REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4119 OF 1999

Nizam Institute of Medical Sciences                   …Appellant

Versus

Prasanth S. Dhananka & Ors. ……...Respondents

With C.A. No. 3126 of 2000

J U D G M E N T

HARJIT SINGH BEDI J.,  

1.    This judgment will  dispose of Civil  Appeal No 4119 of  

1999  and  Civil  Appeal  No.  3126  of  2000  filed  by  the  

complainant, Prasanth S. Dhananka .  The facts are as under :

2. The respondent Prasant S. Dhananka ( hereinafter called  

the  “complainant”),  then 20 years of  age  and a student of  

Engineering, complaining of recurring fever was examined in

the hospital run by the Bharat Heavy Electricals Limited as  

his father was employed with that Organisation.  As the cause  

of the fever could not be identified, he visited the appellant –  

Nizam  Institute  of  Medical  Sciences  (NIMS)  on  

9th September, 1990 in the evening OPD.  He was examined by  

one Dr. Ashish Boghani, a Chest and Tuberculosis Specialist  

and was advised to undergo on ultrasound guided biopsy for  

Neurofibroma, an innocent tumour, after an X-ray revealed a  

mass in the left hemithorax with posterior mediastinal erosion  

of the left 2nd, 3rd and 4th ribs.  As several attempts at Fine  

Needle Aspiration Cytology (FNAC) under ultra sound guidance  

did not give any conclusive evidence as to the nature of the  

mass detected in the X-ray examination, the complainant was  

referred (on 5th October, 1990) for further examination to Dr.  

U.N.  Das,  who  suggested  another  attempt  at  the  same  

procedure but under C.T. guidance.  This test too did not show  

any lesion on which Dr. U.N. Das suggested that he undergo  

an  excision  biopsy  and  referred  him  to  Dr.  P.V.  

Satyanarayana,  a  Cardio  Thoracic  Surgeon,  who  further  

advised him to report at the hospital on  16th October, 1990 for  

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allotment of a room.  The complainant was admitted to the  

hospital  on  19th October,  1990  and  the  operation  was  

performed on  23rd October, 1990 and the tumour was excised.  

It appears that immediately after the surgery, the complainant  

developed acute paraplegia with a complete loss of control over  

the lower limbs, and some other related complications, which  

led  to  prolonged  hospitalization  and  he  was  ultimately  

discharged  from the  hospital  on 19th May,  1991 completely  

paralyzed with no change in his sensory deficit.  The discharge  

record  also  shows  that  the  patient  required  continuous  

physiotherapy and nursing care on account of infection of the  

urinary tract and the development of bed-sores etc.  It is the  

case of the complainant that after his discharge from NIMS, he  

visited several other hospitals seeking relief, but to no avail.  

On 11th May, 1991 the complainant’s father requested NIMS  

for a detailed report so that his son’s case could be discussed  

with experts from other developed countries` so as to improve  

his quality of life.  No reply was, however, forthcoming despite  

a  reminder.   Another  letter  dated 12th November  1991 also  

drew no response. Completely frustrated, the complainant filed  

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a  complaint  before  the  National  Consumer  Redressal  

Commission (hereinafter referred to as the “Commission”)  on  

5th April, 1993 alleging utter and complete negligence on the  

part  of  Dr.  P.V.  Satyanarayana  and  the  other  attending  

doctors and also making NIMS vicariously liable and the State  

of Andhra Pradesh statutorily  liable for the negligence of the  

doctors concerned.   Allegations was primarily levelled against  

Dr. P.V. Satyanarayana for negligence before, during and after  

the operation.  It was alleged that the medical record did not  

indicate any immediate danger to the complainant’s life and  

health and that his father had pleaded with the doctors that  

the operation be postponed till such time he could complete  

his engineering degree course.    It was further alleged that the  

doctors had not carried out the required pre-operative tests  

which were available in NIMS itself and that the complications  

which could possibly flow as the result of an excision biopsy  

had  not  been  spelt  out  to  the  complainant  prior  to  the  

procedure.   It  was  also  submitted  that  operating  on  a  

neurofibroma  or  a  schwannoma  which  had  neurological  

implications  as  well,  warranted  the  involvement  of  a  Neuro  

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surgeon but no such opinion was sought before the surgery. It  

was also pleaded that the consent that had been taken was  

only  for  the  purpose  of  an  excision  biopsy  which  was  an  

exploratory procedure, but Dr. Satyanarayana had carried out  

a complete excision removing the tumour mass and the fourth  

rib thereby destroying the inter-costal blood vessels leading to  

paraplegia and had a Neuro-surgeon  been associated with the  

operation,  this  problem could well  have been avoided.   The  

complainant  also  alleged  that  negligence  in  post–operative  

treatment and care had led to bedsores, severe pain, and high  

temperature and frequent and unnecessary exposure to X-rays  

which could be a potential hazard later in life.  He accordingly  

claimed compensation as follows:

A)   SPECIAL DAMAGES (PECUNIARY)

1. Loss of future earnings     Rs.89,17,200    (Annexure XI)

2. Present burden of expenses     Rs. 3,38,604**     [Annexures IV(a) to(d) ]

3.  Damages on account of the      Rs. 30,34,930      complainant by father, mother,      younger brother & maternal Uncle      [Annexures VII, VIII, IX & X]

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4. Prospective burden of expenses  Rs. 3,00,00,000     (Annexure-XII)

B) GENERAL DAMAGES (NON PECUNIARY)  

       Pain  and  suffering,  loss  of  amenities  &  Rs.38,30,000 Enjoyment of life & shortening of life  Expectancy. (Annexures XIII, XIV, XV)  -               Rs.4,61,20,734

** (Later in his affidavit dated 5.2.94, this has  been shown as Rs.3,49,022 and the total claim  as  4,61,31,152:  the  present  burden  of  expenses includes an amount of Rs.1,27,644/-  paid  to  OPI  and  Rs.91,002/-  to  other  hospitals).

3. On notice several replies were filed by the respondents.  

NIMS, Respondent no.1 before the Commission,  filed a  

reply on behalf of respondent Nos. 2 to 5 and denied the  

allegations in the complaint and pleaded that there had  

been  no  negligence.   Respondent  No.6  before  the  

Commission  i.e.  Chief  Secretary  Andhra  Pradesh  

Government, disowned any liability and pleaded that it  

had absolutely no concern with the matter.  Several pleas  

on merits were   also taken by  the respondents.    

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It was pleaded that the provisions of the Consumer Protection  

Act could not be attracted and that the complaint had been  

made after a lapse of one and half years and was, therefore, an  

afterthought.   It  was also pleaded that reasonable  care had  

been taken in the treatment by doctors who were highly skilled  

in their specialties and in this view of the matter, the claim for  

compensation and that too running into several crores, was  

not justified.  The respondents’ then traversed the facts of the  

case and pleaded that though the initial  examination of the  

patient ruled   out  the  presence  of  a lymphoma which was a  

malignant  condition,  the  possibility  of  an  undetermined  

malignancy within a large area in  the left thorax had to be  

examined    as   a  benign  lesion  was   unlikely  to  cause  

prolonged fever  along with   erosion of  the left 2nd,  3rd and 4th  

ribs  as  shown  in  the  X-rays’   and as a rapidly    growing  

benign lesion  could also  cause erosion of the ribs, a   biopsy  

of the  mass to confirm the diagnosis was  essential to    plan  

the future course  of  action. It was   further  pleaded  that a  

history  of  fever for about 15 days prior to admission  with  

loss  of  appetite  and  weight  suggested  that  

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whatever be the nature of the lesion, benign or malignant, its  

presence was taking its  toll  on the general  condition of  the  

patient  which  required  some  minimal  tests.   It  was  also  

pointed out that as four attempts at FNAC had not yielded any  

conclusive  pathological  diagnosis,  the  next  best  alternative  

was  to  go  in  for  an  excision  biopsy  by  thoracotomy  (an  

operation involving incising the wall of the thorax) which was a  

test which could finally determine the nature of the mass.  It  

was, however, admitted that the complainant and his parents  

had pleaded during discussions in the OPD for postponement  

of the proposed excision biopsy to enable him to complete his  

education  but  when  it  was  explained  to  them  that  early  

confirmation of  the diagnosis to exclude the possibility  of  a  

malignancy was essential, the parents had consented for the  

surgery after they had been fully informed about all possible  

risks and it  had also been explained to them that after the  

body had been opened up, a small piece of the mass would be  

immediately  sent  for  histological  examination  and  that  any  

further  procedure  would  be  based  on  the  report  received  

therefrom.  It was further pleaded that after the thoracotomy  

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had been performed, a part of the tumour had in fact been  

sent  for  a  biopsy  and  the  report  had  been  received  soon  

thereafter that the mass was benign but it was nevertheless  

decided to excise the entire tumour as the 4th rib had eroded  

and it had been found essential to remove the 2nd and 3rd rib  

as well and for this purpose some inter costal blood vessels  

had also been sacrificed.  It  was also submitted in addition,  

that  as  tumours  though  initially  benign  can  cause  several  

medical complications endangering the patient’s life and can  

also turn malignant at a later stage, it had been thought fit to  

remove the tumour along with the involved ribs and that all  

care expected of doctors had been taken and that it was only a  

cardiothoracic surgeon who had the skill  to perform such a  

surgery and that the help of a neuro surgeon had to taken if  

the  tumour  had  any  intra  spinal  extension  and  as  in  this  

particular case there was no such extension, the presence of a  

neuro surgeon was not required.  It was  finally pleaded that  

all investigations before the operation had been performed and  

full medical care had been provided to the complainant at the  

post-operative stage as well.   

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4. Affidavits were filed as evidence by the parties in support  

of  their  pleadings.   As the complainant  was (and is)  a  

severely  handicapped  person and confined  to  a  wheel-

chair,  the  Commission  directed,  on  consent  of  both  

parties, that the evidence be recorded by the President of  

the  Andhra  Pradesh  State  Commission  and  the  

depositions thereafter transferred to the Commission.  In  

an affidavit dated June 1994 filed by NIMS a request was  

made to invite specialists from the All India Institute of  

Medical  Sciences,  New  Delhi  so  that  the  question  of  

negligence, if any, could be properly investigated but the  

affidavit also added that the deponent had no objection, if  

the Commission did not propose to follow this procedure.  

The complainant too was directed to file an application if  

he  wished  to  examine  any  expert  medical  witness  in  

support of his pleas.  An application was accordingly filed  

on    22nd August 1994 proposing the name of Dr. A.S.  

