NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
FIRST APPEAL NO. 1231 OF 2014
 
(Against the Order dated 25/08/2014 in Complaint No. 03/2008 of the State Commission Kerala)
1. SREE CHITHIRA THIRUNAL INSTITUTE OF MEDICAL SCIENCES
THROUGH ITS DIRECTOR, THIRUVANANTHAPURAM,
...........Appellant(s)
Versus 
1. R. VIPINA CHANDRAN & 2 ORS.
MANIMANGALAM, CHAMAVILA, MELETHUMELE, MANIKANTESWARAM, P.O., VATTIYOORKAVU,
THIRUVANANTHPURAM
2. DR. GUPTA,
SREE CHITHIRA THIRUNAL, INSTITUTE OF MEDICAL SCIENCES,
THIRUVANANTHAPURAM,
KERALA
3. DR. MOORTHY,
SREE CHITHIRA THIRUNAL INSTITUTE OF MEDICAL SCIENCES,
THIRUVANANTHAPURAM
KERALA
...........Respondent(s)

BEFORE: 
 HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
 HON'BLE DR. S.M. KANTIKAR, MEMBER

For the Appellant :
Mr. Raghenth Basant, Advocate
Ms. Aditi Mishra, Advocate
For the Respondent :
For the Respondent No. 1 : Dr. Kylashanatha Pillay, Sr. Adv. with
Mrs. V. S. Lakshmi, Advocate
For the Respondents No. 2 &3: Proforma Parties

Dated : 21 Aug 2015
ORDER

 

DR. S. M. KANTIKAR

 

  1. The complainant, Shri R. Vipin Chandran, a driver by profession, working in Saudi Arabia, had a problem of diminution of vision.  He came to Kerala on leave, for three months and consulted Dr. Sahasranamam at Government Ophthalmic Hospital, Thiruvananthapuram.  Scanning was performed and then he was referred to Sree Chithira Thirunal Institute of Medical Sciences, Thiruvananthapuram (hereinafter referred to as ‘SCTIMS’)/OP 1, for further treatment.  Dr. A. K. Gupta and Dr. Moorthi at SCTIMS advised him for urgent surgery on the promise that he would regain 80% of lost eye sight.  The cost of surgery would be around 2.5 lakhs.  On such assurance,  the complainant agreed for the surgery and for mobilizing funds, he sold his dwelling house and land,  he received Rs.30,000/- from Prime Minister’s Relief Fund and Rs.5,000/- from Chief Minister’s Relief Fund.  The surgery was performed at OP 1, but his vision could not be restored.  He became totally blind.  Because of paucity of funds, the patient was discharged from OP 1, after executing a bond for payment of dues, that the complainant would pay the amount, within six months. The patient was referred to Aravind Eye Hospital, Madurai, who expressed their helplessness to the patient  because, the OP 1 placed coil inside the head of the complainant.   Hence, he became 100% blind.  Knowing this, the complainant initiated legal recourse through filing a complaint before the State Commission, Kerala and prayed for Rs. 25 lakhs, as a compensation.
  2. After considering evidence of parties, the State Commission allowed the complaint and directed the OPs 1 to 3 to pay Rs.10 lakhs as compensation and Rs.10,000/- as costs.
  3. Aggrieved by the order of State Commission, the petitioner/OP filed this revision petition.
  4. We have heard learned counsel for both the parties.  The counsel for the complainant argued that the optic nerve got atrophied, the whole procedure for coiling was unwarranted and patient lost whatever minute vision he had. Hence, it was negligence of OPs.
  5. Learned counsel for petitioner/OP argued that the complainant is not a consumer and patient was not treated for the defective vision, but the patient was treated for Arterio Venous Malformation (AV Malformation).  The patient was having Papilloedema both sides and pale disc. Dr. V. Sahasranamam  at Regional Institute of Ophthalmology, Trivandrum referred the patient to Neuro Surgery Department for evaluation and management.  The CT report done on 23.9.2004 revealed extensive  Arterio Venous malformation.   The Neuro Radiology department performed angiogram and found to have Dural Arterio Venous Fistula.  Hence, he was operated for coiling after proper informed consent.    Already, the patient had Optic Atrophy at the time when the complainant approached OP 1.
  6.  We have perused the Consent. It is a proper consent which gave every detail about the procedure, possible complications, risk etc. and it was signed by the complainant. We have perused the   expert witness, PW-2, Dr. Mahesh Kumar, Consultant, Ophthalmologist, at Aravind Eye Hospital, Madurai.  He had opined that the coiling procedure was not harmful, but even if coiling is done properly, vision can deteriorate in certain cases, on account of chronic intracranial pressure (ICT), leading to optic nerves atrophy. It depends upon the duration of the illness, prior to commencement of treatment.  If the coiling is not done in such a case, patient will not only lose vision, but brain complications may also result.  It can result in rupture of blood vessels or blockage of blood circulation in the brain.
  7. According to the evidence given by DW 2 -Dr. V. Sheshranamam, that, for AV malformation, coiling is an accepted procedure for treatment.  Coiling procedure is not to improve patient’s vision, but it is for closure of the abnormal vascular malformation.   He also expressed that due to raised ICT because of AV Malformation, the patient’s Optic nerve was in a bad condition, hence  was referred to SCTIMS.
  8. The expert opinion of DW-3, Dr. M. K. Mishra, Professor and HOD Neurology Department at AIIMS is relevant in this case. He also opined that AV fistula occlusion (closure) of the fistula is the most acceptable method is coiling. Further opined that, it is unpredictable regarding vision improvement after coiling procedure.
  9. Another letter of reference issued by Dr.A.K.Gupta of ‘SCTIMS’ to the Arvind Eye Hospital clearly mentioned about no contraindication of coiling procedure. The letter is reproduced as follows:

