REASONS

Point No. 1) :- 

12.  Both the parties have filed their affidavit of evidence and the documents in support of their case.  The Forum has gone through the same and they were also brought to the notice of the Forum during the course of oral argument by both the parties.

13.    The Forum would be guided by the observations made by the Hon’ble Supreme Court in the case of Minor Margeh K. Parikh Vs. Dr. Mayur H. Mehta reported in AIR 2011 SC Page No. 249 and in the case of Kusum Sharma and Others Vs. Batra Hospital and Medical Research Centre and Others in Civil Appeal No. 1385 of 2001 decided on 10/02/2010 by the Hon’ble Supreme Court.

14. We feel that it would be important and useful to know how the reconstructive Micro Surgery is performed.  What we could gather about it by perusing record and from the submissions made before us, would be reproduced below.

There is one article on the record titled as Upper limb to Lower limb, Ulnar nerve transfer by G A Brunelli and G R Brunelli University of Brescia, Medical School Department of Orthopedics Italy.  We feel that in order to appreciate the rival contentions of both the parties and to understand the Micro Surgery it would be useful to reproduce its method as given in the above article.

“ The rationale is to cut the three main terminal motor branched of the ulnar nerve (first the motor branch for the flexor carpi ulnaris and flexor degitorum profundus of the 4^th and 5^th fingers, second the motor branch to the hypothenar and interossci  muscle, and third the motor branch for the adductor pollicis) and to transfer these branches to the motor branches of three main muscles of the hip – greater gluteus, the modius gluteus and the rectus anterior muscles, to supply three movements to the hip – extension, abduction, stabilization of the pelvis in the frontal plane and flexion. The ulnar nerve must be elevated with some surrounding soft tissue and microvessels.  The sensory branches have to be stained by methylene blue in order to avoid mistakes in connections. The nerve must be freed up to its origins from the cord and led to the hip by means of a zigzag approach on the lateral side of the trunk. The muscular nerves in the three above mentioned muscles must be found and connection with the three branches of the ulnar nerve done.

15.    Admittedly the surgery undergone by the Complainant was not a common one. There is nothing on the record to show what was established procedure for such type of surgery and where and on which points the Opponents have breached the same. In our view though the surgery performed on the Complainant Mohd Mustafa was not generally practiced in India or approved by the Medical council but that would not mean that it was prohibited and banned in India. The said type of surgery may be at the stage of development in India. Science is an experimental and progressive field. Whenever any technique or method is searched or discovered, then the results of it are observed over a period of time and after getting satisfactory results constantly then the same is approved and adopted.  Though the Reconstructive Micro Surgery was not approved in India but it was being practiced in Singapore, Italy and Opponent No. 1 gained experience to perform the same.

16.  Secondly it would be interesting to see what was the result of the Surgery performed by Dr. G. S. Sawhney on Shri. Mohd Mustafa Shaikh, Whether it was totally failure, partial failure or successful to some extend. The condition of the Complainant before Surgery was clearly and in detail mentioned by the Medical Officer of Gujarat Municipal Hospital.  The said documents are filed by Mohd Mustafa as annexure “C”.  The note dated 12/03/1998 in OPD papers shows the condition of Mohd Mustafa. It mentions the case of Mohd Mustafa as spastically.  Both lower limb spastic, the voluntary control at hip knee ankle on both side – nil, spastic city in flex group of muscle severe spastic. Bladder control : the patient does self catheterization. Bed Sore Present on Right trochentic region, sitting balance – poor to fair.  Patient was totally dependant in practically all A.D. As against the mobility it is mentioned as does not move by himself and does not have wheelchairs. These observation dated 12/03/1998 show that Mohd Mustafa was not able to move by himself, his sitting balance was also poor to fair and he was totally dependant and restricted to bed.

In people with long limbs, direct connection may be perfomed, in people with short limbs grafts may be needed, especially for connection with the proximal motor branch of the ulnar nerve or to reach the nerve of the rectus antcrior muscle.

We have done eight cases in rats and got function of the reinnervated  muscles.  Two ethic communittees  thoroughly examined the rationale and the experimental surgical technique and results and gave permission to transfer the operation in humans. We performed two operations using this protocol in the same patient with an interval of one year between.  While the first team was doing the connection, a second surgical team performed reconstructive surgery to palliate the damage at the hand by transferring the tendon of the flexor digitorum superficial is of the third finer to the adductor poolicis and that of the second finger, divided into four slips, on the first and second dorsal interossci and on the second and third volar interossci.”

