The medical and legal aspects of the case which the courts have totally omitted

The medical and legal aspects of the case which the courts have totally omitted :

The higher consumer commission and the Apex court did not go to the core issue of the matter under consideration, but relied on the orders of the lower courts Maharashtra Medical Council , Medical Council of India, false and misrepresented statement of the operating surgeon and have dismissed the case. Thus this so very complicated medical matter has been finalized and dismissed at all levels without obtaining opinion from any committee of expert Uro surgeons and Neurologists.

1) I and my mother with great hopes and complete faith in the judiciary of this country, wish that the facts of the case be heard at the world level and also the case be decided on the basis of the report of an expert committee.

2) This dismissal order of the State Commission is the best example of how doctors can easily mislead the commissions by bombarding them with complicated technical jargon, so that the commission does not even think of going into the depth of the matter. So, they tend to dismiss the case very superficially.

3)  In this case the haste on the part of the State Commission in dismissing the case was so much that it even did not verify whether the due protocol and technicalities were followed by the respondents or not. The State Commission did not follow the procedure laid down by the Consumer Protection Act to conduct the proceedings. It prematurely concluded that the complaint was without any merit even in absence of written statements from any of the opposite parties! In fact in absence of written statements the allegations made by the complainant should have been deemed to be admitted. Instead, the State Commission preferred to dismiss the complaint. It also did not bother to seek any medical opinion from an expert committee even after the request of the complainant.

4) The National Commission, while commenting on the functioning of State Commission has mentioned, “Without allowing the stage of completion of pleadings and evidence in case of medical negligence, perhaps it was premature and on the verge of prejudging the issue to say that the complainant has failed to prove his case.” 

5) It is strikingly evident that the State Commission even did not bother to call for the medical records of the case. As per law, when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. This matter being related to medical negligence, the doctor and the hospital had the knowledge and hence the burden of proving was upon them. However State Commission completely ignored this provision of law.

6) It was the duty of Dr. Santosh Karmarkar to disclose to the patient that the investigation facilities for adults may not be available in this hospital.

7) Dr. Karmarkar had told him that it was the hospital meant for children, but with special permission complainant could be treated or operated in the hospital itself.

8) It is not the question only of permission, but the facilities for investigation of adults too.

9) The State Commission readily accepted the contention by the OP that ‘the numbness and pain in lower limbs was recovering and that these are temporary and fleeting effect”. However it failed to consider the following issues:

10) It was not only numbness and pain, but total loss of sensation and increase in the level of paralysis of muscles below knee.

11) The State Commission should have probed:

a) Whether these complications (of loss of sensation and paralysis of muscles) were          anticipated by the doctor in an adult case of spina bifida?

i.    What preoperative precautions did he take to prevent these complications from occurring?

ii. What intra operative precautions were taken to prevent these complications from occurring?

iii. What was the careless/ negligent step (either before or during the surgery) that led to this complication?

iv.   Whether the doctor/ anesthetist/ hospital realized this particular careless/ negligent event/ step before/ during surgery immediately after it occurred/ happened?

v.   Whether the team (surgeon/ anesthetist/ other employees of hospital) took any immediate steps to prevent further damage?

vi.  Whether the team sought/ or tried to seek consultation of a qualified urologist/ neurologist immediately after detecting the occurrence of the complications?

vii.   What steps were taken to minimize the damage caused?

b)  The symptoms were not temporary and fleeting. However, the State Commission did not make any attempt to verify/ ascertain the facts. It simply believed the OPs! This is against the law of natural justice. Just because the OPs are doctors, should not have caused the State Commission to blindly believe them. The State Commission believed in these false pleadings inspite of the patient submitting the certificates of physical impairments from different Government organizations and senior consultants.

            12) EMG/ NCV tests performed:

a)           It was carried out on 27/01/2003. It suggested degenerative bilateral L5, S1, S2 radiculopathy.

b)           On reading the contents of para 3(E) 5, it becomes abundantly clear that the contentions by the OP No. 1 in this regard and the reliance kept by the Hon’ble state commission on these contentions are totally wrong and ill founded. “

i.       The OP had contended that: “Report of EMG/ NCV test performed and its findings are only as expected in any such case of spina bifida and do not in any way relate to complications of surgery.”

ii.    However, the loss of sensory and motor function of the nerves and muscles mentioned in the EMG/ NCV findings i.e. “Absent motor conduction in Left Tibial Nerve, Absent Sensory Conduction in Lt Sural Nerve, Electrically silent response in Left and Right Tibialis Anterior and Gastrocnemius” were all new findings that occurred postoperatively.

iii.    All these muscle functions and sensations were present before surgery. The muscle power and sensations were lost immediately after the surgery. The clinical notes to that effect are documented in the records maintained by the OPs themselves.

iv.  Thus the EMG/ NCV study in fact establishes the cause and effect relationship between the surgery and the sensory and motor loss.

c)           The State Commission erred in believing the false contention of the OP that, “the same findings as mentioned in this report would have been found in the normal course even if the surgery had not been done.” This is absolutely wrong in this case, because the pre surgical sensory and motor loss is also documented and is on record. It is much less and limited as compared to the post surgical loss as established by these EMG/ NCV test.

d)     In fact, this EMG/ NCV report is the document which clearly and scientifically establishes the increase in the degree and extent of sensory and motor loss after surgery. However, because of misleading by the OP and non-application of mind by the Hon’ble State Commission this important document which proves the allegation by the complainant was erroneously been projected and accepted in defense of the OP.

13) The OP’s contention that, “the subjective complaints of pain and numbness developed by the patient later (not as a part of the post-operative recovery period) were immediately attended and adequately attended to and necessary opinions of concerned doctors were taken.” Was also wrongly accepted by the Hon’ble State commission, without verifying its scientific veracity.

a)           First and foremost, the OP has labeled the complaints as subjective, however the same complaints were confirmed objectively by more than one doctor on many occasions. Moreover, the cause of these complaints was also objectively confirmed by the EMG/ NCV test. So, the OP cannot minimize or dilute the severity of these symptoms by labeling those as mere ‘subjective complaints’.

b)    Secondly, these symptoms developed immediately after the surgery. With diminishing effect of general anesthesia, these symptoms were noticed. The evidence is available at multiple places in the clinical record. The neurologists have labelled the condition as “post epidural anesthesia neurodeficit in lower limbs”. This speaks volumes about the negligence caused during injecting the needle for introducing epidural catheter.

Will be continued further......