ORDER

SRI.H.R. SRINIVAS.  PRESIDENT

1.     This is the Complaint filed by the Complainant against the Opposite Parties (herein referred to as OPs) under section 12 of the Consumer Protection Act 1986 for the deficiency in service and medical negligence in treating the complainant and for compensation for Rs.15,00,000/- for causing her body pain, suffering mental agony, loss of her future life due to medical negligence and recklessness and for such other reliefs as the Hon’ble District Commission deems fit.

2.     The brief facts of the complaint are that; OP No.1 is a hospital and OP2, 3 and 4 are the doctors working in the said hospital.  The complainant for her second child delivery, got admitted to OP-1’s hospital managed by OP-2 on 12.03.2015 and the doctor performed elective lower segment caesarian section done by Gynecologist Dr. Nagendra Prasad OP.3 in this case under Spinal Anesthesia administered by Dr. Umesh Anesthelogist and OP-4 in this case. 

3.     After caesarian operation, the complainant was having severe pain in the back radiating to right lower limb, followed by inability to move the said limb although it appeared normal.  The same was complained to OP and for the 1^st three months, symptomatic treatment was given by the physician attached to oP1 hospital. At that time, she was residing with her mother in Kengeri and hence able to visit OP-1’s hospital on daily basis, though she was very tired, suffering from traumatic pain.  The pain in the right lower limb and the back never subsidized. She was unable to walk freely and was dragging her right foot.  ON 15.06.2015 herself and her husband visited Dr.Parashuram T Bavimani, Physician who advised the complainant to have the opinion of a neurologist and to underdo physiotherapy if required.  She consulted the neurologist attached to OP-1 hospital . After examining the details of the report casually and orally advised her to undergo nerve conduction test.  She was not given proper advise in OP-1 hospital.  Though OP-2, 3 and 4 were aware that the complainant had developed complication due to careless and negligent manner in which spinal anesthesia was administered by OP-4 Dr. Umesh, in order to protect their own interest, complainant was asked to consult other doctor, though op-1 was well equipped to look into the report and advise appropriate treatment. 

4.     The complainant approached Dr.Santosh, a neurologist attached to Santosh Diagnostic and Scan Center who on proper examination, diagnoized that the complainant is having right foot drop owing to negligence and wrong method adopted in administering anesthesia by OP and advised MRI scan of Lumbo Sacral Joint L5-S1 vertebral segment and nerve conduction study.  As an immediate measure of pain reduction process, DYna foot drop splint was advised by the doctor. In the nerve conduction study at Karthik Physiotherapy Center, it became evident that the complainant had suffered “right peroneal axonopathy” as a result of negligent reckless administration of anesthesia. She was initially advised electrical muscle stimulai and exercise therapy which was rigorously followed by incurring huge expenses.  Ultimately it did not give effective remedy and the pain subsisted.

5.     Then she went to neurologist at Sacra Hospital who advised nerve conduction study which again showed right peroneal axonopathy. The expert neurologist at the hospital advised her to undergo physiotherapy and opined that the reason for the medical condition of the complainant was due to negligence of OP-4 in administering spinal anesthesia before conducting LSCS. 

6.     OP-4 is duty bound to follow the standard procedure and take care of the complainant while administering the spinal anesthesia. In this case, there is a clear breach of carelessness and there is negligence on the part of the doctor and it is not an error of judgment.  OP-4 has not shown and taken necessary and reasonable care in administering the anesthesia leading to “right foot drop or right peroneal axonopathy” which made the complainant not able to walk freely, move her limb and has to trudge her foot while walking and balance her body weight. She has to depend on someone in the family for her all life needs and cannot even stand and cook food. She has become completely disable due to negligence of OP-4.  She had spent more than Rs.5 lakhs till date for her treatment, consultancy with doctors, tests and for physiotherapy by borrowing the loan and she require some more money for her treatment and medical expenses. OP.1 to 4 are collectively responsible for her pathetic condition and her husband is working screen printing worker and has difficulty to run the family by meeting the medical expenses of the complainant.  There is recklessness in monitoring, not recording the clinical examination and vital parameters of the complainant, not using the equipment’s available in the hospital to monitor, resulted in complainant suffering and has become handicapped. The entire family has to suffer irreparable loss and complainant is under depression at her younger age and has lost interest in life due to inexplicable trauma and continue suffering. She obtained the service of Op by paying the service charges and hence she is a consumer. She sent a legal notice on 23.08.2016 demanding compensation from the OPs who have sent a untenable reply denying all the allegations made against them.  Hence the cause of action for the complaint arose on 22.09.2018 and hence prayed the forum to allow the complaint and award compensation as prayed for.

