejected. However, the claim with respect to some
of the other items need to be allowed or enhanced in view
of the peculiar facts of the case. [Paras 36 and 37) [363F
E-G]
3.2. The complainant is gainfully employed as an IT
Engineer and as per his statement earning a sum of Rs.28
Lakh per annum though he is, as of today, about 40 years
G
of age. The very nature of his work requires him to travel
to different locations but as he is confined to a wheel
chair he is unable to do so on his own. His need for a
driver cum attendant is, therefore, made out. The
complainant has worked out the compensation under this
(
head presuming his working life to be upto the age of 65 H
320
SUPREME COURT REPORTS
[2009] 9 S.C.R.
A
years. As per the Court, a period of 30 years from the date
of the Award of the Commission i.e. 16th February, 1999,
rounded off to 1st March, 1999, would be a reasonable
"' ..
length of time. A sum of Rs.2,000/- per month for a period
of 30 years (rounded off from 1st of March 1999) needs
B
to be capitalized. Accordingly a sum of Rs.7.2 Lakh is
awarded under this head. [Para 37] [363-G-H; 364-A-C)
+
3.3. The complainant has also sought a sum of
Rs.49,05,800/- towards nursing care etc. The amount as
c claimed is excessive. Rs.4,000/- per month to the
appellant for a period of 30 years making a total sum of
\
Rs.14,40,000/- is granted under this head. [Para 37] [364-
-)
C-E]
..
3.4. A Claim for a sum of Rs. 46 Lakhs towards
D
physiotherapy etc. at the rate of Rs.4,000/- per month, is
j_
reduced to Rs.3,000/- per month and award this amount
for a period of 30 years making a total sum of
Rs.10,80,000/- [Para 37) [364-E]
E
3.5. As some of the medical expenses that had been
incurred by the complainant have already been defrayed
by the employer of the complainant's father, the Court is
disinclined to grant any compensation for the medical
I
~ .
expenses already incurred. However, keeping in view the
F
need for continuous medicare which would involve
expensive medicines and other material, and the loss
towards future earnings etc., a lump sum payment of
Rs.25/-lakhs is directed under each of these two heads
making a total of Rs.50 lakhs. [Para 37] [364~E-G]
G
3.6. A payment of Rs.10 lakh is directed towards the
pain and suffering that the appellant has undergone. The
~
total amount thus computed would work out to
-
Rs.1,00,05,000 (Rs.1 crore 5 thousand) which is roun~ed
off to Rs. One Crore plus interest at 6% from 1st March, -
H
E-1999 to the date of payment, giving due credit for any
~
-
,
. ~
~-
~
....
__. ....
~
. ·1
.
j
NIZAM'S INSTITUTE OF MEDICAL SCIENCES v.
321
PRASANATHS.DHANANKA
compensation which might have already been paid. [Para A
37] [364-G-H; 365-A]
3.7. The claim for a sum of Rs.2 crore to be put in
deposit to be utilized by him in case some developments
in the medical field make it possible for him to under90 B
further treatment so as to improve his quality of life. Thjs
claim is unjustified and hypothetical and is declined.
[Para 38] [365-B]
3.8. The Court has to strike a balance between the
inflated and unreasonable demands of a victim and the c
equally untenable claim of the opposite party saying that
nothing is payable. Sympathy for the victim does not, and
should not, come in the way of making a correct
assessment, but if a case is made out, the Court must not
be chary of awarding adequate compensation. The D
"adequate compensation" must to some extent, be a rule
of the thumb measure, and as a balance has to be struck,
it would be difficult to satisfy all the parties concerned. It
must also be borne in mind that life has its pitfalls and is
not smooth sailing all along the way as the hiccups that E
invariably come about cannot be visualized. [Para 39]
[365-C-E]
3.9. It is often found that a person injured in an .
accident leaves his family in greater distress, vis-a-vis a F
family in a case of death. In the latter case, the initial shock
gives way to a feeling of resignation and acceptance, and
in time, compels the family to move on. The case of an
injured and disabled person is, however, more pitiable
and the feeling of hurt, helplessness, despair and often
G•
destitution enures every day. The support that is needed
by a severely handicapped person comes at an
enormous price, physical, financial and emotional, not
only on the victim but even more so on his family and
attendants and the stress saps their energy and destroys
their equanimity. [Para 39] [365-F-H; 366-A]
H•
322
SUPREME COURT REPORTS
[2009) 9 S.C.R.
