State Consumer Disputes Redressal Commission
Niac Ltd. vs Sachin Kanda on 13 July, 2015
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1436 of 2011
Date of Institution:22.09.2011
Date of Decision : 13.07.2015
New India Assurance Company Ltd., G.T Road, Gulabi Bagh, Moga
through its Regional Office, New India Assurance Company Ltd.,
SCO 36-37, Sector 17-A, Chandigarh through its Manager.
.....Appellant/Opposite party no.3
Versus
1. Sachin Kanda son of Sh. Pardeep Kumar son of Sh. Amar
Nath, resident of H.No.537, Gali No.7, Ahata Badan
Singh, Moga
..Respondent/Complainant
2. Singla Nursing Home, Shivala Soodan, Main Bazar, Moga,
through its Owner/Prprietor.
3. Dr. Ashok Singla, M.S. Operating Surgeon, C/O Singla Nursing
Home, Shivala Soodan, Main Bazar, Moga.
... Respondents/Opposite Parties No.1 and 2
First Appeal against order dated
04.07.2011 passed by the District
Consumer Disputes Redressal Forum,
Moga
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Shri. Harcharan Singh Guram, Member Present:-
First Appeal No.1436 of 2011 2
For the appellant : Sh.Puneet Sharma, Advocate
For the respondent no.1 : Sh.A.K.Goeal, Advocate
For the respondent no.2 & 3 : None.
............................................ J.S KLAR, PRESIDING JUDICIAL MEMBER :-
The appellant of this appeal (the opposite party no.3 in the complaint) has directed this appeal against the respondent no.1 (the complainant in the complaint) and respondents no.2 and 3 of this appeal (opposite party no.1 and 2 in the complaint), challenging order dated 04.07.2011 of District Consumer Disputes Redressal Forum Moga, accepting the complaint of the complainant by directing the OPs to pay the compensation amount of Rs 3 lac to the complainant along with interest @ 9% p.a from 22.02.2010, besides Rs.30,000/- as costs of litigation. The instant appeal has been preferred against the same by OP No.3 now appellant in this appeal.
2. The complainant Sachin Kanda has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that he developed severe pain in abdomen in September 2008 and he consulted a local physician Dr. Vikram Chatley. Again, in the month of October 2008, acute severe pain developed in his abdomen and the above-said physician advised him to undergo for abdomen ultra sound test. The complainant got his ultrasound done from Mittal Lab & C.T Scan Pvt. Limited on 21.10.2008. He was found suffering from Cholelithiasis and he contacted OP No.2, who ran his hospital under the name of OP First Appeal No.1436 of 2011 3 No.1. After examining his ultrasound test report dated 21.10.2008, OP No.2 advised him to undergo operation for removal of stones in the gall bladder by way of Lap Chole. The complainant was admitted in the hospital of OP No.2 on 09.05.2009 under the care of OP No.2. The complainant was explained that operation would be conducted Laproscopically and operation was performed at about 8 pm on 9.05.2009 and thereafter the complainant was shifted to ICU of OP No.1 therefor. He was shifted to private room on the next day. The OP No.2 operated the complainant with open surgery and father of the complainant tried to contact OP No.2 to know the reason for open surgery from laproscopy surgery for the above operation. However, OP No.2 snubbed him instead of telling the reason of pain in the abdomen of the complainant and he was given only pain killing injections by OP No.2. ON third/fourth post operative day, the complainant suffered from jaundice, which was noticed by the father of the complainant and OP No.2 was informed about it with regard to yellowness in the eyes of the complainant and OP No.2 told in a nonchalant manner that such mild jaundice was the after effect of the surgery and medication and would be automatically cured within two/three days. The yellowness in eyes of the complainant and in his skin was increasing day by day and he contacted OP No.2 along with his relatives and asked him, if there was something wrong with the operation, then should be informed for availing the measures from some other super specialty hospital. OP No.2 assured the complainant and his father, in the presence of his relative, that First Appeal No.1436 of 2011 4 operation has been successfully conducted and there was nothing to worry. OP No.2 got written from the father of the complainant to discharge the complainant from the hospital proprio motu. OP No.2 did not discharge the complainant on that day and rather kept the complainant for 2-3 days more in the hospital on the assurance of complete recovery of the complainant. The complainant was ultimately discharged by OP No. 2 on 19.05.2009 by prescribing medicines for five days by declaring that the complainant had fully recovered. The complainant felt severe pain in the abdomen on the next day from 19.5.09 and was brought to OP No.2 on 21.5.09 and informed about it. OP No.2 changed the medicines and OP No.2 assured that complainant would be all right. The complainant took medication for three days, but on the night of 25.5.09, he again felt severe pain in his abdomen and colour of his skin and eyes totally changed to yellow and the complainant started vomiting. On 26.5.09, the complainant was brought to OP No.2 and told about the problem of the complainant. OP No.2 changed