17.  The condition of the patient after Surgery can be seen in the documents placed on record namely case papers, graphs and the letter of physiotherapist. The letter (E-mail) received from Mr. Paul Prasad by the Opponent which is dated 26/09/2005 mentions about the condition of the patient. It shows that the patient was made to walk assisted by calipers. The patient was made to stand using calipers. The patient was made to walk in paralel bar with assistance only in turning in front of Dr. Jacob. There is letter dated 24/12/2003 from Lilavati Hospital and Research Centre. The conclusion part of the letter shows that there was evidence of early reinnervation  bilaterally in the Gluteus maximus. There are graphs placed by Dr. G. S. Sawhney, on record along with written statement. They were taken on the same day and show the position of lhe semi noid tendinosis. The graph shows major difference in the left leg and the right leg. Besides the claim of Dr. G. S. Sawhney about the Surgery being  successful, there is the evidence of the physiotherapist Mr. Paul and documents from Lilavati Hospital to support the claim of  Dr. G. S. Sawhney.  The evidence shows that there was satisfactory recovery in the condition of Mohd Mustafa. He who was confined to the bed,   could walk with the help of calipers.  Hence in view of the above facts it can not be said that the Surgery was totally failure.  According to Dr. G. S. Sawhney Mohd Mustafa did not attend the 200 sessions as required.  This shows that though the health, of Mohd Mustafa was recovering, but he himself did not cooperate in the treatment by undergoing 200 sessions of physiotherapy. This shows that the Micro Surgery in fact was helpful in recovery of Mohd Mustafa. Hence it would not be proper to say that Dr. G. S. Sawhney was not having special skill in performing such type of Surgery, or that such Surgery was not effective in paraplegic patients.

18.   Mohd Mustafa had referred to the article published in the local daily newspaper Navakal giving the case history of one Yunus Mohd Qureshi, aged about 24 years resident of Surendra Nagar, Ahmadabad.  According to him after going through the article he came to know about this Surgery and contacted Opponent. Whatsoever, Mohd Mustafa does not claim that the facts given in the Newspaper are false.  Hence in our view the article in the Newspaper shows that Dr. G. S. Sawhney had operated on such person successfully.  Mohd Mustafa has not claimed that he had met said Qureshi and who denied about getting any relief and recovery from the said Surgery. Hence there is on record the evidence to show that one person had undergone said Surgery and he recovered from the said element. Advocate for Opponent Mr. Saluja in the course of arguments had denied of having any role in the publication of the article. It appears that Mohd Mustafa had his own vision about the time period and speed of recovery.  The letter from Mr. Paul shows that the recovery of the nerve is one mm per day.

19.  The learned Advocate Mr. Bane for the Complainant placed reliance of the observations made by the Hon’ble Supreme Court in the case of  V. Krishna Rao Vrs. Nikhil Super Specialty Hospital and other reported in (2010) 5 Supreme Court cases at page 533. The facts of the case show that the wife of the Complainant was suffering from fever and complaining of chill. She was not responding to the treatment and as the condition deteriorated she was moved to other Hospital but she expired. The Complainant had seen some articles in the saline bottles and also brought to the notice of hospital persons but to no effect. It was observed by the District Forum in that case that the case record was showing wrong treatment was being given.  The record showed that the patient suffered from malaria but was not treated for malaria.  Hence, in my view this citation would be of no use to the Complainant in this case.

20.  Advocate Bane also relied upon the observations of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in the Case of Smt. Ghanta Mohan Lakshimi Vs. Dr. C. V. Ratnaman and other reported in 2003 (3) CPR at page 103 (NC), On the observations of the Hon’ble Supreme Court in the case of Poonam Verma Vrs. Ashwin Patel and others reported in (1996) 4 Superme Court Cases at page 332.

21.  According to us the observation in the case of Smt. Ghanta are not useful to the Complainant in this case and the observations in the case of Poonam Verma show that the practitioner who was registered to practice under Bombay Homeopathic Practitioners Act, caused death due to administration of allopathic medicine.  Hence, this case will also be of no use in this case, as the facts differ widely.     

22.   The Forum had sought opinion from the expert committee and the report received is placed on record, it is dated 23/04/2010. It also shows that patient was counseled and explained about the technique and likely out come of the Surgery and the Surgery being experimental one.

23.  Thus considering, the facts of the case and the evidence of both parties and documents placed on record this Forum is of the view that the record does not show that there is any medical negligence on the part of the Opponent in treating Mohd Mustafa.  It appears that Mohd Mustafa did not follow the line of treatment namely under going physiotherapy sessions.

24.   In our view even if the Surgery performed would have been 100% failure still Mohd Mustafa could not have blamed Dr. G. S. Sawhney as he was made well aware that the Surgery was experimental one and the outcome is not predictable.  He choosed to take the chance under the circumstances. To sum up, it can be said that it is not the case of medical negligence but as per Mohd Mustafa it is totally unsuccessful Surgery.

25.     Hence we pass the following order.

ORDER

1.     The Complaint stands dismissed.

2.     Considering the facts of the case no order as to costs.

3.     The Copies of this order be sent by post to both the parties.

Place :- Mumbai.

Date :-  29/03/2014.