Hegde, a Neurosurgeon, practicing in Bangalore and he  

was duly summoned and his statement recorded by the  

President of the State Commission at Bangalore.  On 19th  

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September 1996, the counsel for respondent Nos. 1 to 5  

undertook  to  produce  the  entire  record  before  the  

Commission but it was noticed on 25th April 1997 (when  

the case came up for hearing)  that the record had not  

been submitted.   The Commission accordingly  directed  

that  the  record  be  filed  that  very  day.   The  case  was  

finally heard on 4th September 1998 and after arguments  

had been concluded,  the parties  were given two weeks  

time  to  file  written  submissions.   The  Commission  

declined (at  this  belated  stage)  to  accept  the  prayer  of  

some of the respondents made on 5th October 1998 ( i.e.  

after arguments had been concluded) to summon experts  

from the AIIMS as Court witnesses.

5. During the course of arguments before the Commission,  

allegations  pertaining  to  negligence  at  different  stages,  

that  is,  before,  during  and  after  the  operation,  were  

raised.  The main contention of the complainant was that  

pre-operative diagnostic investigation had not been fully  

carried  out  and  after  four  futile  attempts  at  needle  

biopsies had not given any conclusive result, a  C.T. Scan  

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or  an  MRI  by  an  experienced  Radiologist  would  have  

revealed  the  existence  of  the  tumour  and  that  in  any  

case, since Neurofibroma or Schwannoma tumours were  

basically neurological in nature, the complainant ought  

to  have  been  referred  to  a  Neurophysician  and  if  

necessary to a Neurosurgeon.  The respondents, however,  

pleaded that the investigations relating to biopsies were  

to be conducted by a Radiologist and not by a Surgeon  

and that the complainant had been referred to a cardio –  

thoracic Surgeon as the tumour was in the thorax and  

that further investigations by an MRI were not necessary  

as sufficient information about the extent of the tumour  

had already been revealed.  On the basis of these broad  

facts,  the  Commission  went  into  the  question  as  to  

whether the consent for the operation for the removal of  

the tumour had been obtained from the complainant or  

his  attendants.   The  Commission  observed  that  

admittedly some discussion had taken place between Dr.  

Satyanarayana  and  the  complainant  and  his  parents  

about  the  possibility  of  deferring  the  operation  till  the  

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completion of the complainant’s education but after Dr.  

Satyanarayana had explained the gravity of the situation  

to them, they had impliedly given their consent for the  

operation.  The Commission then examined the question  

of negligence at the stage of the operation itself on 23rd  

October, 1990 and  observed that the record of the case  

showed that there had been erosion of the ribs and this  

had been confirmed during the operation which indicated  

that the tumour had spread into the spinal area and as  

this  required  the  intervention  of  a  Neurosurgeon,  the  

neglect  in  associating  one  was  clearly  a  case  of  

negligence.  The  Commission  also  noted  that  a  

Neurosurgeon had, in fact, been called in though  at a  

belated  stage.   The  Commission  finally  went  into  the  

question of negligence at the post-operative stage and the  

plea of the complainant that lack of care had led to bed  

sores,  very  high fever  and other  related  complications,  

and rendered its opinion on this aspect as well.

6. The Commission, in its order dated 16th February, 1999  

concluded as under:   

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“From the aforesaid discussion, we are clear in  our  mind  that  there  was  negligence  and  deficiency of service on the part of the OPs in  the different stages of the case.

(i) OP 2  had stated that  had he  known  pre-operatively about the extension of  the  tumour  into  intervertebral  foramen, he as a CT surgeon would not  have chosen to deal with it and that on  noticing  vertebral  erosion  while  operating,  he  requested  OP3 into  the  theatre. Thus, according to OPs cases  of  vertebral  erosion and/or  extension  into intervertebral foramen, warranted  the  performance  of  surgery  by  the  neurosurgeon  along  with  the  CT  Surgeon.

(ii) There  was information pre-operatively  before  both  OP4  and  OP2  about  vertebral  erosion  at  T  4  level  and  affectation of vertebrae.  On the basis  of this information alone, OP4 should  have  referred  the  case  to  the  neurosurgeon  as  well  as  to  the  CT  Surgeon; instead, he had referred only  to the CT Surgeon.  When the case was  referred to  OP2 by  OP4,  OP2 should  have himself  discussed the  case with  OP3, the neurosurgeon, who was also  the  Director  of  the  Institute  at  the  relevant time, in view of the aforesaid  clinical  information,  and  the  team of  OP2  and  OP3  should  have  planned  and  performed  the  surgery.  This,  however, was not done.

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(iii) Not  only  did  they  fail  to  utilize  the  available  pre-operative  clinical  information,  OP4 and OP2 also failed  to  conduct  necessary  pre-operative  diagnostic  tests  like  MRI  and  myelogram which would have provided  the information pre-operatively on the  extension  of  the  mass  into  intervertebral  foraman  and  which  information would have even according  to  OP2 brought  the  neurosurgeon  as  the prime surgeon. This failure on the  part  of  OP4  and  OP2  deprived  the  Complainant  of  the  services  of  neurosurgeon  in  the  entire  surgery  right from the beginning.

(iv) After failing thus miserably in the pre- operative  stage,  there  was  negligence  in the operative stage too. Although the  surgery was admittedly to know about  the  pathology  of  the  tumour,  almost  the entire tumour seems to have been  excised  before  knowing  its  pathology  as  a  benign  Schwannoma.  We  had  earlier  noted  that  some Schwannoma  form dumbbell extensions through the  inter-vertebral  foramen,  and  there  is  admission  by  OP2  that  he  noticed  extension  into  intervertebral  foramen.  Although  the  practical  significance  of  distribution of nerves in Schwannoma  which  enabled  its  removal  without  transaction of nerves was admitted, yet  two inter-costal vessels were sacrificed  in the surgery.

(v) We have  already  noted  that  the  case  records  were  not  produced  by  Ops  

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until they were again directed to do so  through  our  Order  dated  25.4.97.  Thus,  the  medical  expert  who  was  examined in 1994 had based his views  on discharge summary, evening special  clinic record, pre-operative X-rays and  CT  Scan  reports,  post-operative  X- rays,  CT  Scan  and  MRI.   The  case  records  containing  the  copy  of  discharge record which varied from the  original  discharge  record,  the  OPD  morning clinical  record, the operation  notes,  the  histopathology  report  were  submitted by the OPs only after April,  1997 and these records contained vital  information  regarding  erosion  of  vertebra and extension of tumour into  intervertebral  foramen  etc.   There  is  force  in  the  Complainant’s  allegation  that  there  was  suppression  of  vital  information and only half  information  made  available  to  the  medical  expert  witness which allegation has not been  rebutted  by  the  Ops.   Thus,  the  medical  witness’s  deposition  is  to  be  deemed  to  have  been  based  on  incomplete data.

(vi) It  is  also  found  that  the  operating  surgeon  OP2  and  the  neurosurgeon  OP3  who  joined  at  the  end  of  the  surgery  left  the  theatre  without  meeting  the  anxious  parents  waiting  outside  the  operation  theatre  from  9  A.M.  to  12.45  P.M.  and  without  appraising them about the removal of  tumour  and  the  rib,  the  pathological  nature  of  the  tumour  for  which  

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purpose the surgery was done etc.  The  parents  came  to  know  from  another  attending doctor in the T.R.R. at about  6 p.m., that day who reported that the  Complainant  had  come  out  of  anaesthesia  but  that  he  has  got  paraplegic.   It  was  left  to  the  shell- shocked father of the Complainant to  collect OP2 and OP3 to know about the  developments and the condition of the  patient;  in  effect,  the  parents  could  meet these Ops only at about 10 P.M.  that day.  One gets the impression that  had these Ops know known about the  onset  of  paraplegia  in  the  operation  theatre  itself  as they contended,  they  could  have  normally  come out  of  the  operation theatre, met the parents and  relatives  and  reported  about  the  outcome of the surgery.  It is difficult  to  brush  aside  the  feeling  that  as  senior surgeons and faculty members  they would have not comprehended the  serious outcome of the operation which  is  perhaps  why  they  left  without  meeting the parents.

(vii) OP1  as  an  institution  failed  to  carry  out  its  statutory  function  of  exchanging  opinion  on  the  case  with  sister institutions in India and abroad  for  post  operative  management  to  retrieve the patient from the damage to  the extent possible.

In  the  light  of  aforesaid,  we  hold  that  there was negligence on the part of OP1,  OP2, OP3,OP4 and OP5 and deficiency of  service  to  the  Complainant  –  patient.  

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Since OP6 is already represented through  OP1  (according  to  notification  establishing  the  institute),  we  do  not  consider  it  necessary  to  bring  OP6  separately  under  the  purview  of  the  Complainant.  In the result, OP1 to OP5  are  liable  to  pay  the  compensation  as  determined  hereunder.   Since,  however,  OP1  is  the  institution  in  which  OP2 to  OP5 are employed, we hold that OP1 is  singularly  responsible  for  payment  of  compensation.   In  the  written  submissions  filed  after  arguments  were  concluded,  Ops  have  observed  that  should the Commission decide to award  any compensation, they reserve the right  of making further observations.  We are  of the opinion that OPs were at liberty to  make whatever submissions they wanted  to  make  on  the  point  of  quantum  of  compensation  during  the  arguments  stage  itself;  at  that  stage.   Ops  only  stated  that  the  claim  was  exaggerated  and  ill  founded.   In  their  written  submissions,  Ops  have  also  informed  that NIMS as medical institution during  the  period  in  question  is  covered  by  a  medical  insurance  policy  to  a  tune  of  Rs.10  lakhs  for  the  period  25.5.90  to  24.5.91 with the United India Insurance  Company,  Hyderabad,  the  maximum  liability being Rs.10 lakhs subject to one  claim out of any one event of Rs.5 lakhs.