A
3.10. The compensation has been computed keeping
in mind that his brilliant career has been cut short and
there is, as of now, no possibility of improvement in his
condition, the compensation will ensure a steady and
reasonable income to him for a time when he is unable
B to earn for himself. [Para 39) [366-A-B)
3.11. It is not correct to say that the proper method
for determining compensation would be the multiplier
method. The kind of damage that the complainant has
C suffered, the expenditure that he has incurred and is likely
to incur in the future and the possibility that his rise in
his chosen field would now be restricted, are matters
which cannot be taken care of under the multiplier
method. [Para 40) (366-C-D]
D
3.12. The complainant's parents would be entitled to
the sum awarded to them by the Commission. [Para 41]
(366-E]
Case Law Reference:
E
(2oos) 2 sec 1
Relied on.
Para 17
(2005) 6 sec 1
Referred to.
Para 20
(2005) 1 sec 1
Referred to.
Para 21
F
(2002) 6 sec 635
Relied on.
Para 29
(1995) 6 sec 651
Relied on.
Para 30
(2004) s sec 56
Relied on.
Para 32
G
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4119 of 1999.
From the Judgment -& Order dated 16.2.1999 of the
National Consumer Disputes Redressal Commission, New
Delhi in Original Petition No. 124 of 1993.
H
;..
.
...
.,._
'
.
...
NIZAM'S INSTITUTE OF MEDICAL SCIENCES v.
323
PRASANATHS.DHANANKA
"
WITH
A
C.A. No. 3126 of 2000.
~"""'
Anil Kumar, Tandale, P. Niroop, Chandan Kumar and M.R.
Sheshadri for the appearing parties.
B
~
r
The Judgment of the Court was delivered by
-
~
HARJIT SINGH BEDI, J. 1. This judgment will dispose
of Civil Appeal No 4119 of 1999 and Civil Appeal No. 3126 of
2000 filed by the complainant, Prasanth S. Dhananka . The c
facts are as under :
..
2. The respondent Prasant S. Dhananka ( hereinafter
called the "complainant"), then 20 years of age and a student
of Engineering, complaining of recurring fever was examined
.;,
in the hospital run by the Bharat Heavy Electricals Limited as D
his father was employed with that Organisation. As the cause
of the fever could not be identified, he visited the appellant -
Nizam Institute of Medical Sciences (NIMS) on 9th September,
1990 in the evening OPD. He was examined by one Dr. Ashish
Boghani, a Chest and Tuberculosis Specialist and was advised E
_.
to undergo on ultrasound guided biopsy for Neurofibroma, an
. 1
innocent tumour, after an X-ray revealed a mass in the left
hemithorax with posterior mediastinal erosion of the left 2nd,
3rd and 4th ribs. As several attempts at Fine Needle Aspiration
Cytology (FNAC) under ultra sound guidance did not give any F
conclusive evidence as to the nature of the mass detected in
the X-ray examination, the complainant was referred (on 5th
October, 1990) for further examination to Dr. U.N. Das, who
suggested another attempt at the same procedure but under
..
C.T. guidance. This test too did not show any lesion on which G
...
..
Dr. U.N. Das suggested that he undergo an excision biopsy .
and referred him to Dr. P.V. Satyanarayana, a Cardio Thoracic
Surgeon, who further advised him to report at the hospital on
16th October, 1990 for allotment of a room. The complainant
--~ -
was admitted to the hospital on 19th October, 1990 and the
H
324
SUPREME COURT REPORTS
[2009] 9 S.C.R.
