A Mere Deviation From Normal Professional Practice Is Not Necessarily Evidence Of Negligence; Reiterates NCDRC

The bench observed that as per the medical literature the Functional Endoscopic Sinus Surgery (FESS) is an easy, fast and effective surgical procedure for treating rhinosinusitis that is not responsive to medical therapy. There are no major post-FESS complications. The suspected bony fragment was due to an error of judgment during FESS. Thus, negligence cannot be attributed to the FESS performed by OP-2 doctor.

In this case, the Complainant Mr. Davis V.C. ('Patient') underwent a Functional Endoscopic Sinus Surgery ('FESS') on his right sinus at Lissie Hospital, Emakulam. In the year 2000, he suffered sinusitis of left side and he underwent FESS at M/s. Lourdes Hospital, Ernakulum ('OP-1'). It was performed by an ENT surgeon Dr. P. Y. Johan ('OP-2'). Subsequently, he developed severe headache and fever. The patient developed symptoms of intracranial injury. The OP-2 told him that the head ache was due to the left side nasal packing. Then the nasal packing on the left side was removed, but headache did not stop. He had vomiting and the physician examined and then referred him to the Neuro Physician. CT Scan brain was done, which revealed regional odoema with partial effacement and elevation of left frontal horn and a small hyper-dense opacity in the inferior part of left frontal lobe about 1.2 cm above the ciiaphragma sellae. According to the complaint, in order to conceal the negligence, the OP-2 delayed to refer patient to a Neurosurgeon. It was also alleged that the medical records were manipulated. Being aggrieved due to alleged medical negligence the Complainant filed the Complaint before the State Commission and claimed a sum of Rs. 13,00,000/- as compensation. The State Commission partly allowed the Complaint and directed the Opposite Parties to pay a compensation of Rs.3,00,000/- to the Complainant.

Aggrieved by the decision of State Commission, the complainant filed an appeal before the National Commission under Section 21(a)(ii) of the Consumer Protection Act, for the enhancement of compensation and OPs filed an appeal for the dismissal of complaint.

Analysis by the National Consumer Disputes Redressal Commission (NCDRC):

The issue for consideration before the bench was whether the OPs are liable for the displaced bony fragment in the frontal region of the skull of the complainant.

The bench observed that, the FESS was done on maxillary and ethmoid sinuses, which is away from frontal sinus. Thus, possibility of injury to the frontal bone is very remote. The reports revealed the patient had mild infection at the displaced bone in the frontal sinus. The OP-2 treated the patient with higher antibiotics which showed improvements. Also, it should be borne in mind that if the complication arose from FESS, there will be CSF leak.

The bench noted that, The CT scan report before surgery also shows thickening of mucosa due to chronic process. Further, the patient was referred to Neurologist for further assessment. The allegation of loss of memory and headache due to FESS is not sustainable.

The bench further noted that, as per the medical literature the Functional Endoscopic Sinus Surgery (FESS) is an easy, fast and effective surgical procedure for treating rhinosinusitis that is not responsive to medical therapy. There are no major post-FESS complications. The suspected bony fragment was due to an error of judgment during FESS. The CT findings are also confirmatory because of chronic inflammatory charges and thickening of mucosa. There was significant improvement after taking antibiotics. Thus, negligence cannot be attributed to the FESS performed by OP-2 doctor.

The bench relied upon the recent judgment of Supreme Court in Chanda Rani Akhouri vs. M. S. Methusethupathi, decided on 20th April, 2022, wherein it was held that Simple lack of care, an error of judgement or an accident, is not a proof of negligence on the part of a medical professional. It further cited Jacob Mathew vs. State of Punjab and Anr., where the Court further explained the true import of the term negligence and observed that:

"A mere deviation from normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere accident is not evidence of negligence. So also, an error of judgment on the part of a professional is not negligence per se. Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure."

The bench after considering the above judgments allowed the appeal filed by the OPs and dismissed the appeal filed by the complainant.

The bench noted that the State Commission awarded Rs.3 lakh, if the Complainant had received any amount from the State Commission, the Opposite Parties now at this stage, shall not seek its refund from the Complainant.

Case Name: M/S. Lourdes Hospital & Anr. v. Davis V.C.

Case No.: FIRST APPEAL NO. 112 OF 2011

Corum: Hon'ble Dr. S.M. Kantikar, Presiding Member and Hon'ble Mr. Binoy Kumar, Member

Decided on: 26^th May, 2022

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