The  complainant  has  claimed  compensation  for  i)  present  burden  of  medical expenses, ii)  prospective burden  of expenses, iii) loss of future earnings, iv)  pain,  suffering,  loss  of  amenities  and  

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enjoyment  of  life  and  shortening  of  life  expectancy  and  v)  damages  /  compensation for father, mother, brother  and  maternal  uncle.   The  complainant  claimed for medical expenses on hospital  and related charges; Complainant’s father  was an employee of BHEL at the relevant  time and these would be reimbursed by  them.  We do not propose to interfere in  such an arrangement.  Complainant has  claimed  for  future  burden  of  expenses  including  physiotheraphy,  nursing,  washer woman, aya etc.  We feel that the  items  mentioned  under  this  category  such as  regular  dressing material,  bags  and tape for urine drainage, cotton rolls  for defeacation, material for loin clean up  and treatment, dressing, nursing services  including cleaning, giving bath, bed sores  etc.  physiotheraphy  and  extra  nourishment  are  necessary  and  allowable.   The  Complainant  has  estimated the future burden of expenses  for  a  period  of  50  years.   It  may  be  mentioned  here  that  the  neurosurgeon  from Bombay,  Dr.  Sanghal,  a  Specialist  in  Spinal  Cord  who  examined  the  Complainant  –  patient,  opined  that  the  damage  was  severe  but  that  there  was  some chance of at least partial  recovery  because the patient is young.  Although  the complainant’s parent mentioned there  has  been  no  iota  of  improvement,  yet  there  appears  to  be  hope  for  some  betterment  with  a  proper  rehabilitation  plan.   Regarding  the  compensation  claimed  on  account  of  loss  of  future  earnings, we realize that the incident has  severely  affected  the  career  of  the  

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complainant  which,  as  seen  from  his  academic  record  prior  to  the  operation,  would have  been a  good one  otherwise.  We also perceive the anxiety, agony and  distress of the parents on the condition of  the  Complainant  consequent  to  the  operation.  It  is stated in the complaint  that  the  Complainant’s  mother  had  to  give up her teaching job in a school so as  to  look  after  the  Complainant  who  is  totally  bred-ridden  and  requires  round  the clock assistance and attention.  It has  also  been  stated  that  Complainant’s  brother  was  mentally  upset  which  affected  his  performance  in  his  examination  and  resulted  in  securing  admission in a college by paying huge fee.  Further,  the  Complainant’s  maternal  uncle  had  to  supplement  the  physical  efforts of his parents in attending on the  complainant  and also  bring  food  to  the  hospital even on curfew-bound days with  great difficulty.  In short, the entire family  was put in a disarray.

While determining the compensation  to  the  Complainant  as  also  to  his  parents, we have kept in view the broad  parameters  followed by us in an earlier  case  of  medical  negligence  (Original  Petition No.292 of 1994, Harjot Ahluwalia  (Minor)  vs.  Spring  Meadows  Hospital  &  Anr.) { II (1997) CPJ 98 (NC)} which was  upheld by the Hon’ble Supreme Court of  India { Civil Appeal No.7708 of 1997 with  Civil  Appeal  No.7858 of  1997 {  I  (1998)  CPJ  1  (SC)}.   The  Apex  Court  in  their  judgment while upholding our order have  also  dealt  with  the  question  of  

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compensation to be awarded in favour of  the parents of  the minor  child  for  their  acute mental agony and life long care and  attention  on  the  minor  child.   In  the  aforesaid case the Apex Court held that  the parents of the child having hired the  services  of  the  hospital,  are  also  the  consumers within the meaning of section  2  (1)(d)(ii)  and  that  they  would  also  be  entitled to award of compensation due to  negligence of the Ops to the Complainant.  A similar situation has arisen in the case  on hand where the complainant had been  given financial support by the parents for  hospitalization and associated expenses;  although  an  adult  he  has  to  be  given  physical support for a very long period by  the  parents  in  view  of  his  physical  immobilization  and  sensory  deficit  consequent  to  the  surgery.   As  for  the  claim for the Complainant’s brother and  maternal  uncle,  the  same  cannot  be  sustained, as they are not covered by the  definition of “Consumer” under the Act.

We are of the view that the facts and  circumstances  of  the  case justify  (i)  the  award to the Complainant of an amount  of  (a)  Rs.8  lakhs  (expected  to  yield  a  monthly  interest  of  about  Rs.8,000/-)  towards  prospective  charges  for  physiotheraphy,  nursing  and  associated  expenses, (b) Rs.4 lakhs (expected to yield  a  monthly  interest  of  about  Rs.4,000/-)  for  supplementing  the  complainant’s  future  earnings  and  (c)  Rs.2  lakhs  as  compensation  for  his  mental  agony,  physical suffering and pain and also for  physiotheraphy,  nursing  and  associated  

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expenses already incurred by him and ii)  award of compensation of Rs.1.5 lakhs to  the  parents  for  their  perpetual  mental  agony, stress and depression and for the  continued  support,  care  and  attention  they have to provide to the complainant  and for the income loss of the mother due  to dislocation in her job to look after her  son.  We, therefore, direct OP1 to pay a  total compensation of Rs.14 lakhs to the  complainant and compensation of Rs.1.5  lakhs  to  the  complainant’s  parents  jointly, within a period of  2 months from  the date  of  receipts  of  this  order  failing  which interest at the rate of 15 per cent  per annum shall become payable by OP1  until  the  date  of  payment.   We  also  impose  costs  of  Rs.25,000/-  on  OP1.  Complaint is allowed.”

7. We may,  at  this  stage  observe,  that  the  complainant’s  

plea that no consent for the excision of the tumour had been  

taken was rejected holding  that  prior  ‘implied’  consent  had  

indeed been taken.

8. Two appeals  have been filed  in  this  Court  against  the  

order of the Commission;   Civil  Appeal No.4119 of 1999 by  

NIMS disowning any liability and Civil Appeal No.3126 of 2000  

by  the  complainant  Prasanth  S.  Dhananka  asking  for  an  

enhancement of  the compensation.   Both these matters are  

being disposed of by this judgment.

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9. Mr. Prasanth Dhanaka, the appellant in Civil Appeal No.  

3126/2000 and the  respondent No.1 in C.A.  No.4119/1999  

has supported the finding of the Commission on the question  

of negligence, but has, in addition, challenged the observation  

of  the  Commission  that  the  implied  consent  of  the  

complainant and his parents had been taken for the excision  

of the tumour.  He has, however, primarily pleaded that the  

compensation given by the Commission was inadequate and  

not commensurate with the damage and agony that he and his  

family had undergone and which had cut short the promising  

and lucrative career which lay ahead for him.

10.Mr. Anil Kumar Tandale, the learned counsel appearing for  

the  NIMS,  the  appellant  in  C.A.No.4119/1999  has,  

however,  challenged  the  entire  basis  of  the  findings  

recorded  by  the  Commission  both  on  the  question  of  

negligence and on the quantum of compensation.  It has  

been  pleaded  that  all  requisite  procedures  had  been  

adopted before, during and after the operation and in this  

view of the matter, there was no negligence on the part of  

any  doctor.   He  has  also  pleaded  that  the  quantum  of  

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compensation claimed by the complainant on the basis of  

the calculations submitted before this Court in the form of  

a separate Paper Book was wholly unjustified, and that, if  

at all, any compensation had to be awarded, it had to be  

under the multiplier method, a procedure which had been  

adopted in several decisions of this Court.

11.As the primary issue at this stage would be the negligence  

or otherwise of  the Doctors of  NIMS we have extensively  

heard the parties on this question keeping in mind that the  

present proceedings are in the nature of a first appeal from  

the orders of the Commission.  In this background, we have  

examined  the  three  issues  raised  before  us  (closely  

interlinked as they are) under the three broad parameters  

adopted by the Commission, the alleged negligence before,  

during and after the operation.   

12. The  first  stage  would  be  that  of  diagnosis.   As  already  

observed  above,  we  have  carefully  and  independently  

evaluated  the  findings  of  negligence  arrived  at  by  the  

Commission.  The main plea of the complainant is that the  

pre-operation examinations had revealed a situation which  

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required the intervention of a Neuro Surgeon.  The case of  

Dr. Satyanarayana, however, is that the involvement of the  

vertebral column had been revealed only after the removal  

of the tumour.  We find this assertion to be incorrect.  It  

may be mentioned that the operation had been performed  

on 23rd October  1990 but in  the  pre-operative  discharge  

record dated 19th September 1990 ( Annexure P-29) there is  

a reference to a mass lesion in the left upper chest with  

erosion of ribs and vertebrae and no masses anywhere else.  

This  document  has  to  be  read  in  conjunction  with  

Annexure  P-27,  a discharge record dated  19th May 1991  

wherein  it  was  specifically  recorded  that  during  the  

operation on 23rd October 1990 a huge tumour had been  

noticed in the left  hemithorax with the second and third  

ribs eroded and that the vertebral body was eroded and the  

tumour mass along with extensions into chest wall and the  

fourth rib were all  excised.   These two documents when  

read together  belie  Dr.  Satyanarayana’s  statement in his  

cross-examination that the erosion had been revealed for  

the first time after the tumour had been removed.  It has  

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been the positive case of the complainant that had an MRI  

or Myclography test been carried out, the possibility that  

the  surgery  was  not  required  could  have  been  revealed.  

The complainant has referred us to an Article “Diagnosis  

and Treatment Options for Neurofibromas”- published by  

Robert  R.  Chase,  M.D.,  Stephen  Bosacco,  M.D.,  Richard  

Levenberg,  M.D.,  three  eminent  Doctors  in  which it  has  

been observed as under:

“Spinal  neurofibromas  may  mimic  intraspinal  neoplasms. Dural  ectasia  creates  bony  changes,  including  foraminal  widening,  vertebral  body  scalloping  and  pedicle  thinning.  In  addition,  neurofibromas  may  be  associated  with  intrathoracic  meningoceles,  spondylolosthesis,  scoliosis,  and  kyphosis.  On  plain  films,  bony  changes  may  be  evident,  i.e.  scalloping  or  foraminal  enlargement.  Computerized  axial  imaging  will  reveal  bony  changes,  in  addition  to  the  mass  representing  the  neurofibroma.  MRI  will  provide  further  delineation  of  the  soft  tissue  and  mass.  Myclography  can  demonstrate the nerve roots or cord level  in question.”  

13. Similar observations have been made in “Principles  

of  Surgery”  Sixth  Edition  by  Seymour  I.  Schwartz,  M.D.  in  

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which  it  has  been  observed  that  a  MRI  is  a  noninvasive  

diagnostic modality, especially for vascular lesions and that in  

addition Myclography may be required to confirm intraspinal  

findings.   It  is  also  clear  from the document  P-30,  a  letter  

addressed by Doctor D. Raja Reddy, Director of NIMS to the  

Director  General,  Military  Hospital,  Paraplegia  Special  Care  

Centre,  Poona that “the patient Mr.  Prashant had plexiform  

Neurofibroma of the Posterior Mediastinum with intra spinal  

extension.   Following  Mediastinal  tumour  excision  he  

developed  Paraplegia.  I  thought  he  should  benefit  from the  

intensive Physiotherapy care that your institute offers for such  

patients”.  Undoubtedly,  it  is  clear  from  this  document  it  

transpires  that  after  the  removal  of  the  tumour,  the  intra  

spinal  extension  had  been  revealed  but  the  complainant’s  

seems to be correct in saying that had a MRI or Myclography  

been  performed,  the  intraspinal  extension  could  well  have  

been revealed at the pre-operative stage which could have led  

to the intervention of a Neuro Surgeon at the time of removal  

of the tumour and the paraplegia perhaps avoided.