A
operation was performed on 23rd October, 1990 and the
tumour was excised. It appears that immediately after the
surgery, the complainant developed acute paraplegia with a
complete loss of control over the lower limbs, and some other
related complications, which led to prolonged hospitalization
s
and he was ultimately discharged irom the hospital on 19th May,
1991 completely paralyzed with no change in his sensory
deficit. The discharge record also shows that the patient
required continuous physiotherapy and nursing care on account
of infection of the urinary tract and the development of bedC
sores etc. It is the case of the complainant that after his
discharge from NIMS, he visited several other hospitals seeking
relief, but to no avail. On 11th May, 1991 the complainant's
father requested NIMS for a detailed report so that his son's
case could be discussed with experts from other developed
D
countries· so as to improve his quality of life. No reply was,
however, forthcoming despite a reminder. Another letter dated
12th November 1991 also drew no response. Completely
frustrated, the complainant filed a complaint before the National
Consumer Redressal Commission (hereinafter referred to as
the "Commission") on 5th April, 1993 alleging utter and
E
complete negligence on the part of Dr. P.V. Satyanarayana and
the other attending doctors and also making NIMS vicariously
liable and the State of Andhra Pradesh statutorily liable for the
negligence of the doctors concerned. Allegations was primarily
levelled against Dr. P.V. Satyanarayana for negligence before,
· F
during and after the operation. It was alleged that the medical
record did not indicate any immediate danger to the
complainant's life and health and that his father had pleaded
with the doctors that the operation be postponed till such time
he could complete his engineering degree course. It was further
G
alleged that the doctors had not carried out the required preoperative tests which were available in NIMS itself and that the
complications which could possibly flow as the result of an
excision biopsy had not been spelt out to the complainant prior
to the procedure. It was also submitted that operating on a
H
neurofibroma or a schwannoma which had neurological
(
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y
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NIZAM'S INSTITUTE OF MEDICAL SCIENCES v.
325
)<
?RASANATH S. DHANANKA [HARJIT SINGH BEDI, J.]
implications as well, warranted the involvement of a Neuro
A
surgeon but no such opinion was sought before the surgery. It
was also pleaded that the consent that had been taken was only
for the purpose of an excision biopsy which was an exploratory
procedure, but Dr. Satyanarayana had carried out a complete
-
excision removing the tumour mass and the fourth rib thereby
B
-
~
destroying the inter-costal blood vessels leading to paraplegia
and had a Neuro-surgeon been associated with the operation,
this problem could well have been avoided. The complainant
also alleged that negligence in post-operative treatment and
care had led to bedsores, severe pain, and high temperature c
and frequent and unnecessary exposure to X-rays which could
be a potential hazard later in life. He accordingly claimed
compensation as follows:
(A)
SPECIAL DAMAGES (PECUNIARY)
D
1.
Loss of future earnings
Rs.89, 17,200
(Annexure XI)
2.
Present burden of expenses
Rs. 3,38,604**
-i
[Annexures IV(a) to(d) ]
E
3.
Damages on account of the
Rs. 30,34,930
-t
complainant by father, mother,
younger brother & maternal Uncle
II'
[Annexures VII, VIII, IX & X]
4.
Prospective burden of expenses Rs. 3,00,00,000
F
(Annexure-XI I)
...
B)
GENERAL DAMAGES (NON PECUNIARY)
____:::
Pain and suffering, loss of amenities & Rs.38,30,000
#
,.
Enjoyment of life & shortening of life Expectancy.
G
(Annexures XIII, XIV, XV) - Rs.4,61,20,734
** (Later in his affidavit dated 5.2.94, this has been shown
"'·
as Rs.3,49,022 and the total claim as 4,61,31,152: the
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SUPREME COURT REPORTS
(2009] 9 S.C.R.
A
present burden of expenses includes an amount of
Rs.1,27,644/- paid to OPI and Rs.91,002/- to other
hospitals).
3. On notice several replies were filed by the respondents.
8
NIMS, Respondent no.1 before the Commission, filed a reply
on behalf of respondent Nos. 2 to 5 and denied the allegations
in the complaint and pleaded that there had been no negligence.
Respondent No.6 before the Commission i.e. Chief Secretary
Andhra Pradesh Government, disowned any liability and
C pleaded that it had absolutely no concern with the m·auer.
Several pleas on merits were also taken by the respondents.