“This patient, Vipin Chandran 48/M (Hosp. No. 232207) is a case of dural fistula of posterior fossa with venous drainage in to cortical veins, cavernous sinus and ophthalmic veins.  There was significant venous congestion of the juxtasupraseelar areas which caused his visual deterioration.  He underwent coiling of the transverse sinus for the fistula.  Angiographically, there is complete closure of the fistula, but clinically there is no improvement of vision at present.  However the recovery of the vision may occur in future, but in view of the fundoscopic finding which suggests his optic atrophy, he is referred to Arvind Eye Institute for needful coiling of the transverse sinus for the fistula is not a contradiction for further treatment of any type of eye/eyeball.  Kindly evaluate his ophthalmic status and opine.”

 

 

  1. We have taken references from various medical literature and books on Interventional Neuroradiology, Neurology, and Ophthalmology. Accordingly, arteriovenous malformations (AVM) are tangled connections between arteries and veins in the brain or spinal cord. Without effective intervention, this abnormality can lead to catastrophic hemorrhagic stroke (brain bleed) and can be fatal.   it has to be treated in spite of the visual problems.  After procedure, the papilledema may progress and vision can even deteriorate following the procedure.
  2. In this context, counsel placed reliance upon few judgments of Hon’ble Supreme Court in case titled as Martin F. D’suza Vs. Mohd. Ishfaq I (2009) CPJ 32 (SC), State of Punjab Vs Shivaram 2005 (7) SCC 1 and the Bolam’s Test (1957) 1 WLR 582,586, it was held that doctors doing their duties with reasonable care would not incur liability, even if their treatment failed.  Bolam test laid down in the Jacob Mathew case, for determining liability for medical negligence is reiterated.  It also says that, simply because a patient has not favourably responded to treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of ‘res ipsa loquitur’.
  3. In Jacob Mathews Case (2005) 6 SCC 1 it was observed as;

When  a  patient  dies  or  suffers  some  mishap,  there  is  a  tendency  to  blame  the  doctor  for  this.   Things have gone wrong and, therefore, somebody must  be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every  case  in  his  professional  career but surely  he  cannot be  penalized for  losing  a  case  provided  he appeared in it and made his submissions.

 

  1. In the instant case, the patient was suffering from AVM. To save the life was more important, rather than the improvement of vision of the patient. Therefore, OP performed the operation for AVM by coiling method which was a correct line of treatment.  Even otherwise, there was very bleak chance of improvement of patient’s vision, because of optic atrophy.  Hence, we do not find any negligence on the part of OPs.
  2. On the basis of foregoing discussion, we allow the first appeal and dismiss the complaint. No order as to cost.
 
......................J
J.M. MALIK
PRESIDING MEMBER
......................
DR. S.M. KANTIKAR
MEMBER