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14. Mr.  Tandale  has,  however,  in his  written submissions,  

raised additional pleas, (which had not been argued by him  

during the course of the hearing), and has also referred us to  

some texts which too had not been referred to by him.  He has  

submitted  that  the  decision  to  recommend  a  thoractomy  

despite the fact that FNAC had not disclosed any lesion was  

only a tentative opinion and not conclusive  and that the final  

opinion was only made available during the operation which  

had revealed the extent of the tumour.  The learned counsel  

has placed reliance on Chapter 34 titled “Chest Wall Tumours”  

in “Glenn’s Thoracic and Cardiovascular Surgery” (Ed. Arthur  

E.  Baue,  et  al),  Sixth  Edition,  Volume  –II,  to  submit  that  

needle  biopsies  could  miss  a  Neurofibroma,  so  excisional  

biopsy (as in this case) should be resorted to.  The relevant  

passage reads thus:

    “Neurofibromas  can  occur  as  an  isolated  lesion,  but  usually  these  tumours are multiple and are associated  with  von  Recklinahausen’s  multiple  neurofibromatosis. Although most lesions  are  benign,  malignant  degeneration  can  occur. When new symptoms appear – an  enlarging  mass  or  pain  –  excision  is  recommended.  Needle  biopsy  may  miss  

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the  significant  spot,  so  excisional  biopsy  should  be  done.  When  these  tumours  occur  near  the  vertebral  body,  the  presence  of  a  “dumbbell”  tumour  with  extension into the spinal canal must be  documented  by  CT  or  MRI  scan.   If  present,  neurological  consultation  is  needed  for  combined  resection.”  (Emphasis supplied)

15. These  observations  do  undoubtedly  justify  an  excision  

biopsy  but   equally  support  the  case  of  the  complainant  

inasmuch  that  his  case  too  was  that  had   an  MRI  been  

performed, the extent of the tumour and its extension into the  

spinal cord would have been revealed.  We have, therefore, no  

hesitation in holding that the complete investigations prior to  

the actual operation had not been carried out.

16. Allied to this finding is the question as to whether the  

required  consent  for  the  excision  of  the  tumour  had  been  

taken from the complainant or his parents.  The Commission  

has noted that some discussion between the complainant, his  

parents and Dr. Satyanarayana had taken place in the OPD  

and the possibility of deferring the operation had been mooted  

but  notwithstanding  this  discussion,  the  complainant  had  

been  admitted  to  hospital  on  the  19th October,  1990  and  

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operated upon on 23rd October 1990.  The Commission has  

observed that as blood had been donated by the relatives of  

the complainant, it was likely that they had the information  

that  a  surgery  was  planned,  as  they  were  educated  and  

enlightened persons.  The Commission has, accordingly, held  

on the basis  of  the  evidence of Dr. Satyanarayana “that once  

the consent for excision biopsy through thoractomy was given,  

the  consent  for  a  moment (sic)  (removal?)  of  the  mass was  

implied.”

17. We see from the cross examination of the complainant  

that no consent for the operation had been taken.  Moreover, it  

is significant that even though the record of the case had been  

produced before the Commission, it was with some reluctance  

and  after  several  specific  orders,  but  the  written  consent  

which had allegedly been taken is not a part of the record.  It  

is  equally  significant  that in the written submissions which  

had been filed, a copy of the consent form of NIMS has been  

appended  but  not  the  actual  consent  taken  from  the  

complainant.  It must, therefore, be held that the withholding  

of the aforesaid document raises a presumption against the  

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NIMS and the attending Doctors.   We find that the consent  

given by the complainant  for the  excision biopsy cannot, by  

inference,  be  taken  as an implied consent  for  a surgery  

(save  in  exceptional  cases),  as   held   by    this  Court  in  

Samira  Kohli  vs.  Dr.  Prabha  Manchanda  &  Anr.  

(2008) 2 SCC 1.  The  two issues which are relevant for our  

purpose and raised before the Bench were:

(i) Whether informed consent of a patient  is  necessary  for  surgical  procedure  involving removal of reproductive organs?  If so, what is the nature of such consent?

(ii)  When  a  patient  consults  a  medical  practitioner,  whether  consent  given  for  diagnostic  surgery  can  be  construed  as  consent  for  performing  additional  or  further  surgical  procedure  –  either  as  conservative  treatment  or  as  radical  treatment – without the specific consent  for such additional or further surgery?

These two questions were answered in the following terms:

“Consent in the context of a doctor- patient  relationship,  means  the  grant  of  permission by the patient for an act to be  carried  out  by  the  doctor,  such  as  a  diagnostic,  surgical  or  therapeutic  procedure.  Consent  can  be  implied  in  some circumstances from the action of the  patient.  For  example,  when  a  patient  

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enters  a  dentist’s  clinic  and  sits  in  the  dental  chair,  his  consent  is  implied  for  examination,  diagnosis  and  consultation.  Except where consent can be clearly and  obviously implied, there should be express  consent. There  is,  however,  a  significant  difference in the nature of express consent  of the patient, known as “real consent” in  UK and as “informed consent” in America.  In UK, the elements of consent are defined  with reference to the patient and a consent  is considered to be valid and “real” when (i)  the patient gives it voluntarily without any  coercion; (ii)  the patient has the capacity  and competence to give consent;  and (iii)  the patient has the minimum of adequate  level of information about the nature of the  procedure to which he is consenting to. On  the other hand, the concept  of “informed  consent”  developed  by  American  courts,  while  retaining the basic requirements of  consent,  shifts  the  emphasis  on  the  doctor’s  duty  to  disclose  the  necessary  information  to  the  patient  to  secure  his  consent.  “Informed consent”  is defined in  Taber’s Cyclopedic Medical Dictionary thus:

“Consent that is given by a person after   receipt of the following information: the  nature  and  purpose  of  the  proposed  procedure  or  treatment;  the  expected  outcome and the likelihood of success;  the  risks;  the  alternatives  to  the   procedure  and  supporting  information  regarding  those  alternatives;  and  the  effect  of  no  treatment  or  procedure,   including  the  effect  on  the  prognosis  and the material  risks associated with   no  treatment.  Also  included  are  

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instructions concerning what should be  done if  the  procedure  turns  out  to  be  harmful or unsuccessful.”

The next question is whether in an action  for  negligence/battery  for  performance  of  an  unauthorized  surgical  procedure,  the  doctor  can  put  forth  as  defence  the  consent  given  for  a  particular  operative  procedure, as consent for any additional or  further operative procedures performed in  the interests of the patient. In  Murrary v.  McMurchy (1949) 2 DLR 442: (1949)1 WWR  989, the  Supreme  Court  of  British  Columbia,  Canada,  was  considering  a  claim  for  battery  by  a  patient  who  underwent a caesarean section. During the  course  of  caesarean  section,  the  doctor  found  fibroid  tumours  in  the  patient’s  uterus.  Being  of  the  view  that  such  tumours  would  be  a  danger  in  case  of  future  pregnancy,  he  performed  a  sterilization  operation.  The  Court  upheld  the claim for damages for battery. It held  that  sterilization  could  not  be  justified  under the principles of necessity, as there  was no immediate threat or danger to the  patient’s  health  or  life  and  it  would  not  have  been  unreasonable  to  postpone  the  operation to secure the patient’s consent.  The  fact  that  the  doctor  found  it  convenient  to  perform  the  sterilization  operation  without  consent  as  the  patient  was  already  under  general  anaesthesia,  was  held  to  be  not  a  valid  defence.  A  somewhat  similar  view was  expressed by  the Court of Appeal in England in F., In re,  (1933) 3DLR 260: 60 CCC 136. It was held  that  the  additional  or  further  treatment  

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which can be given (outside the consented  procedure) should be confined to only such  treatment as is necessary to  meet  the  emergency,  and  as  such  needs  to  be  carried out at once and before the patient  is  likely  to  be  in  a  position  to  make  a  decision  for  himself.  Lord  Goff  observed  (All ER p.566g-j)

“…Where, for example, a surgeon  performs  an  operation  without  his  consent  on  a  patient  temporarily  rendered unconscious in an accident,  he  should  do  no  more  than  is  reasonably  required,  in  the  best  interests  of  the  patient,  before  he  recovers  consciousness.  I  can see  no  practical  difficulty  arising  from  this  requirement,  which  derives  from  the  fact that the patient is expected before  long to regain consciousness and can  then  be  consulted  about  longer  term  measures.”

18.   The Court also considered the possibility that had the  

patient been conscious during surgery and in a position to give  

his consent, he might have done so to avoid a second surgery  

but observed that this was a non-issue as the patient’s right to  

decide  whether  he  should  undergo  surgery  was  inviolable.  

This is what the Court had to say:

“It  is  quite  possible  that  had  the  patient  been  conscious,  and  informed  

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about  the  need  for  the  additional  procedure, the patient might have agreed  to  it.  It  may  be  that  the  additional  procedure  is  beneficial  and  in  the  interests  of  the  patient.  It  may  be  that  postponement of the additional procedure  (say  removal  of  an  organ)  may  require  another surgery, whereas removal of the  affected  organ  during  the  initial  diagnostic  or exploratory surgery, would  save the patient from the pain and cost of  a second operation. Howsoever practical  or convenient  the reasons may be,  they  are not relevant.  What is relevant and of  importance is the inviolable nature of the  patient’s right in regard to his body and  his  right  to  decide  whether  he  should  undergo  the  particular  treatment  or  surgery  or  not.  Therefore  at  the  risk  of  repetition,  we  may  add  that  unless  the  unauthorized  additional  or  further  procedure is  necessary  in  order  to save  the  life  or  preserve  the  health  of  the  patient and it would be unreasonable (as  contrasted  from  being  merely  inconvenient)  to  delay  the  further  procedure  until  the  patient  regains  consciousness  and  takes  a  decision,  a  doctor  cannot  perform  such  procedure  without the consent of the patient.”

19. It is clear from the evidence in the case before us that  

there was no urgency in the matter as the record shows that  

discussions for the deferment of the proposed  excision biopsy  

had taken place between the complainant, his parents and Dr.  

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Satyanarayana in the OPD and the consent for the procedure  

had been obtained. Also in the light of the observations in the  

cited  cases,  any  implied  consent  for  the  excision   of  the  

tumour cannot be inferred.   

20. The broad principles under which medical negligence as  

a  tort  have  to  be  evaluated,  have  been  laid  down  in  the  

celebrated case of Jacob Mathew vs. State of Punjab & Anr.  