It was pleaded that the provisions of the Consumer
Protection Act could not be attracted and that the complaint had
been made after a lapse of one and half years and was,
D therefore, an afterthought. It was also pleaded that reasonable
care had been taken in the treatment by doctors who were
highly skilled in their specialties and in this view of the matter,
the claim for compensation and that too running into several
crores, was not justified. The respondents' then traversed the
E facts of the case and pleaded that though the initial examination
of the patient ruled out the presence of a lymphoma which was
a malignant condition, the possibility of an undetermined
malignancy within a large area in the left thorax had to be
examined as a ber.ign lesion was unlikely to cause prolonged -
F fever along with erosion of the left 2nd, 3rd and 4th ribs as
shown in the X-rays' and as a rapidly growing benign lesion
could also cause erosion of the ribs, a biopsy of the mass to
confirm the diagnosis was essential to plan the future course
of action. It was further pleaded that a history of fever for about
G 15 days prior to admission with loss of appetite and weight
suggested that whatever be the nature of the lesion, benign or
malignant, its presence was taking its toll on the general
condition of the patient which required some minimal tests. It
was also pointed out that as four attempts at FNAC had not
H yielded any conclusive pathological diagnosis, the next best
NIZAM'S INSTITUTE OF MEDICAL SCIENCES v.
327
PRASANATH S. DHANANKA [HARJIT SINGH BEDI, J.]
alternative was to go in for an excision biopsy by thoracotomy
A
(an operation involving incising the wall of the thorax) which wqs
a test which could finally determine the nature of the mass. It
was, however, admitted that the complainant and his parents
had pleaded during discussions in the OPD for postponement
of the proposed excision biopsy to enable him to complete his
8
education but when it was explained to them that early
confirmation of the diagnosis to exclude the possibility of a
malignancy was essential, the parents had consented for the
surgery after they had been fully informed about all possible
risks and it had also been explained to them that after the body
C
had been opened up, a small piece of the mass would be
immediately sent for histological examination and that any further
procedure would be based on the report received therefrom. It
was further pleaded that after the thoracotomy had been
performed, a part of the tumour had in fact been sent for a
biopsy and the report had been received soon thereafter that D
the mass was benign but it was nevertheless decided to excise
the entire tumour as the 4th rib had eroded and it had been
found essential to remove the 2nd and 3rd rib as well and for
this purpose some inter costal blood vessels had also been
sacrificed. It was also submitted in addition, that as tumours
E
though initially benign can cause several medical complications
endangering the patient's life and can also turn malignant at a
later stage, it had been thought fit to remove the tumour along
with the involved ribs and that all care expected of doctors had
been taken and that it was only a cardiothoracic surgeon who
F
had the skill to perform such a surgery and that the help of a
neuro surgeon had to be taken if the tumour had any intra spinal
extension and as in this particular case there was no such
extension, the presence of a neuro surgeon was not required.
It was finally pleaded that all investigations before the operation G
had been performed and full medical care had been provided
. to the complainant at the post-operative stage as well.
4. Affidavits were filed as evidence by the parties in support
of their pleadings. As the complainant was (and is) a severely
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[2009] 9 S.C.R.
.. ,.-
>(
A
handicapped person and confined to a wheel-chair, the
'
, I
Commission directed, on consent of both parties, that the
.,
evidence be recorded by the President of the Andhra Pradesh
State Commission and the depositions thereafter transferred
to the Commission. In an affidavit dated June 1994 filed by
B
NIMS a request was made to invite specialists from the All India
.
'
.~
Institute of Medical Sciences, New Delhi so that the question
J-
.
of negligence, if any, could be properly investigated but the
affidavit also added that the deponent had no objection, if the
Commission did not propose to follow this procedure. The
. ,
complainant too was directed to file an application if he wished
I·
c to examine any expert medical witness in support of his pleas.
Y==
An application was accordingly filed on 22nd August 1994
proposing the name of Dr. A.S. Hegde, a Neurosurgeon;
,..----
'"r
practicing in Bangalore and he was duly summoned and his
.:..--
D statement recorded by the President of the State Commission
-4
at Bangalore. On 19th September 1996, the counser for
respondent Nos. 1 to 5 undertook to produce the entire record
before the Commission but it was noticed on 25th April 1997
(when the case came up for hearing) that the record had not
E
been submitted. The Commission accordingly directed that the
~
record be filed that very day. The case was finally heard on 4th
'·
September 1998 and after arguments had been concluded, the
~
parties were given two weeks time to file written submissions.