7.     Upon the service of notice OP 1 to 4 appeared before the forum and filed the version and contended and the complaint is not maintainable either in law or on facts and it is filed on false and baseless grounds.  It has admitted that complainant was admitted to their hospital on 11.03.2015 for caesarian section with BAT technic of anesthesia decided by OP.4 was regional block – sub arachnoid  block spinal anesthesia.  Dr Umesh OP-4 was in the ward before the patient was shifted to operation theatre and he explained the anesthetic procedure, the advantage and complications to her and consent was taken.  Preanesthetic evaluation was done i.e. clinical and lab investigation was conducted accepted anesthesia administered and the machines in the OT regarding anesthesia was checked and found working satisfactorily and afterwards the patient was shifted to OT.

“Patient was admitted in the Hospital on 11.03.2015 for Cesarean Section with BAT. Technique of Anesthesia decided by me was Regional Block- Sub Arachnoid Block  [Spinal Anesthesia]

On the Day of surgery, before shifting the patient to OT. Dr. Umesh visited the patient in the ward  explained about the Anesthetic procedure and consent was taken. [Advantages & complications] were explained to the patient.

Then pre anesthetic evaluation of patient was done . [Clinical & Lab Investigation’s]

Accepted with ASA grade 1

In OT anesthesia machine and other equipment are checked and found working satisfactorily

Patient was shifted to OT.

IV line established with 18G canula for fluid transfusion.

Monitors connected for Vital monitoring ECG NIBP Sp02.

100% 02 5 L/min was given through simple face mask to the patient.

On the OT Table, Patient was kept in kept in left Lateral position.

Aseptic precaution at the site of injection was  done with Betadine solution applied on the lower half of the back and sterile draping applied.

Space selected for spinal anesthesia was L3 – L4.

Spinal needle used was 27G

Drug used was 2cc 0.5% Bupivacaine Heavy

Intrathecal administration was done in single attempt.

Patient was put back  on supine position on OT Table.

Level of anesthesia checked found to be established up to T 6 derma tone level.

Per operative monitoring done during the surgery and uneventful.

At the end of surgery vital and normal patient was normal.

Patient was shifted from OT to recovered room. Vital monitored.

After  three hours of Surgery the Patient was compfortable, vitals were stableand able to move both the lower limbs.

Then the patient was shifted to ward and vitals are monitored

On the second day, patient was confortable vitals stable patient was ambulated without complaints.

The above technique of  anesthesia administered to this patient was ambulated without complaints.

The above technique of anesthesia administered to this patient done comprehensively with standard care as per methods described in the text book of Anesthesia.

8.     A live baby weighing 3.2 kg was taken out at 11.24 am on 12.03.2015 and the complainant was discharged on 15.03.2015,  and the procedure was successful and the patient was walking on her own. She was advised to come back to the hospital for removal of the suture. Patient visited and got removed the suture.  And she returned back to home without any complaint.  Three days after removal of the suture, again complainant came back to the hospital with a complaint of weakness in the right lower limb. She has got examined by neurologist and conducted nerve conduction study. Afterwards the complainant did not turn up with the hospital for further treatment, and now she has filed this complaint alleging negligence eon the part of OPs and claiming compensation of Rs.15 lakhs.  They have provided proper treatment with utmost care and it is strictly according the established medical practice. 

9.     They have not hidden any vital information as alleged in the complaint.  Consulting neuro surgeon of Santosh diagnostic &  scanning center is not within their knowledge and so also the complainant getting opinion from the neuro surgeon at Sakra Hospital and getting treatment.  The allegation that the said doctors have opined negligence on the part of oP4 at the time of administering anesthesia is only imaginary. OP-04 Dr Umesh was having rich experience and have administered spinal anesthesia for a number of patients and in this case he administered a spinal anesthesia with due care and caution. There was neither error in judgment nor negligent in profession.  OPs are not liable to pay compensation to the complainant and also medical expenses incurred by the complainant and so also they are not liable to pay Rs.15,00,000/- the compensation which the complainant has sought from them mental agony, loss of future and for deficiency in service and negligence and prayed the commission to dismiss the complaint.

10.   In order to prove the case, both the parties have filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complaint filed by the complainant is barred by limitation as contended by OPs?

2) Whether the complainant has proved deficiency in service on the part of the Opposite Parties?

3) Whether the complainant is entitled to the relief prayed for in the complaint?

11.   Our answers to the above points are:-

POINT NO.1 & 2: In the Affirmative.

POINT NO.3 :   Do not survive for our consideration

                                For the following.

REASONS

POINT No.1 & 2:-

12.   On perusing the complaint, version, documents, evidence filed by the both the parties, it becomes cleared that, the complainant Smt.Shwetha Someshekar got admitted to OPs hospital which is run by OP-2 wherein OP.3 was a Gynecologist and who performed cesarean (C-section) for delivery of the baby under the spinal anesthesia administered by OP-4 an anesthetist. The C-section (LSCS) was performed on 12.03.2015 and spinal anesthesia was administered by OP-4.