(2005) 6 SCC 1.  In this judgment, it has been observed that  

the  complexity  of  the  human  body,  and  the  uncertainty  

involved in medical procedures is of such great magnitude that  

it is impossible for a doctor to guarantee a successful result  

and the only assurance that he “can give or can be understood  

to  have  given by implication is  that  he  is  possessed of  the  

requisite  skill  in  that  branch  of  profession  which  he  is  

practicing and while undertaking the performance of the task  

entrusted  to  him  he  would  be  exercising  his  skill  with  

reasonable  competence.”   The  Bench  also  approved  the  

opinion of  McNair,J in (Bolam v. Friern Hospital Management  

Committee (1957) 2  All ER 118 (QBD), in the following words:

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“[W]here  you  get  a  situation  which  involves the use of some special skill or  competence, then the test as to whether  there has been negligence because has  not got this special skill. The test is the  standard  of  the  ordinary  skilled  man  exercising  and  professing  to  have  that  special  skill.  A  man need  not  possess  the  highest  expert  skill  …  It  is  well- established law that it is sufficient if he  exercises  the  ordinary  skill  of  an  ordinary competent man exercising that  particular  art.”  (Charlesworth  &  Percy,  ibid., para 8.02)

The Bench finally concluded its opinion as follows:

“We sum up our conclusions as under:

         (1) Negligence is the breach of a duty  caused  by  omission  to  do  something  which  a  reasonable  man  guided  by  those  considerations  which  ordinarily  regulate  the  conduct  of  human affairs  would do, or doing something which a  prudent and reasonable man would not  do. The definition of negligence as given  in  Law  of  Torts,  Ratanlal  &  Dhirajlal  (edited by Justice G.P.  Singh),  referred  to  hereinabove,  holds  good.  Negligence  becomes actionable on account of injury  resulting  from  the  act  or  omission  amounting to negligence attributable to  the  person  sued.  The  essential  components  of  negligence  are  three:  “duty”, “breach” and “resulting damage”.

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        (2) Negligence in the context of the  medical profession necessarily calls for  a treatment with a difference. To infer  rashness or negligence on the part of a  professional,  in  particular  a  doctor,  additional considerations apply. A case  of  occupational  negligence is different  from one of professional negligence. A  simple  lack  of  care,  an  error  of  judgment or an accident, is not proof  of negligence on the part of a medical  professional.  So  long  as  a  doctor  follows  a  practice  acceptable  to  the  medical  profession  of  that  day,  he  cannot  be  held  liable  for  negligence  merely  because  a  better  alternative  course  or  method  of  treatment  was  also  available  or  simply  because  a  more  skilled  doctor  would  not  have  chosen  to  follow  or  resort  to  that  practice  or  procedure  which  the  accused followed. When it comes to the  failure of taking precautions, what has  to  be  seen  is  whether  those  precautions  were  taken  which  the  ordinary experience of men has found  to be sufficient; a failure to use special  or  extraordinary  precautions  which  might  have  prevented  the  particular  happening cannot be the standard for  judging the alleged negligence. So also,  the  standard of  care,  while  assessing  the  practice  as  adopted,  is  judged in  the light of knowledge available at the  time  of  the  incident,  and  not  at  the  date  of  trial.  Similarly,  when  the  charge  of  negligence  arises  out  of  failure  to  use  some  particular  equipment, the charge would fail if the  

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equipment was not generally available  at  that  particular  time  (that  is,  the  time  of  the  incident)  at  which  it  is  suggested it should have been used.

           (3) A professional may be held liable for  

negligence on one of the two findings:  either  he  was  not  possessed  of  the  requisite  skill  which  he  professed  to  have  possessed,  or,  he  did  not  exercise,  with  reasonable  competence  in  the  given case,  the  skill  which he  did  possess.  The  standard  to  be  applied for judging, whether the person  charged  has  been  negligent  or  not,  would  be  that  of  an  ordinary  competent  person  exercising  ordinary  skill  in  that  profession.  It  is  not  possible  for  every  professional  to  possess the highest level of expertise or  skills  in  that  branch  which  he  practices. A highly skilled professional  may be  possessed of  better  qualities,  but that cannot be made the basis or  the  yardstick  for  judging  the  performance  of  the  professional  proceeded  against  on  indictment  of  negligence.

         (4) The test for determining medical  negligence as laid down in Bolam case  (1957) 2  All  ER 118 (QBD)holds good  in its applicability in India.

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21. The observations in the aforesaid case were reiterated in  

State of Punjab vs. Shiv Ram & Ors. (2005) 7 SCC 1.  

In this case, a suit had been filed against State of Punjab  

and  a  lady  doctor,  a  State  Government  employee,  

claiming damages for a failed tubectomy as the woman  

conceived and gave birth to a child notwithstanding the  

procedure.  The suit             was decreed against the  

State Government.  This is what this Court had to say  

while allowing the appeal:

“The plaintiffs have not alleged that  the  lady  surgeon  who  performed  the  sterilization operation was not competent  to perform the surgery and yet ventured  into doing it.  It is neither the case of the  plaintiffs,  nor  has  any  finding  been  arrived at by any of the courts below that  the  lady  surgeon  was  negligent  in  performing the surgery. The present one  is  not  a  case  where  the  surgeon  who  performed  the  surgery  has  committed  breach  of  any  duty  cast  on  her  as  a  surgeon. The surgery was performed by a  technique  known  and  recognized  by  medical science.  It is a pure and simple  case  of  sterilization  operation  having  failed  though  duly  performed.  The  learned Additional Advocate General has  also very fairly not disputed the vicarious  liability of the State, if only its employee  doctor  is  found  to  have  performed  the  

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surgery negligently and if  the unwanted  pregnancy  thereafter  is  attributable  to  such  negligent  act  or  omission  on  the  part of the employee doctor of the State.”

22. The Court further held forth a caution that if   doctors  

were frequently called upon to answer charges having criminal  

and  civil  consequences,  it  would  frustrate  and  render  

ineffective the functioning of the medical profession as a whole  

and if the medical profession was “hemmed by threat of action,  

criminal  and  civil,  the  consequence  will  be  a  loss  to  the  

patients……..  and no doctor would take a risk,  a justifiable  

risk in the circumstances of a given case, and try to save his  

patient  from  a  complicated  disease  or  in  the  face  of  an  

unexpected problem that confronts him during the treatment  

or the surgery.”

23. The evidence in the present case has to be evaluated in  

the background of the above observations.  It is clear that a  

mere  misjudgment  or  error  in  medical  treatment  by  itself  

would not be decisive of negligence towards the patient and  

the knowledge of medical practice and procedure available at  

the  time  of  the  operation  and  not  at  the  date  of  trial,  is  

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relevant. It is also evident that a doctor rendering treatment to  

a patient  is  expected to have reasonable  competence in his  

field. (Bolam’s principle).  It is the case of the complainant that  

it is  the lack of care and caution and the neglect on the part  

of the attending doctors, and Dr. Satyanarayana in particular,  

to  make the necessary pre-operative  investigations that had  

led  to  the  complications  at  the  time  of  the  operation  and  

thereafter.

24. We  now  come  to  the  allegation  with  regard  to  the  

negligence  shown at  the  stage  of  the  operation  itself.   The  

record  shows  that  the  tumour  4x4  cm  in  dimension  was  

located on the left upper chest side of the thorax and there  

had been erosion of the 2nd, 3rd and 4th ribs. The discharge  

record pertaining to the operation also reveals that there was a  

one cm size opening in the vertebral body exposing the spinal  

cord at the thorax level and that the tumour had been excised  

along with the 4th rib.  The record also shows that the tumour  

was not only confined to the thorax but had extended into the  

posterior  mediastinal  column  as  well,  showing  that  it  had  

some connection with the spinal cord.  It is in this background  

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that  the  complainant  has  argued  that  whereas  a  cardio  –

thoracic  Surgeon was undoubtedly competent to perform the  

surgery for the excision of the tumour but as the tumour had  

extended  into  the  posterior  mediastinal  column  containing  

inter-costal  blood  vessels  and  nerves,  the  involvement  of  a  

Neuro Surgeon was essential and as this procedure had not  

been adopted a case of negligence or indifference on the part of  

the  attending  doctors  had  been  proved.   It  has  also  been  

highlighted time and again that the information that the 2nd,  

3rd and in particular 4th ribs had eroded was available with the  

doctors long before the operation and thus the fact the tumour  

had  extended  into  the  mediastinal  column  was  a  clear  

possibility.  In answer to the aforesaid allegations, it has been  

submitted that as the CT scan and X-ray had shown a lesion  

in  the  thorax  with  the  erosion  of  the  ribs  and  as  no  

involvement of the vertebral column had been revealed, and  

further  that  the  fact  the  tumour  had  penetrated  into  the  

vertebral body had been noticed only after the tumour mass  

had been excised, the involvement of a neuro surgeon was not  

called for.  In the written submissions filed on behalf of Dr.  

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Satyanarayana,  it  has  been  pointed  out  that  when  it  was  

noticed that there was some involvement of the vertebral body,  

Professor  I  Dinaker  a  Consultant  Neuro  Surgeon  had  been  

requested to join the operating team in the operation theatre  

and on examination he had found that no further intervention  

as per his specialty was required.    

25. We  have  considered  the  opposing  submissions  very  

carefully.  It appears to us that Dr. Satyanarayana’s evidence  

shows a great measure of negligence in the operation.  In his  

affidavit,  he  has  stated  that  if  it  had  been  found  that  the  

tumour  had  penetrated  into  the  spinal  column  the  patient  

would have been referred to a Neuro Surgeon as well. To our  

mind,  this  statement  itself  when  read  with  the  incomplete  

diagnostic procedures that had been adopted, show that had  

the necessary tests been performed, the fact that the tumour  

had penetrated into  the  vertebral  column, would have been  

revealed.  Dr. Satyanarayana further goes on to say that it was  

not  a  case  of  interference  with  the  spinal  cord  and  in  

justification he has stated that after operation of the tumour  

had been removed Professor I. Dinaker, had been called in and  

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on examination he had noticed only a bony erosion and no  

involvement of the spinal cord.   We are of the opinion that  

this  half-baked diagnosis at the stage of  the operation only  

after the excision of the tumour does no credit to the Doctor.  

It  is  also  significant  that  the  operation  record  dated  23rd  

October, 1990 shows that the tumour mass had extended into  

the inter-vertebral foramen and that there was an opening one  

cm in size in the vertebral body exposing the spinal cord.  In  

this  connection  the  complainant  has  placed  reliance  on an  

Article  titled  “Central  Neurogenic  Tumours  of  the  Thoracis  

Region” by Farid M. Shamji, M.D., FRCSC, Thomas R. Todd,  

MD, FRCSC, Eric Vallieres, MDFRCSC, Harold J. Sachs, MD  

FRCSC, Brien G. Benoit, MD FRCSC.   wherein it has been  

observed as under:

“Thoracic  neurogenic  tumours  differentiate  from  the  neuroepithelium  that originates in the neural crest during  the  development  of  the  peripheral  nervous  system.  Most  of  the  peripheral  nervous tissue in the thorox is situated in  the  posterior  mediastinum  in  the  paravertebral gutters. Consequently, this  is  the  commonest  location  for  the  majority  of  intrathoracic  neurogenic  tumours – at the site of the sympathetic  

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chain and in the path of the spinal and  intercostals nerves.

