NILESH S JOSHI Vs. C P LULLA

JUDGEMENT

(1.) Dr. Lulla, O.P. No. 1, in his lengthy written-statement, has made all attempts to justify his approach to bronchography on Nilesh. He has fairly conceded that bouts of convulsion was never expected nor medically envisaged in the treatment which he gave to Nilesh. Post Cardiac Vascular Arrest crops up suddenly and that he is unable to explain as to what could be the cause of the cardiovascular arrest. He has contended that he followed the standard and safe method of insertion of catheter after administering the necessary medicines, and rubber catheter was introduced after lubrication in the nasal cavity. According to him, he had explained the procedure and risk involved in the operation, to Sadanand Joshi and Nilesh Joshi. Dr. Natu had referred the patient for the procedure of Bronchography, to Dr. Shah and preliminary tests were to be carried out in accordance with the settled medical practice. Dr. Lulla performed the best intubation method application in cases of co-operative adult patient. Intubation means the insertion of catheter towards the larynx without the general anaesthesia. He had adopted the observations of "Principles of Chest X-Ray Diagnosis" written in the book by Dr. George Simon in Chapter II "Technique of Bronchography". He has stated that the Radiologist has to perform bronchography if referred to by the physician. The best method in a co-operative adult patient is that the mucosa of the upper respiratory passages in anaesthetized by spraying on a local anaesthetic such as Xyloclaim 4%, 2mls. for upper nasal and 2 mls. to be spread in the opening of larynx. Two minutes thereafter the catheter is passed through the larynx in to trachea. This can be carried out even on the patient is sitting or standing. He has stated that in this case, he has used a polythene catheter of 5 ml. size. The same was passed through the nose. He has denied that there was bleeding from nasal cavities and that he persisted the insertion of catheter. He has also denied that Mr. and Mrs. Shah joined him in inserting the catheter by using additional force. Had Nilesh been non-co-operative, he would have resisted by closing the mouth to prevent insertion of catheter. On the other hand, the catheterisation was comfortable because after 10 minutes of catheterisation, Nilesh was taken to x-ray table. He could talk and was normal. However, when Nilesh was taken to x-ray table, within a short time thereafter, he got bouts of convulsion for no apparent cause. However, surgeon and anaesthetist were called as they were present in the dispensary. Complete care was taken and full medical attention was paid. There was necessary cardiopulmonary resuscitation facilities including oxygen, ambubag, defibrilater etc. in the Hospital and it would be false to suggest that no oxygen was there. Nilesh and his father was given clear understanding about the nature of bronchography and the risk involved therein. This happened before the insertion of catheter for the purpose of bronchography. He has denied that radiologist is unaware of the procedure involved in the administration of anaesthesia. On the other hand, every radiologist is trained to carry out local anaesthesia. In case of bronchography, no general anaesthesia in necessary more particularly when the patient is co-operative. Intubation in this case was not by endotracheal tube but by thin catheter which when inserted through the mouth help the passage in case of co-operative adult. Dr. Lulla has, therefore, contended that he was not at all negligent and that the procedure described by the complainants in carrying out the Bronchography is not at all relevant. Intravenous Diazepam is not done in India because the same is not available. Surgeon must also know about this. Administration of local anaesthesia is a must prior to the procedure carried out for the above purpose. The other medicine viz. Xylocain Gel is in use in this country. He has thus denied that he was negligent in performing the bronchography. He has further contended that he is in employment of O.P. No. 2 & 3 and that there is no privity of contract between the complainant and the O.P. No. 1. He has obtained M.D. in Radiology and working as Radiologist in many Hospitals. The catheters used were sterilised and were not repeated at every insertion. The case of cardiac arrest is unknown in such bronchography and that its occurrence has nothing to do with the bronchography carried out in manner, by Dr. Lulla. He has contended that the claim is beyond limitation.

(2.) The O.P. No. 2 & 3 have contended that the O.P. No. 1 is attached to their Hospital as Consultant and that it is he who carried out the bronchography and that they furnished all necessary equipment for the purpose. They have denied that they assisted Dr. Lulla in inserting the catheter in Nileshs mouth inspite of resistance by Nilesh. Nilesh Joshi was further informed about the risk and his informed consent was obtained. O.P. No. 2 & 3, therefore, extricate themselves from the incident by contending that Dr. Lulla was the Consultant who carried out the bronchography on Nilesh on his own and that he was paid his dues, in the shape of fees. O.P. No. 2 & 3 maintained accounts and have described Dr. Lulla as the Consultant entitled to varying amounts.

(3.) Now, the undisputed facts are that on 14-3-91, Nilesh underwent bronchography at the hospital of O.P. No. 2 & 3 at the hands of Dr. Lulla, the O.P. No. 1. He suffered anoxic brain damage. He was in the Sion Hospital from 14-3-91 to 27-3-91 and thereafter from 27-3-91, he was at the Hinduja Hospital right upto 6-5-91. His present condition is described by the both hospitals. According to Bombay Hospital (Outdoor Case Paper) dt. 29-7-92, Nilesh is a case of Anoxic Brain Damage (Post Cardio Respiratory Arrest) following the radiographic procedures of bronchography. He is unable to talk, unable to express himself, unable to urinate and these are all suggestive of anoxic brain damage. He does not follow commands, makes sounds on his own, laughs on his own. He is spastic having suffered the anoxic brain damage.