04 February, 2016

Complainant alleged deficiency and negligence after her surgery in 2008, conducted based on an 'old MRI', gave her no relief; doc says the order is incorrect, with no medical experts' opinions

After a prolonged battle spanning seven years, a Solapur-based woman has won a case of medical negligence leading to deficiency of service against the city-based Poona Hospital and Research Centre, as well as a neurosurgeon attached with the hospital. The Pune District Consumer Disputes Redressal Forum has awarded her Rs 5.50 lakh as compensation in the matter in a recent order. It is alleged that because of this negligence, the complainant — now 45 years old — was forced to repeat a brain-related surgery at another city hospital, since the first procedure at Poona Hospital failed because it was conducted on the basis of a year-old magnetic resonance imaging (MRI) report.

The forum held the doctor responsible for this and asked both him and the hospital to pay the sum jointly to the complainant within the next six weeks — both parties have, however, denied the allegations and claimed that there had been no negligence or deficiency from their side.

Complainant Vaishali Sandeepkumar Kothari, the wife of a utensils dealer and a resident of Karmala in Solapur, had met with an accident in 2005.

Since then, she has been facing a problem maintaining physical balance in day-to-day functioning. Following to the suggestion of her family doctor, she was admitted in the Poona Hospital in April 2007 for a brain-related surgery under Dr Sachin Gandhi.

In her claim, Kothari alleges that on the day of the surgery, no fresh MRI was taken and a year old one was used. She said that while she paid Rs 1.11 lakh, there was no relief in store after the operation.

Soon, Kothari once again consulted the same family doctor, who on the basis of a new MRI, diagnosed that the cerebellar tonsils in her brain had not been removed in the previous surgery.

In May 2008, she claims she returned to Poona Hospital, where Dr Gandhi admitted that the previous treatment had been incorrect. She got herself admitted at the Kothrud-based Sahyadri Hospital later in the same year, where the concerned surgeon elaborated on the "negligence" in the earlier surgery. The procedure was repeated for Rs 1.57 lakh and after this, she started feeling better, she said.

Kothari filed a complaint with the consumer forum in 2009, demanding compensation for the mental agony and financial losses caused.

On the other hand, Dr Gandhi submitted that the case was a medically complicated one, adding that the claim of negligence was insufficient because there is a need to establish it by providing evidence, while emphasising that no expert report had been submitted to do so. "This is a case for the civil court, not the consumer court," he said, additionally denying that Rs 1.11 lakh had been paid by the complainant.

The doctor also submitted that Kothari's problem had not occurred due to an accident, but was a deficiency from birth that increased gradually. "The surgery was conducted to reduce the vacuum and ensure flow of fluid near the small brain. Additionally, Sahyadri Hospital was not made party to the case to clear its stand, which basically alleged that there had been a mistake in the earlier surgery."

Forum judge V P Utpat and expert members Kshitija Kulkarni and Mohan Patankar in their order observed that Dr Gandhi has admitted that the cerebellar tonsils were never removed during the surgery, although he still said it was successful. The court also observed the medical certificate and summary from Sahyadri Hospital stating that the first surgery was "incomplete".

The forum said, "The woman's family was illiterate when it came to medical knowledge, so it was the duty of the doctors to inform them about the consequences of the surgery, which was not done. She forced to undergo two surgeries and paid double the cost — sufficient to prove deficiency in service."

The forum also insisted that it has all the rights to hear cases of medical negligence according to recent Supreme Court judgments. It added, "It is true that no expert opinion was submitted, but the respondents have admitted to facts, which prove negligence."

In the final judgment, the forum awarded Kothari Rs 5.50 lakh for medical treatment expenses, mental agony and physical suffering, directing the doctor and hospital to jointly pay compensation to her within six weeks of receiving the order.

Advocate Likhit Gandhi, who represented Kothari, said, "We never claimed that the patient suffered because of the surgery, but we established that the problem of losing balance while walking was not cured by it. She was unnecessarily forced to undergo two surgeries due to Dr Gandhi's negligence."

Dr Gandhi told Mirror, "This is gross injustice. The decision of the court completely relied on the statements of non-medical persons. It was expected that the forum would at least call a jury of four neurosurgeons and take their opinion before a final order. The opinion given by the other hospital is nothing but professional rivalry. If she had come to me, I would have done the surgery again, which would have been the next step in her treatment in any case. Instead, we are facing this case."

He added, "The consumer court's contention that the MRI was old is wrong — in the medical field, the age of an MRI does not make a difference."

Dr Gandhi further clarified that if the tonsils had been removed, she would have faced physical disability — any experienced neurosurgeon would have had the same opinion, he claimed. "However, in this case, they clearly did not feel the need to take a third person's opinion," the doctor added.

█ It was the duty of the doctors to inform the woman's family about the consequences of the surgery, which was not done. She was forced to undergo two surgeries and pay double the cost