the medicines with new one and assured his father that there was nothing wrong to him. Yellowness in the eyes and skin was told to be the cause of medicines by OP No.2. On 27.5.09, the complainant again developed severe pain in his abdomen and was taken to OP No.2 in the morning on 28.5.09. The father of the complainant told OP No.2 in clear words that he had the feeling that something important was being concealed from them by OP No.2. OP No.2 again advised to discontinue the earlier prescribed medicines and rather prescribed First Appeal No.1436 of 2011 5 new medicines with the direction to take the same for the next five days. OP No.2 also conducted the test of the complainant in his own diagnostic centre and declared him to be all right. Dissatisfied with the hollow assurance of the OP No.2, the father of the complainant asked him to take the complainant to some other Super Specality Hospital. On 29.5.09, the father of the complainant took him to DMCH Ludhiana and got him examined from the doctors thereat. The complainant was admitted on the same day in DMCH Ludhiana by the doctor, vide admission no.18321 & CR No.58454. On 30.05.09 and 1.06.2009, tests were conducted upon the complainant and he was diagnosed as suffering from Obstructive Biliopathy with Hypoechoc Area at Porta, Local Collection, G.B Remnant. The Bilirubin level of complainant was measured at 1.240 mg/dl. CECT abdomen showed Gal Bladder Remnant were compressing upon CBD. On 02.06.2009, ERCP was done upon complainant and it was found that CBD was completely cut off at Mid CBD Level. On the same day, Sphincterotomy was done, but wire could not be placed across the stricture. The doctors disclosed to the complainant and his father that another surgery would be performed upon the complainant to correct the wrong done at the hospital of OP No.1. Another surgery at DMCH Ludhiana could not be carried out due to problems faced by the complainant, which could be proved to be life threatening problem. On 4.06.09, the complainant was taken to surgery at DMCH , seeing his critical condition, the operating doctors were unable to do any corrective surgery upon the complainant and First Appeal No.1436 of 2011 6 they simply drained the local collection and put a drain tube in situ. The complainant was discharged on 8.6.09 with follow up instructions from the DMCH Hospital. The complainant followed up with DMCH Ludhiana and private practitioner and took the medicines prescribed up to December 2009. The complainant suffered three/four episodes of Cholangitis with fever and jaundice. During the above period, he continued take medicines from Dr. Kuldeep Singh. The complainant developed high-grade fever with jaundice in December 2009. On the recommendation of Dr. Kuldeep Singh, MRCP was done on the complainant on 01.01.2010 and he was referred to PGI Chandigarh for further corrective surgery. On 07.01.2010, the complainant approached PGI Chandigarh as an out door patient and he was admitted threat for further management. On 25.01.2010, the complainant was admitted in Surgical Ward of PGI, Chandigarh. On 16.2.2010, the complainant was operated upon for further corrective surgery by the doctors of PGI Chandigarh and he was discharged on 22.02.2010 after performance of the surgery with instructions and advice to follow up. The doctors of the PGI Chandigarh told the complainant that during the operation performed by the OP No.2, some wrong nerve had been clipped/damaged there and OP No.2 did not take any remedial measures and was rather careless in treating the complainant and thereby his problem aggravated to such an extent that subsequent surgery has to be resorted to. The complainant started feeling better at PGI Chandigarh with corrective surgery. The complainant has alleged First Appeal No.1436 of 2011 7 that wrong surgery was done by OP No.2 negligently on the complainant. The OP No.2 is alleged to be guilty of the negligence in performing the operation upon the complainant on 9.5.09 OP No.2 negligently clipped/blocked a wrong nerve of complainant at the time of conducting the operation. OP no.2 also failed to remove the complete Gall Bladder, for the removal of which, the complainant was operated upon. OP No.2 negligently converted the operation from Laproscopy to open surgery, without any consent of the complainant. OP No.2 was not supposed to go ahead with the planned surgery without first bringing the bilirubin level of complainant to normal limit and his operation was conducted when his bilirubin level was 8.5 mg %. The OPs had manipulated the report dated 28.5.09 of the laboratory being run by them under the supervision of OP No.2 and discharge card regarding the state of health of complainant. OP No.2 misled the complainant about the cause of jaundice and deteriorating condition of the complainant knowing well, it was result of CBD stricture only, caused due to performance of wrong operation on complainant. OP No.2 never advised the complainant for super specialty hospital particularly due to increasing bilirubin level of the complainant. The complainant has, thus, filed the complaint against OPs alleging medical negligence of OP No.2, who ran the hospital under the name of OP No.1 and claiming compensation from OPs.