13.   It is contended by the complainant that post-operative she was having severe radiating pain from the lower back to the right lower limb and she was unable to move right lower limb easily as a normal women would do though the right limb appeared to be normal.  It is also contended by her that the physician attached to OP hospital gave her treatment for the 1^st three months on OPD basis as she was living near by the hospital and could go to the hospital as and when directed though she was having tiredness and traumatic pain. Inspite of the symptomatic treatment given to her the pain do not subsided. It is contended that on 15.06.2015 i.e. almost three months after the LSCS, she visited one Dr. Parushoram T Bavimani who advised her to consult neurologist and to undergo physiotherapy if required. Afterwards she consulted one Dr.Santosh a neurologists of Santosh Diagnostic and scan center who diagnosed that she was having “Right Foot Drop “ owing to the wrong method of administering anesthesia and advised MRI of Lumbo sacral joint L5 –S1 vertibral segment and nerve conduction study and the same was got done with medal Clumax Diagnosic Center and Karthik Physiotherapy who identified as the “Right Peroneal Axonopathy” of the right leg which is resultant of negligence, reckless administration of anesthesia by OP-4. It is contended that the OP.4 has been negligent in administering the anesthesia which has given raise to “Right Peroneal Axonopathy”.

14.   All the hospital records have been produced and even the matter was referred to the medical board of victoria hospital where Dr.Ramachandra R prof. of HOD of Anesthesia gave an expert opinion after going through the medical documents and records of the complainant.   It is in his report that the “nerve conduction study shows “Right Peroneal Axonopathy” and in obstructic practice spinal anesthesia is associated with rare instances of neurological complication including foot drop. Incidence is up to 1% of deliveries. Foot drop is defined as patient inability to dorse flex of the foot. The proposed mechanisam of foot drop includes nerve damage like Sciatic or peroneal nerve injury. Lumbo sacral nerve root compression by spinal haematoma during the course of administration of spinal anesthesia.

15.   Usually complete recovery occurs with physiotherapy steroids and multivitamins within some months. Some time, it may take more than one year. It is also reported that there are instances of unrecognized hereditary neuropathies making presentation of foot drop and post-operative period following spinal anesthecia which is not related to the spinal anesthesia perse, but it is due to compression of Lumbo Scaral trunk by the fetal head at the pelvic brim. 

16.   It is further mentioned in the report that as per the case records intra muscular injection, diclofenac has been administered post operatively.  In advertant gluteal intra muscular injections may also some time present with foot drops.  “In view of the above he has given an opinion that it is very difficult to comment as to the exact cause for the development of foot drop in this patient. It is also further mentioned as per the records anesthesiologist followed the standard accepted protocol of conducting spinal anesthesia for such case. Opinion of the neurologist and orthopedician may also be taken in this regard.” 

17.   In the interrogatories issued by the complainant to the hospital authorities, for the first time, the complainant came with the complaint of weakness of right foot on 16.06.2016 i.e after 3 months of LSCS . Hence steroids for nerve complication do not arise at all. Further the patient and her relatives have given permission for the preoperative and postoperative possible complication of administering of anesthesia who have given consent by knowing the complications. Had the complainant came at the early stage administration of steroids, multi vitamins and physiotherapy could have helped the complainant.  It is also stated that during recovery from spinal anesthesia of post LSCS procedure, the recovery of motor and scentary function of both lower limbs were normal and at that time there was no dorsi flexion.  As per the protocol, the complainant was treated immediately but she did not come to their hospital immediately when she noticed the problems.  From all these and further the medical reports of SAKRA Hospital the neurology report of nerve conduction study shows that absence of CMAP Ampicude from the right peroneal nerve rest of the conductions or within the norms. No conduction blocks.  F wave was absent from the right common peroneal nerve. Rest of F waves are within normal limits and posterial tibiar nerves. Sencery nerve conduction study showed normal peak SNAP Latencies with preserved amplitude and CV from the Sural nerve . Needle EMG was not done.  The nerve conduction study shows the “Right Peroneal Axonopathy”. 

18.   When all these facts and circumstances and evidence are taken in to consideration, it becomes clear that due to OP-4 injected spinal anesthesia during the LSCS, there was a right foot drop of the complainant, which she is suffering even today as per her averments in the complaint and the medical records.  If this is taken into consideration as per the principle of OPs, we have to answer POINT NO.2 IN THE AFFIRMATIVE,  that there is negligence and deficiency in service on the part of OP-4  and consequently of OP-1 and hence we answer Point No.2 in the affirmative. 