>-- -
The Commission declined (at this belated stage) to accept the
prayer of some of the respondents made on 5th October 1998
lF
( i.e. after arguments had been concluded) to summon experts
from the AllMS as Court witnesses.
5. During the course of arguments before the Commission,
allegations pertaining to negligence at different stages, that is,
G before, during and after the operation, were raised. The main
contention of the complainant was that preMoperative diagnostic
~· ...
investigation had not been fully carried out and after four futile
attempts at needle biopsies had not given any conclusive result,
a C.T. Scan or an MRI by an experienced Radiologist would
H have revealed the existence of the tumour and that in any case,
'"
'
NIZAM'S INSTITUTE OF MEDICAL SCIENCES v.
329
...
. PRASANATH S. DHANANKA [HARJIT SINGH BEDI, J.]
;.
since Neurofibroma or Schwannoma tumours were basically A
neurological in nature, the complainant ought to have been
referred to a Neurophysician and if necessary to a
Neurosurgeon. The respondents, however, pleaded that the
investigations relating to biopsies were to be conducted by a
Radiologist and not by a Surgeon and that the complainant had B
~
been referred to a cardio - thoracic Surgeon as the tumour was
in the thorax and that further investigations by an MRI were not
necessary as sufficient information about the extent of the
tumour had already been revealed. On the basis of these broad
facts, the Commission went into the question as to whether the c
consent for the operation for the removal of the tumour had been
obtained from the complainant or his attendants. The
Commission observed that admittedly some discussion had
taken place between Dr. Satyanarayana and the complainant
)...
and his parents about the possibility of deferring the operation D
till the completion of the complainant's education but after Dr.
Satyanarayana had explained the gravity of the situation to
them, they had impliedly given their consent for the operation.
The Commission then examined the question of negligence at
the stage of the operation itself on 23rd October, 1990 and E
observed that the record of the case showed that there had
been erosion of the ribs and this had been confirmed during
~
, the operation which indicated that the tumour had spread into
the spinal area and as this required the intervention of a
Neurosurgeon, the neglect in associating one was clearly a case
F
of negligence. The Commission also noted that a
Neurosurgeon had, in fact, been called in though at a belated
stage. The Commission finally went into the question of
negligence at the post-operative stage and the plea of the
complainant that lack of care had led to bed sores, very high
G
fever and other related complications, and rendered its opinion
-
on this aspect as well.
6. The Commission, in its order dated 16th February,
1999 concluded as under:
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A
"From the aforesaid discussion, we are clear in our mind
that there was negligence and deficiency of service on thepart of the OPs in the different stages of the case.
(i)
OP 2 had stated that had he known pre-operatively
B
about the extension of the tumour into intervertebral
foramen, he as a CT surgeon would not have
chosen to deal with it and that on noticing vertebral
erosion while operating, he requested OP3 into the
theatre. Thus, according to OPs cases of vertebral
erosion and/or extension into intervertebral
I
c
foramen, warranted the performance of surgery by
the neurosurgeon along with the CT Surgeon.
(ii)
There was information pre-operatively before both
OP4 and OP2 about vertebral erosion at T 4 level
D
and affectation of vertebrae. On the basis of this
A_
information alone, OP4 should have referred the
case to the neurosurgeon as well as to the CT
Surgeon; instead, he had referred only to the CT
Surgeon. When the case was referred to OP2 by
E
OP4, OP2 should have himself discussed the case
with OP3, the neurosurgeon, who was also the
Director of the Institute at the relevant time, in view
of the aforesaid clinical information, and the team
~·
of OP2 and OP3 should have planned and
F
performed the surgery. This, however, was not
done.
(iii)
Not only did they fail to utilize the available preoperative clinical information, OP4 and OP2 also
G
failed to conduct necessary pre-operative
diagnostic tests like MRI and myelogram which
~
•
would have provided the information pre-operatively
on the extension of the mass into intervertebral
foraman and which information would have even
according to OP2 brought the neurosurgeon as the
H
prime surgeon. This failure on the part of OP4 and
~
NIZAM'S INSTITUTE OF MEDICAL SCIENCES v.