3. Upon notice, OP No.1 and 2 appeared and filed written reply raising preliminary objections that complaint is false and frivolous. First Appeal No.1436 of 2011 8 OP No.2 is insured with New India Assurance Company, G.T Road, Gulabi Bagh Moga, vide policy no.361100/36/09/3400000002 with effect from 7.4.09 to 16.4.09, as such, insurance company is a necessary party. The complainant visited the OPs with the report dated 21.10.08 of Mittal Lab and CT Scan for consultation. The operation of the complainant was conducted on 9.5.09 by OP No.2. OP No.2 suggested the complainant for operation with Lapchole. It was admitted by OPs that complainant was shifted to ICU in a routine manner. Recovery of the complainant was normal and as per the satisfaction of OP No.2. He was shifted from ICU to private room. It was submitted that while performing the operation of the complainant, Laproscopically, there was profuse bleeding from cystic artery and as such compelled by the circumstances, Lapchole type of surgery had to be converted into open surgery by OP No.2. When OP No.2 came out of the operation theater, he told the father of the complainant regarding the open surgery and also about the success of the surgery and complainant side was satisfied with it. OPs denied the allegation of medical negligence against them vehemently. It was further pleaded that pain killing injections were the requirement of the complainant, as he complained of pain. It was admitted by OPs that on 16.5.09 after seven days of operation, the father of the complainant brought the complainant and OP No.2 informed that he suspected jaundice and hence advised not to take the complainant at home. It was denied that OPs willingly detained the complainant at his hospital for his financial benefits. The complainant was First Appeal No.1436 of 2011 9 discharged on 16.5.09, after 15-20 minutes. Father of the complainant came to OP No.2 and expressed his readiness to keep the complainant further for few days more. The complainant suffered from jaundice and treatment was started therefor. It was admitted that on 16.5.09, serum bilirubin test was done in the diagnostic laboratory of OP No.2 and it was found that complainant was suffering from jaundice and treatment was initiated there. OPs stated that allegations leveled against them of medical negligence are false and frivolous. It was denied that complainant ever took the prescribed medicines. It was further averred that complainant has not followed the postoperative treatment properly. On 26.5.09, the attendant of the complainant showed the report dated 23.5.09 to OP No.1 where bilirubin level was 5.06 mg. OP No.2 told the father of the complainant to visit OP No.2 on 28.5.09 and laboratory test and ultrasonography was performed on the complainant and it was found that bilirubin level was 7.2 mg , which was more than the earlier report dated 23.5.09. OP No.2 told the complainant and his attendants for further investigation, as mentioned in the ultrasound report dated 28.5.09. It was denied that OP No.2 ever told the complainant that yellowness in the eyes of the complainant and in his skin was due to medicines or due to food. It was further pleaded that as per record produced by the complainant , he might have contacted it at DMCH Ludhiana on 29.5.09 and tests might be conducted at DMC Ludhiana. It was further pleaded that complainant has tried to hide some mistake or negligence on the part of DMCH First Appeal No.1436 of 2011 10 Hospital and wrongly attributing the same to OP No.2. It was further averred that act and conduct of DMCH Ludhiana and complainant is highly suspect. It was further averred that conversion of the operation from laproscopy to open surgery was need of the hour at that time. It was denied that operation was conducted by OP No.2 when bilirubin level was 8.5 mg and as mentioned in the report dated 16.5.09. OP no.1 and 2 denied any medical negligence as leveled against them and prayed for dismissal of the present complaint.
4. OP No.3 /New India Assurance Company filed its separate written reply after its impleadment and it raised preliminary objections that complaint is not maintainable. The complex question of facts and law are involved in this case, which cannot be determined in summary proceeding by Consumer Fora. As per record maintained by OP no.3, OP No.2/Dr. Ashok Singla c/o M/s Singla Nursing Home Shivala Sadan has been insured with OP No.3, vide professional indemnity policy no.