The  histologic  type  of  neurogenic  tumour is less important to the thoracic  surgeon than the anatomical relationship  of  the  tumour  to  other  posterior  mediastinal structures and, in particular,  to  the  intervertebral  foramen.  The  possibility  of  intraspinal  extension  through the foramina is the single most  important  factor  affecting  surgical  intervention.

We  present  our  experience,  albeit  small, because it outlines the importance  of  thorough  anatomic  assessment  of  these  tumours.  It  stresses  the  involvement of the  neurosurgeon in the  assessment,  decision  making  and  surgical intervention.”

and   

“Patients  with  neurogenic  tumours  arising  in  the  thorax  should  undergo  early  surgical  exploration  and  complete  resection  of  the  tumour  if  possible.  Arising within the confines of the narrow  thoracic spinal canal or the intervertebral  foramen,  these  lesions  may  become  symptomatic quite early on, with spinal- cord compression or segmental radicular  pain  caused  by  early  spinal-nerve  involvement.  Neurosurgical  consultation  is a prerequisite for safe removal of these  tumours  when  the  intervertebral  foramina are traversed. Fortunately, most  

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intrathoracic  neurogenic  tumours  are  small,  benign,  unilateral,extrapleural.  The  diagnosis  can  often  be  established  readily with current diagnostic  imaging  techniques,  and  the  tumour  can  be  removed  safely  with  adequate  exposure  through  a  posterolateral  thoracotomy.  When  the  thoracic  surgeon  suspects  preoperatively  that  the  tumour  has  an  intraspinal  extension,  the  neurosurgeon  should be consulted before exploration is  considered. Indeed,  in  all  patients  who  have  a  lesion  adjacent  to  the  inter- vertebral  foramen,  a  neurosurgical  consultation should be obtained. In these  circumstances,  the  patient’s  spinal  cord  is  at  considerable  risk  of  permanent  damage  from  ill-advised  surgical  manoeuvres. The procedures that should  not  be  attempted  without  intraoperative  assistance  of  a  neurosurgeon  include  enlarging  the  intervertebral  foramen  (foraminectomy),  application  of  undue  traction on the tumour during dissection,  tamponading the bleeding vessels in the  foramen when hemorrhage is difficult to  control  and  partial  removal  of  the  tumour. Consequently,  it  is  of  utmost  importance  that  all  neurogenic  tumours  arising  in  the  posterior  location  be  studied  very  carefully  with  special  reference  to  the  intervertebral  foramen  and  possible  intraspinal  extension.  The  value  of  computed  tomography  and  magnetic  resonance  imaging  has  been  well  established.  Prior  knowledge  of  a  dumbbell  tumour or of  a predominantly  intrathoracic  tumour  with  foraminal  extension  dictates  a  combined  thoracic-

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neurosurgical  procedure.  The  approach  consists  of  a  standard  posteroloteral  thoracotomy  and  laminectomy.  Dural  defects should be closed meticulously to  prevent  the  development  of  a  subarachnoid-pleural fistula and possible  meningitis.

Controversy exists over the urgency  of  excising  neurogenic  tumours  in  the  posterior  mediastinum.  Those  that  are  lateral to the costovertebral gutter may be  managed  conservately  with  surgery  reserved  for  when  enlargement  occurs.  For  the  more  centrally  located  tumours  such as those presented here, we advise  surgical  intervention  for  the  following  reasons:

An  increase  in  the  size  of  the  tumour  mass,  which  may  increase  the  risk or difficulty of surgery from osseous  erosion or intraspinal extension.

The possibility  of  malignancy must  be taken into account, realizing that most  neurogenic  tumours  are  benign  (overall  rate  of  malignancy  ranging  from 3% to  19%).  Furthermore,  the  possibility  of  malignant degeneration should be borne  in mind, and it  is difficult  to find exact  data on this point in the literature.

The  risk  of  permanent  damage  to  the spinal cord from compression due to  intraspinal  tumour  or  intraspinal  extension  from  an  intrathoracic  lesion.  Nearly 10% of neurogenic tumours of the  posterior  mediastinum  extend  into  the  

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spinal  canal  through  the  intervetebral  foramen; neurologic sumptoms indicating  intraspinal extension occur in about 60%  of dumbbell tumours, therefore the dual  location should always be considered and  defined preoperatively.

Conclusions

Careful  evaluation  and  surgical  resection  of  benign  neurogenic  tumours  of  the  thorax  result  in  a  low  morbidity  and  excellent  long-term  results.  Collaboration between thoracic surgeons  and neurosurgeons is recommended. For  malignant  lesions,  if  resection  is  incomplete, further treatment in the form  of  radiotherapy or chemotherapy should  be instituted.”

Likewise,  in  another  Article  “The Principles  of  Surgical  

Management in Dumbbell Tumours”  by Yuksel M, et al, it has  

been stated:-

“METHODS:  In  all  patients  that  have been operated in our clinic during  1992-93, we preferred one stage removal  described  by  Akwari  that  consists  of  posterior  laminectomy  by  neurosurgical  team to free the tumour within the spinal  cord  followed  by  a  posterolateral  thoracotomy and excision of the tumour  by thoracic surgeons in the same setting.  RESULTS: All three patients are alive and  

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free  of  symptoms  after  23,  16  and  13  months  respectively.  According  to  the  pathological  examinations  of  the  specimens in the three patients, the exact  diagnosis were reported as neurofibroma,  paraganglioma  and  pheochromocytoma  respectively.  CONCLUSIONS: In  recent  reports, a combined surgical approach is  recommended  for  dumb-bell  neurogenic  tumours  in  posterior  mediastinum.  We  also  recommend  a  combined  and  one  stage  removal  of  dumb-bell  neurogenic  tumours  if  possible.  A  team-work  of  thoracic and neurosurgeon will minimize  the  morbidity  and  mortality  after  the  surgical procedure, as well as giving the  opportunity to remove the tumour totally  in one session,”  

Likewise  in  “Dumbbell  neurogenic  tumours  of  the  mediastinum,  Diagnosis  and Management”  by Akwari OE, ct al, it  has been stated:-

“Among  706  collected  cases  of  mediastinal  neurogenic  tumous were 69  patients  (9.8%)  with  extension  through  an  intervertebral  foramen,  so  that  the  composite  neoplastic  mass  was  dumbbell-shaped.  Although  only  10%  f  these dumbbell tumours were malignant,  the  majority  of  the  patients  presented  with neurologic symptoms of spinal cord  compression.  In  about  40% of  reported  cases,  the  intraspinal  component,  although  present,  was  not  clinically  apparent.  Such  cases  of  asymptomatic  intraspinal  extension  should  be  suspected  when  special  roentgenologic  

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views of the spine demonstrate erosion of  the  vertebral  pedicle  or  enlargement  of  the  intervertebral  foramen  adjancent  to  the posterior  mediastinal  mass. Workup  of  these  patients  should  include  myelographic  studies  to  determine  whether  a  dumbbell  tumour  is  indeed  present; if it is, surgery should be carried  out by a team of thoracic surgeons and  neurosurgeons in a one stage combined  resection of both the intraspinal and the  mediastinal  component  of  the  tumour.  With  early  diagnosis  and  surgical  intervention,  long  term  survival  is  the  rule. When the patient is in the pediatric  age  bracket,  an  orthopedic  surgeon  should be included on the team to help  minimize  subsequent  skeletal  growth  deformity.”

In  “Combined  Laminectomy  and  Thoracoscopic  Resection  of  Dumbell  Neurofibrema: Technical Case Report” by  Citow  is,  et  al,  the  authors  have  observed:-  

“We describe combined laminectomy  and thoracoscopic surgery for removal of  a  dumbbell  thoracic  spinal  tumour  to  demonstrate  the  feasibility  of  such  an  approach.  CLINICAL  PRESENTATION:  We present the case of a 29-year-old man  who developed chest pain and spinal cord  compression  from  a  thoracic  dumbbell  neurofibroma.  TECHNIQUE:  Surgical  approaches  for  benign  nerve  sheath  tumours that extend from the spinal cord  into the thoracic cavity include combined  

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laminectomy  and  thoracotomy  either  in  one  or  two  stages,  or  a  lateral  extracavitary  approach  involving  laminectomy,  facetectomy,  and  rib  resection in a single stage. We performed  a  combination  laminectomy  and  thoracoscopic  tumour  resection  in  a  single stage with good results.”

A reading of all three texts pointedly refer to the fact that  

in  a  case   of  a  tumour  in  the  posterior  mediastinal,  the  

possibility of the extension of the tumour  into the foramen  

and the vertebral column must be kept in mind and a neuro  

surgeon must be associated with the diagnosis and the actual  

operation.

26. Mr.  Tandale,  the  learned  counsel  for  the  NIMS  has,  

however,  raised  certain  issues  before  us  in  his  written  

submissions.  He has pointed out that a FNAC performed on a  

neurofibroma was often indeterminate and  an excision biopsy  

was called for  and this  is  precisely  the  procedure  that  had  

planned on the crucial day.  In this connection, he has relied  

on  several  texts  including  Glenn’s  Thoracic  and  

Cardiovascular Surgery, Sixth Edition, Volume II (supra) and  

Harrison’s General Principles of Internal Medicine 11th Edition,  

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Chapter 214 titled Diseases of the Pleura, Mediastinum and  

Diaphragm,  at  pages  1127 and 1128 and in  particular  the  

following passages :

“Neurogenic  tumors  are  the  most  common primary  mediastinal  neoplasms  and  are found almost  exclusively  in the posterior  mediatenum  near  the  paravertebral  gutter.  The  majority  of  these  tumours  are  benign,  Neurofibromas,  Schwanomas,  ganglionomas  are the commonest tumors see,(page 1128).