19.   It is to be noted here that, on 11.03.2015 the complainant got herself admitted to OPs hospital for cesarean and same was done on 12.03.2015 under spinal anesthesia and she was discharged on 15.03.2015 as per the discharge summary.  Neurologist opinion is also obtained on 15.06.2015 and she got examined by Santosh Diagnostic and scan center and afterwards she underwent physiotherapy with Karthic physiotherapy center on 09.07.2015 wherein the physiotherapist mentioned that her nerve conduction study showed “Right Peroneal Axonopathy” we planned to treat her with electrical muscle stimulation and exercise therapy.  The MRI scan is also produced which has been discussed by the expert of the medical board of Victoria Hospital. 

20.   In the complaint it is stated that the cause of action of the complaint is on 22.09.2018 when the OPs denied payment of the compensation upon the demand made by the complainant and further since the treatment is continuing, there is continuous cause of action.  

21.   On the other hand, OPs have taken up the contention that the complaint filed is barred by limitation as on 12.03.2015 cesarean section was conducted under the Spinal anesthesia and she came to the hospital after three months with the complaint of right foot drop and she was advised motor conduction test and afterwards, she did not turn up to the hospital for treatment and she got the nerve conduction test through MRI in Sakra Hospital and the said hospital got the neurological report on 31.07.2015 and found that there is “Right Peroneal Axonopathy”. Even the complainant issued a legal notice on 23.08.2016 and denied their liability upon receiving the said notice.  The said reply is issued on 20.09.2016. When this is taken into consideration the cause of action for the complaint has taken place from the date of administering the spinal anesthesia and subsequently and when she was detected “Right Peroneal Axonopathy” i.e. on 31.07.2015 and from that day within two years i.e. on or before 31.07.2017 the complaint ought to have been filed as contemplated under the Consumer Protection Act. It is held in many cases decided by the HON’BLE SUPREME COURT OF INDIA AND HON’BLE NCDRC that the cause of action will not start from the date of issue of legal notice, or any correspondence will not give raise to new starting point for the cause of action. It is held in AIR 2011 SC 212 which is related to medical negligence case the facts are almost similar to the present facts of the case (on the point of limitation).  The Hon’ble Supreme Court has held in the said case that if the complaint is barred by time consumer commission is bound to dismiss the same unless consumer make a case for condonation of delay under Section 24(2) of the Consumer Protection Act 1986 and in this case also  there is no application filed by the complainant to condone the delay and so also no reason.

22.   As we have held that the cause of action for the complainant to file this complaint arose on 12.03.2015 and subsequently on 31.07.2015 when she was detected “Right Peroneal Axonopathy” she ought to have filed this complaint on or before 31.07.2017 whereas she filed this complaint on 18.09.2018 without explaining and giving the reason for filing this complaint belatedly. Hence applying the above decision we are of the opinion that complaint filed in beyond the time preferred under Consumer Protection Act 1986 and hence we answer POINT NO.1 IN THE AFFIRMATIVE.

23.   Though we have held Point No.2 in the affirmative and as we have held Point No.1 in the Affirmative, we are of the opinion that there is no necessity for us to discuss the quantum of compensation which the complainant is entitle to at the hands of OPs as the complaint is filed barred by limitation and hence we pass the following:   

ORDER

1. The complaint is hereby dismissed. No order as to cost.

2. Send a copy of this order to both parties free of cost.

Note: You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Commission on this day the 08^th day of August 2022)

MEMBER                 MEMBER                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the Discharge summary dtd:15.03.2015.

Ex P2: Copy of the physician opinion:

Ex. P3: Copy of the bill of neuro physician

Ex P4: Copy of the Santosh Diagnostice  and scan center, requisition charges.

Ex P5: Copy prescription of Karthik Physiotheraphy center.

Ex P6: Copy of the opinion of Medell clumas Diagnostics Center.

Ex P7: Copy of the bills for the payments made  towards physiotherapy.

Ex P8: Copy of the nerve conduction and ENMG report/Sakra Hospital.

Ex P9: Copy of the legal notice dt:23.08.2016.

Ex P10: Copy of the reply notice dt:20.09.2016

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Dr.A.H.Lokesh of OP-2

RW-2: Sri Umesh of OP-4

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Copy of the admission sheet dated 11.03.2015,

Ex R2: Copy of the Consent firm by the complaint.

Ex R3: Copy of the duty doctors note.

Ex R4: Copy of the anesthesia notes.

Ex R5: Copy of the operation notes.

Ex R6: Copy of the post-operative procedures.

Ex R7: Copy of the nurses notes.

Ex R8: Copy of the discharge summary.

Ex R9: Copy of the lab report.

MEMBER                 MEMBER                PRESIDENT

RAK*