361100/36/09/34/00000002 for the period from 17.4.09 to 16.4.2010. OP No.3 denied the allegations of the complainant for want of knowledge and prayed for dismissal of the present complaint against it.
5. The complainant tendered in evidence the affidavit of Parveen Kumar Ex.CW-1/A, affidavit of Inderjit Sharma Ex.CW-2/A, affidavit of Hardeep Singh Ex.CW-3/, affidavit of Sachin Kanda complainant Ex.CW-4/A along with copies of documents Ex.C-1 to Ex.C-103 and Ex.C-105. Affidavit of Dr. Kuldeep Singh, Surgeon Ex.C-104. As First Appeal No.1436 of 2011 11 against it, OPs tendered in evidence copies of documents Ex.R-1/1 to Ex.R-3/3, affidavit of Anil Chawla, Deputy Manager, New India Assurance Company Ex.R-1 along with copies of documents Ex.R-2 to Ex.R-12, Affidavit of Dr.Ashok Singla of Singla Nursing Home Ex.R-13 and Ex.R-15, affidavit of Dr. Subhash Mittal, Sonologist Ex.R-14. On conclusion of evidence and arguments, the District Forum, Moga, accepting the complaint of the complainant by directing the OPs to pay the compensation amount of Rs 3 lac to the complainant along with interest @ 9% p.a from 22.02.2010, besides Rs.30,000/- as costs of litigation. Dissatisfied with the order of the District Forum Moga dated 04.07.2011, OP No.3 now appellant has preferred this appeal against the same.
6. We have heard learned counsel for the parties at considerable length and have also examined the record of the case.
7. We have examined the affidavit of Pardeep Kumar Ex.CW-1/A, affidavit of Inderjit Sharma Ex.CW-2/A , affidavit of Hardeep Singh Ex.CW-3/A, affidavit of Sahcin Kanda complainant Ex.CW-4/A on the record. We have also examined the documents on the record with able assistance of counsel for the parties. Ex.C-1 is report of the ultrasound by Mittal Lab MRI & CT Scan Center Moga dated 21.10.2008. It has been proved that multiple calculi are seen in GB lumen. CBD & IHBR are normal in calibre. It has clearly proved it on the record that on 21.10.2008, CBD and IHRB of the complainant were normal in calibre. Ex.C-2 is record maintained by OP No.1 with regard to complainant Sahin Kanda , date of admission 07.05.09 and First Appeal No.1436 of 2011 12 date of discharge is 19.05.2009 and diagnosis Cholelithaisis Lap Chole. Investigation carried out are also part of his S. Billirubin was 8.5 mg% of the complainant. It records that Lap Chole had to be converted because of purpose bleeding from cystic artery. This is treating record of the treatment of the complainant maintained by OP No.1, Ex.C-3 is laboratory report dated 23.5.2009 and S. Bilirubin of the complainant is recorded as 5.06 mg%, whereas the normal value is (0.2--1.2), another laboratory report dated 28.05.09 is Ex.C-4 recording S.Bilirubin level of complainant is 6.94 mg% against normal value of (0.2--1.2), record of the OP No.1 hospital dated 28.5.09 of complainant is on the record is Ex.C-5, the S. Bilirubin level of the complainant is 7.2 mg%. The another report is Ex.C-6 of Shivala Ultrasound Diagnostic Centre is on the record dated 28.5.09 the CBD is of normal calibre of complainant, Ex.C-7 record of S. Bilirubin T 4.63 mg% on 11.06.09. Similarly, we have examined the report Ex.C-8 on the record where S. Bilirubin level of the complainant was 1.98 mg%, Ex.C-9 is record of DMCH Ludhiana dated 30.5.09, Ex.C-10 is Radiodiagnosis Report of DMCH Ludhiana dated 30.5.09. It is recorded that gall bladder : is not visualized C/w H/o Cholecystectomy, impression is recorded as Fatty Liver, obstructive biliopathy with focal hypoechoic area at porta, Focal Collection/G.B Remnant. The ultrasound report of the DMCH Ludhiana dated 30.5.09 has proved that gall balder is not visualized and fatty liver. Obstructive Biliopathy with Focal Hypoechoic area at Porta and focal collection/GB Remnant were recorded. Bilirubin total First Appeal No.1436 of 2011 13 12.40 mg. Ex.C-12 is CT Scan Report of DMCH Ludhiana of complainant dated 1.06.2009, it is recorded that gall bladder is not visualized c/w H/o Cholecystectomy. Impression recorded as Obstructive biliopathy with hypodense lesion at porta causing compressions. Ex.C-13 is record under consultation of Dr. R.S Chinna of the complainant. It is recorded that Sphincterotomy was done. Wire could not be placed across the stricture. The case summary of complainant at DMCH Ludhiana is Ex.C-14. It is recorded by Consultation Surgeon, Department of Surgery as under : Patient Sachin Kanda, 26 years old male was admitted on 29.5.09, vide CR No.58454, Adm No.18321 in Gastroentrology as postoperative case of open cholecystectomy presented with jaundice. Ultrasound abdomen was done on 30.5.09 which showed fatty liver obstructed biliopathy with focal hypoechoic area at porta? Local collection? Gall bladder remnant. CECT abdomen showed gall bladder remnant compressing upon CBD ERCP was done which showed complete cut off. Stenting was not possible. Surgery consultation was taken. Patient was taken up for surgery on 4.5.09 with pre-operative diagnosis of CBD obstruction? Mass in Gall Bladder fossa? Collection. The plan was to drain any collection/CBD drainage.