The  Mediastinum  occupies  the  central  portion  of  the  chest  and  is  anatomically  defined  by  the  thoracic  inlet  above  the  diaphragm  below,  the  mediastinal  pleura  laterally,  the  paravertebral  gutter  posteriorly,  and the sternum aneteiorly.  The Mediastinum  is  divided  into  four  compartments  for  descriptive  purposes (fig.214-2).  The superior  Mediastinum is bounded above by the plane of  the  first  rib  and below by  an imaginary  line  drawn anterioposteriorly from the sternal angle  to  the  lower  edge  of  the  fourth  thoracic  vertebra.   It  contains  the  trachea,  upper  esophagus, thymus gland, thoracic duct, great  veins, arch of the aorta and its branches, and  the phrenic, vagus, and left recurrent laryngeal  nerves.  Below  the  superior  Mediastinum  lie  three  further  compartments.  The  anterior  Mediastinum contains fibroareolar tissue and  lymph  nodes,  but  no  major  structures.  The  middle  Mediastinum  contains  the  heart,  ascending  aorta,  great  venis,  pulmonary  artery,  and  pleuric  nerves.  The  posterior  Mediastinum contains the esophagus, thoracic  

53

duct,  descending  aorta,  symphathetic  chain,  and intercostals and vagal nerves(Page 1127).

27. He has also referred us to the cross examination of Dr.  

A.S. Hegde, the expert witness examined at the instance of the  

complainant that there was nothing wrong in the procedure  

adopted  by  Dr.  Satyanarayana  even  after  he  had  seen  the  

tumour in the chest cavity.  We are of the opinion that the very  

portions that have been relied upon by Mr.  Tandale  in fact  

support  the  argument  that  has  been  raised  by  the  

complainant  that  the  Neurofibromas  which  are  Neurogenic  

tumours  were  to  be  found  exclusively  in  the  posterior  

mediastinal near the paravertebral gutter, and that the tumor  

had  extended  into  the  vertebral  column  was  therefore  a  

possibility.  We also see from the statement of Dr. A.S. Hegde  

that  Ischemic  Myleopathy  which had resulted  in  Paraplegia  

was on account of the cutting off of the blood supply to the  

spinal cord as a result of the operation to remove the tumor.  

The cross-examination of Dr. A.S. Hegde, cannot therefore, be  

looked at in isolation. It must, therefore, be concluded that the  

attending doctors were seriously remiss in not associating a  

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neuro-surgeon at the pre-operative as well as at the stage of  

the operation.

28. It has also been submitted that in the face of complicated  

questions   of  fact  involving  medical  procedures,  it  was  

inappropriate  for  the  Commission  to  have  entered  into  the  

dispute and that the matter ought to have been relegated to  

the civil court.  Mr.  Tandale  in  his  written  submissions  has  

also  raised  some  pleas  and  levelled  allegations  which  are  

wholly  uncalled  for.   We  reproduce  some  of  these  herein  

under:-    

“As mentioned in the list  of  events  above, after the cross examination of the  complainant and his  father on 23rd and  24th May  1994,  the  affidavits  of  examination  in  chief  of  Dr.P.V.  Satyanarayana  and  Dr.  U.N.Das  were  filed on 22.6.1994 about 7 years later, on  16.8.94,  the  National  Commission  directed  the  complainant  to  file  an  application  for  examination  of  expert  medical  witness.  Thereafter  Dr.A.S.  Hegde  was  examined  as  PW3  on  23.12.94.

This  sequence  would  be  sufficient  to  indicate  that  the  National  Commission  had already reached a decision to award  compensation to the complainant; hence  

55

it  intended  to  secure  support  to  its  already reached conclusions.

Such an approach is unheard of in  judicial  adjudications.  The  complainant  was represented by a designated Senior  Advocate  as  seen from the title  page  of  the  judgment  under  appeal.  The  complainant  therefore  did  not  need any  legal  advice  from  the  Commission.  The  institute  was  denied  equal  and  even  treatment.

The  cross  examination  of  Dr.P.V.  Satyanarayana  and  Dr.U.N.Das  was  recorded  on  20.05.1996,  and  thereafter  on  25.4.1997,  the  entire  case  record  of  diagnostic,  medial  and  surgical  procedures pertaining to the complainant  was  filed  in  the  National  Commission.  The arguments  were  heard on 4.9.1998  and written submissions were filed by the  Institute on 5.10.1998.

While appreciating the evidence of Dr.  P.V.Satyanarayana  and  Dr.U.N.Das,  the  National  Commission  has  referred  to  (i)  Gray’s  Anatomy,  Angiology  and  Neurology,  (ii)  Text  Book  of  General  Thoracic Surgery by Thomas W. Shields  3rd Edition  page  1106,  (iii)  Annals  of  Thoracic Surgery Vol. 1995 (59) Division  of Thoracic & Cardio-Vascular Surgery &  Short  Trauma  Centre  University  of  Maryland,  (iv)  Complications  of  Intra  Thoracic Surgery, and (v) King & Smith:  Contemporary Imaging Techniques (632),  (750-753).

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The National Commission had taken  recourse to picking up sentences from the  examination  in  chief  as  well  as  of  the  cross  examinations  of  Dr.  P.V.  Satyanarayan  and  Dr.U.N.Das,  and  compared those fragmented portions with  the passages from the above text books  and recorded findings of negligence.”

29.      These submissions have absolutely no merit.  This  

Court in Dr. J.J.Merchant  & Ors. Vs. Shrinath Chaturvedi  

(2002) 6 SCC 635 while dealing with the argument that the  

matter should be relegated to the civil court observed:

“In  the  present  case,  there  is  inordinate  delay  of  about  nine  years  in  disposal  of  complaint.  However,  if  this  contention raised by the learned counsel  for the appellants is accepted, apart from  the  fact  that  it  would  be  unjust,  the  whole purpose and object of enacting the  Consumer  Protection  Act,  1986  (hereinafter  referred  to  as  “the  Act”)  would  be  frustrated.  One  of  the  main  objects of the Act is to provide speedy and  simple  redressal  to  consumer  disputes  and for that a quasi-judicial machinery is  sought to be set up at the district, State  and  Central  level.  These  quasi-judicial  bodies  are  required  to  observe  the  principles  of  natural  justice  and  have  been empowered to give relief of a specific  nature  and  to  award,  wherever  appropriate, compensation to consumers.  Penalties  for  non-compliance  with  the  

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orders given by the quasi-judicial bodies  have also been provided. The object and  purpose of enacting the Act is to render  simple, inexpensive and speedy remedy to  the  consumers  with  complaints  against  defective goods and deficient services and  the  benevolent  piece  of  legislation  intended  to  protect  a  large  body  of  consumers  from  exploitation  would  be  defeated.   Prior  to  the  Act,  consumers  were required to approach the civil court  for securing justice for the wrong done to  them and it is a known fact that decision  in  a  suit  takes  years.  Under  the  Act,  consumers  are  provided  with  an  alternative,  efficacious  and  speedy  remedy. As such, the Consumer Forum is  an  alternative  forum  established  under  the  Act  to  discharge  the  functions  of  a  civil court. Therefore, delay in disposal of  the complaint would not be a ground for  rejecting the complaint and directing the  complainant to approach the civil court.”

30.     Mr. Tandale has, however, relied on  Indian Medical  

Assn. vs. V.P.Shantha & Ors. (1995) 6 SCC 651,   and in  

particular on the following observations:

It  has  been  urged  that  proceedings  involving  negligence  in  the  matter  of  rendering  services  by  a  medical  practitioner  would  raise  complicated  questions requiring evidence of experts to  be recorded and that the procedure which  is followed for determination of consumer  

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disputes  under  the  Act  is  summary  in  nature  involving  trial  on  the  basis  of  affidavits  and  is  not  suitable  for  determination  of  complicated  questions.  It  is  no  doubt  true  that  sometimes  complicated  questions  requiring  recording of evidence of experts may arise  in a complaint about deficiency in service  based  on  the  ground  of  negligence  in  rendering medical  services by a medical  practitioner; but this would not be so in  all  complaints  about  deficiency  in  rendering  services  by  a  medical  practitioner.  There  may  be  cases  which  do not raise such complicated questions  and the deficiency in service may be due  to  obvious  faults  which  can  be  easily  established such as removal of the wrong  limb or the performance of an operation  on the wrong patient or giving injection of  a  drug  to  which  the  patient  is  allergic  without looking into the out patient card  containing the warning (as in  Chinkeow  v. Government of Malaysia (1967) 1 WLR  813 P.C.) or use of wrong gas during the  course of an anesthetic or leaving inside  the  patient  swabs  or  other  items  of  operating  equipment  after  surgery.  One  often reads about such incidents in the  newspapers.  The  issues  arising  in  the   complaints in such cases can be speedily  disposed of by the procedure that is being  followed  by  the  Consumer  Disputes   Redressal Agencies and there is no reason  why  complaints  regarding  deficiency  in  service  in  such  cases  should  not  be  adjudicated  by  the  Agencies  under  the  Act. In complaints involving complicated  issues requiring recording of evidence of  

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experts, the complainant can be asked to  approach the Civil Court for appropriate  relief.  Section  3 of  the  Act  which  prescribes that the provisions of the Act  shall  be  in  addition  to  and  not  in  derogation of the provisions of any other  law for the time being in force, preserves  the right of the consumer to approach the  Civil  Court  for  necessary relief.  We are,  therefore,  unable  to  hold  that  on  the  ground of  composition of  the Consumer  Disputes  Redressal  Agencies  or  on  the  ground of the procedure which is followed  by the said Agencies for determining the  issues  arising  before  them,  the  service  rendered by the medical practitioners arc  not  intended  to  be  included  in  the  expression 'service' as defined in Section  2(1)(o)   of the Act.   

31.       It has been argued that the present case was one  

which ought to be relegated to the civil  court in view of the  

above  observations.   We  find  that  a  bare  reading  of  the  

judgment in J.J. Merchant’s case itself gives an answer to the  

question posed.  It is significant that the operation had been  

performed on the 23rd October, 1990 and the complaint filed  

on 9th April, 1993 and after arguments had been concluded on  

4th September 1998 the decision had been rendered on 16th  

February 1999.  As a matter of fact, it appears from the record  

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that   NIMS  did  not,  at  any  stage,  seriously  challenge  the  

propriety of the Commission going into the dispute and even  

consented  to  the  recording  of  the  evidence  by  the  State  

Commission.  It is even more significant that in an affidavit of  

June 1994 filed on behalf of NIMS, a request had been made  

that a specialist from AIIMS, New Delhi be called so that the  

question of negligence, if any, could be properly investigated,  

but the deponent further stated that he had no objection if the  

Commission  did  not  propose  to  follow  this  procedure.   A  

similar option to name some expert witness or witnesses was  

given to the complainant who, accordingly, on an application  

filed  on  27th August,  1994  proposed  the  name  of  Dr.  A.S.  