331
PRASANATH S. DHANANKA [HARJIT SINGH BEDI, J.]
OP2 deprived the Complainant of the services of
A
neurosurgeon in the entire surgery right from the
beginning.
(iv)
After failing thus miserably in the pre-operative
stage, there was negligence in the operative stage
too. Although the surgery was admittedly to know
about the pathology of the tumour, almost the entire
tumour seems to have been excised before
knowing its pathology as a benign Schwannoma.
We had earlier noted that some Schwannoma form
dumbbell extensions through the inter-vertebral
foramen, and there is admission by OP2 that he
noticed extension into intervertebral foramen.
Although the practical significance of distribution of
nerves in Schwannoma which enabled its removal
without transaction of nerves was admitted, yet two
inter-costal vessels were sacrificed in the surgery.
(v)
We have already noted that the case records were
not produced by Ops until they were again directed
to do so through our Order dated 25.4.97. Thus, the
medical expert who was examined in 1994 had
based his views on discharge summary, evening
special clinic record, pre-operative X-rays and CT
Scan reports, post-operative X-rays, CT Scan and
MRI. The case records containing the copy of
discharge record which varied from the original
discharge record, the OPD morning clinical record,
the operation notes, the histopathology report were
submitted by the OPs only after April, 1997 and
these records contained vital information regarding
erosion of vertebra and extension of tumour into
intervertebral foramen etc. There is force in the
Complainant's allegation that there was
suppression of vital information and only half
information made available to the medical expert
B
c
D
E
F
G
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[2009) 9 S.C.R.
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,,
A
witness which allegation has not been rebutted by
the Ops. Thus. the medical witness's deposition is ··
to be deemed to have been based on incomplete
data.
B
(vi)
It is also found that the operating surgeon OP2 and
the neurosurgeon OP3 who joined at the end of the
surgery left the theatre without meetmg the anxious
j.
parents waiting outside the operation theatre from
9 A.M. to 12.45 P.M. and without appraising them
c
about the removal of tumour and the rib, the
pathological nature of the tumour for which purpose
the surgery was done etc. Tha parents came to
know from another attending doctor in the T.R.R. at
about 6 p.m., that day who reported that the
D
Complainant had come out of anaesthesia but that
he has got paraplegic. It was left to the shell_...
shocked father of the Complainant to collect OP2
and OP3 to know about the developments and the
condition of the patient; in effect, the parents could
meet these Ops only at about 10 P.M. that day. One
E
gets the impression that had these Ops know known
about the onset of paraplegia in the operation
theatre itself as they contended, they could haye
~-
normally come out of the operation theatre, met the
parents and relatives and reported about the
F
outcome of the surgery. It is difficult to brush aside
the feeling that as senior surgeons and faculty
members they would have not comprehended the
serious outcome of the operation which is perhaps
why they left without meeting the parents.
G
(vii)
OP1 as an institution failed to carry out its statutory
~
function of exchanging opinion on the case with
sister institutions in India and abroad for post
operative management to retrieve the patient from
H
the damage to the extent possible.
NIZAM'S INSTITUTE OF MEDICAL SCIENCES v.
333
PRASANATH S. DHANANKA [HARJIT SINGH BEDI, J.]
In the light of aforesaid, we hold that there was negligence A
on the part of OP1, OP2, OP3,0P4 and OPS and
deficiency of service to the Complainant - patient. Since
OP6 is. already represented through OP1 (acc0rding to
notification establishing the institute), we do not consider
it necessary to bring OP6 separately under the purview of B
the Complainant. In the result, OP1 to OP5 are liable to
pay the compensation as determined hereunder. Since,
however, OP1 is the institution in which OP2 to OPS are
employed, we hold that OP1 is singularly responsible for
payment of compensation. In the written submissions filed c
after arguments were concluded, Ops have observed that
should the Commission decide to award any
compensation, they reserve the right of making further
observations. We are of the opinion that OPs were at
liberty to make whatever submissions they wanted to make 0
on the point of quantum of compensation during the
arguments stage itself; at that stage. Ops only stated that
the claim was exaggerated and ill founded.