Hegde  who  was  examined  as  a  witness.   The  record  also  

reveals  that  after  arguments  had  been  concluded  on  4th  

September 1998 and two weeks’ time had been given to the  

parties  to  file  written  submissions,  that  an  application  had  

been made on 5th October 1998 to summon an expert witness  

from the AIIMS. This application had been declined.   We are,  

therefore, of the opinion that the remarks about the procedure  

followed by the National Commission which have been quoted  

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above, are to say the least uncharitable and uncalled for. The  

judgment in Indian Medical Association’s case (supra), cited  

by Mr. Tandale, primarily explains the concept of ‘service’ as  

defined  under  the  Customer  Protection  Act  and  on  the  

contrary, some of the observations made therein support the  

complainant’s case all the way.

32. We are also cognizant of the fact that in a case involving  

medical  negligence,  once  the  initial  burden  has  been  

discharged  by  the  complainant  by  making  out  a  case  of  

negligence on the part of the hospital or the doctor concerned,  

the onus then shifts  on to the hospital  or  to  the attending  

doctors and it is for the hospital to satisfy the Court that there  

was no lack of care or diligence.   In  Savita Garg (Smt.)vs.  

Director, National Heart Institute  (2004) 8 SCC 56  it has  

been observed as under:

“Once  an  allegation  is  made  that  the  patient  was  admitted  in  a  particular  hospital  and  evidence  is  produced  to  satisfy  that  he  died  because  of  lack  of  proper  care  and  negligence,  then  the  burden lies on the hospital to justify that  there was no negligence on the part of the  treating doctor or hospital.  Therefore, in  any  case,  the  hospital  is  in  a  better  

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position to disclose what care was taken  or what medicine was administered to the  patient.  It is the duty of the hospital to  satisfy that there was no lack of care or  diligence.  The hospitals are institutions,  people expect better and efficient service,  if  the  hospital  fails  to  discharge  their  duties  through  their  doctors,  being  employed  on  job  basis  or  employed  on  contract  basis,  it  is  the  hospital  which  has  to  justify  and  not  impleading  a  particular  doctor  will  not  absolve  the  hospital of its responsibilities.”

 33. In the light of the above facts, we have no option but to  

hold that the attending doctors were seriously remiss in the  

conduct  of  the  operation  and  it  was  on  account  of  this  

negligence  that  the  Paraplegia  had  set  in.   We  accordingly  

confirm the findings of the Commission on this score as well.

34. The Tribunal has also found that the complainant had to  

undergo great agony and inconvenience for lack of proper post  

operative medical care.  We, however, see that no specific case  

has  been  spelt  out  on  this  score  and  only  general  

observations, stemming from the complications arising out of  

an operation gone wrong, have been made.  We need to say  

nothing more on this aspect.

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35. The  question  of  compensation  which  has  been  hotly  

debated and discussed during the course of  arguments,  now  

needs  to  be  dealt  with.   Before  the  Commission,  the  

complainant assessed his claim at a little over Rs.4.61 cores. As  

already observed above, the Commission has thought it fit  to  

award compensation under the following heads:

(a) Rs.8  lakh  (expected  to  yield  a  monthly  interest  of  about  

Rs.8,000/-] towards prospective charges for physiotherapy,  

nursing and associated expenses;

(b) Rs.4 lakh ( likewise expected to yield a monthly interest of  

about  Rs.4,000/-)  for  supplementing  the  complainant’s  

future earnings, and  

(c) Rs.2  lakh  as  compensation  for  mental  agony,  physical  

suffering and pain and also for physiotherapy, nursing and  

associated expenses already incurred by him.                      

36.   In  addition,  a  sum  of  Rs.1.5  lakh  has  been  given  as  

compensation  to  the  complainant’s  parents  for  their  agony,  

stress and depression and the  future  care  they may have to  

bestow  on  their  son.   A  total  sum  of  Rs.15.5  lakh  has,  

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accordingly  been determined payable  by NIMS,  the  appellant  

before us.   

37.  The  complainant,  who  has  argued  his  own  case,  has  

submitted written submissions now claiming about 7.50 Crores  

as  compensation  under  various  heads.  He  has,  in  addition  

sought a direction that a further sum of  Rs.  2 crores be set  

aside to be used by him should some developments beneficial to  

him in the  medical  field  take  place.  Some of  the  claims  are  

untenable and we have no hesitation in rejecting them.   We,  

however, find that the claim with respect to some of the other  

items need to be allowed or enhanced in view of the peculiar  

facts  of  the  case.   Concededly,  the  complainant  is  a  highly  

qualified individual and is gainfully employed as an IT Engineer  

and as  per  his  statement  earning a  sum of  Rs.28  Lakh per  

annum though he is, as of today, about 40 years of age.  The  

very  nature  of  his  work  requires  him  to  travel  to  different  

locations but as he is confined to a wheel chair he is unable to  

do  so  on his  own.   His  need for  a  driver  cum attendant  is,  

therefore,  made  out.   The  complainant  has  worked  out  the  

compensation under this head presuming his working life to be  

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upto the age of 65 years. We feel that a period of 30 years from  

the date  of  the  Award of  the  Commission  i.e.  16th February,  

1999, rounded off  to Ist March, 1999, would be a reasonable  

length of time.   A sum of Rs.2,000/- per month for a period of  

30  years  (rounded  off  from  1st of  March  1999)  needs  to  be  

capitalized.    We,  accordingly,  award  a  sum of  Rs.7.2  Lakh  

under this head.   The complainant has also sought a sum of  

Rs.49,05,800/-  towards  nursing care  etc.  as he is  unable  to  

perform even his daily ablutions without assistance.  He has  

computed this figure on the basis of the salary of a Nurse at Rs.  

4375/-per month for 600 months.  We are of the opinion that  

the amount as claimed is excessive.  We, thus grant Rs.4,000/-  

per month to the appellant  for a period of 30 years making a  

total  sum  of  Rs.14,40,000/-.   The  complainant  has  further  

sought a sum of Rs.46 Lakhs towards physiotherapy etc. at the  

rate  of  Rs.4,000/-  per  month.    We  reduce  the  claim  from  

Rs.4,000/- to Rs.3,000/- per month and award this amount for  

a period of 30 years making a total sum of Rs.10,80,000/-  At  

this  stage,  it  may  be  pointed  out  that  some  of  the  medical  

expenses  that  had  been  incurred  by  the  complainant  have  

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already  been  defrayed  by  the  employer  of  the  complainant’s  

father  and  we  are,  therefore,  disinclined  to  grant  any  

compensation  for  the  medical  expenses  already  incurred.  

However, keeping in view the need for continuous medical aid  

which would involve expensive  medicines and other material,  

and the loss towards future earnings etc., we direct a lump sum  

payment of Rs.25/-lakhs under each of these two heads making  

a  total  of  Rs.50  lakhs.   In  addition,  we  direct  a  payment  of  

Rs.10 lakh towards the pain and suffering that the appellant  

has undergone.  The total amount thus computed would work  

out to Rs.1,00,05,000 (Rs.1 crore 5 thousand) which is rounded  

off to Rs. One Crore plus interest at 6% from Ist March, 1999 to  

the date  of  payment,  giving due credit  for  any compensation  

which might have already been paid.

38. The complainant has also claimed a sum of Rs.2 crore to  

be  put  in  deposit  to  be  utilized  by  him  in  case  some  

developments in the medical field make it possible for him to  

undergo further treatment so as to improve his quality of life.  

This claim is unjustified and hypothetical and is declined.

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39. We must emphasize that the Court has to strike a balance  

between the inflated and unreasonable demands of a victim and  

the equally untenable claim of the opposite party saying that  

nothing  is  payable.  Sympathy  for  the  victim  does  not,  and  

should not, come in the way of making a correct assessment,  

but  if  a  case  is  made  out,  the  Court  must  not  be  chary  of  

awarding  adequate  compensation.  The  “adequate  

compensation” that we speak of, must to some extent, be a rule  

of the thumb measure, and as a balance has to be struck, it  

would be difficult to satisfy all the parties concerned.  It must  

also be borne in mind that life has its pitfalls and is not smooth  

sailing all along the way (as a claimant would have us  believe)  

as the hiccups that invariably come about cannot be visualized.  

Life  it  is  said  is  akin  to  a  ride  on  a  roller  coaster  where  a  

meteoric  rise  is  often followed by an equally spectacular  fall,  

and the distance between the two (as in this  very case)  is  a  

minute or a yard. At the same time we often find that a person  

injured in an accident leaves his family in greater distress, vis-

à-vis   a family in a case of death.  In the latter case, the initial  

shock gives way to a feeling of resignation and acceptance, and  

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in time, compels the family to move on.  The case of an injured  

and disabled person is, however, more pitiable and the feeling of  

hurt, helplessness, despair and often destitution enures every  

day.   The support  that  is  needed by a severely handicapped  

person  comes  at  an  enormous  price,  physical,  financial  and  

emotional, not only on the victim but even more so on his family  

and attendants and the stress saps their energy and destroys  

their  equanimity.   We  can  also  visualize  the  anxiety  of  the  

complainant and his parents for the future after the latter, as  

must  all  of  us,  inevitably  fade  away.   We,  have,  therefore  

computed the compensation keeping in mind that his brilliant  

career has been cut short and there is, as of now, no possibility  

of improvement in his condition, the compensation will ensure a  

steady and reasonable  income to him for  a time when he is  

unable to earn for himself.   

40. Mr. Tandale, the learned counsel for the respondent has,  

further,  submitted  that  the  proper  method  for  determining  

compensation  would  be  the  multiplier  method.  We  find  

absolutely no merit in this plea.  The kind of damage that the  

complainant has suffered, the expenditure that he has incurred  

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and is likely to incur in the future and the possibility that his  

rise in his chosen field would now be restricted,  are matters  

which cannot be taken care of under the multiplier method.

41. Civil appeal No.3126 of 2000 is allowed in the above term  

with  costs  of  Rs.50,000/-.   It  is  also  clarified  that  the  

complainant parents would be entitled to the sum awarded to  

them by the Commission. CA No.4119 of 1999 is dismissed.   

42. Before  we  end,  a  word  of  appreciation  for  the  

complainant  who,  assisted  by  his  father,  had  argued  his  

matter.  We must record that though a sense of deep injury  

was discernible throughout his protracted submissions made  

while  confined to a wheel-chair,  he  remained unruffled and  

with  behaved  quiet  dignity,  pleaded  his  case  bereft  of  any  

rancour  or  invective  for  those  who,  in  his  perception,  had  

harmed him.  

43. As  the  complainant  is  severely  handicapped  and  has  

appeared in person, we direct that a copy of this judgment be  

sent to his address, free of cost, under registered cover.   

……………………………..J.

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(B.N. AGRAWAL)

…………………………….J.   (HARJIT SINGH BEDI)

…………………………….J. New Delhi,  (G.S. SINGHVI) Dated: 14th May, 2009

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