Operative findings : Dense adhesions present in gall bladder fossa with omentum and gut. Local collection was drained and tube drain was left in place. CBD could not be visualized due to dense adhesions. Patient was discharged on 8.6.09.
First Appeal No.1436 of 2011 14Discharge summary of complainant by DMCH Ludhiana Ex.C-15 and ultransound report Ex.C-16 of the complainant. Similarly, we have also examined the documents Ex.C-17 to Ex.C-22 on the record, which are laboratory reports of complainant. Ex.C-23 is medical certificate of complainant issued by DMCH Ludhiana with regard to the fact that the case of the complainant was post operative Cholecystectomy, Ex.C-25 is report of MRI MRCP by Delta Heart Centre Pvt Ltd Ludhiana to the effect that study shows that focal severe narrowing/absence of the proximal extra hepatic bile duct (CHD/CBD) for a distance of approximately 2.2. cm and approximately 1.6 cm below the level of confluence of the hepatic ductus. There is secondary intra hepatic bile duct dilatation. The gall bladder is not visualized consistent with (h/o cholecystectomy). The CBD distal to the observation and the MPD show normal course and calibre. Mild perilesional edema is seen around them. Ex.C-26 is report of PGI Chandigarh dated 07.01.2010 with regard to the case of the complainant's treatment, which was given at PGI Chandigarh and ERCP was done on 2.6.09. It was case of CBD stricture, Ex.C- 27 is discharge and follow up card of the complainant by PGI Chandigarh. Diagnosis post CBD injury CBD stricture Type II with recurrent cholarigitis. Similarly, we have examined the report of Delta Heart Centre dated 1.01.2010 Ex.C-30 on the record, Ex.C-31 to Ex.C-103 and the various receipts regarding purchase of medicines and tests of DMCH Ludhiana and private chemists shops. First Appeal No.1436 of 2011 15
8. The affidavit of Dr. Kuldeep Singh, Surgeon Ex.C-104 is on the record. He has stated that he is Professor of department of Surgery, DMCH Ludhiana. He stated on oath in his affidavit that as per record ultrasound abdomen was done on 30.5.09, which showed fatty liver obstructive with focal hypoechoic area at porta, local collection, Gall Bladder remnant, CECT abdomen showed Gall Bladder remnant compressing upon CBD, ERCP was done, which showed complete cut off at level of mild CBD. Stenting was not possible. Thereafter, surgery consultation was taken for surgery with preoperative diagnosis of CBD obstruction, mass in Gall Bladder fossa, collection. This witness planned to drain any collection/CBD drainage. On opening the abdomen, dense adhesion was present in gall bladder fossa with omentum and cut, adherent in that area. An attempt was made to define and to reach the CBD, which could not be possible because of unclear anatomy due to dense adhesion. Local collection of bile was drained and cavity/area was washed and drain was left in place. Further procedure was not possible and was dangerous. He has stated that previous record of Laproscopic surgery was converted to open surgery on the ground that there was a cystic artery bleed. He stated that the patient suffered injuries due to common bile duct while controlling the artery bleed. The stricture of the CBD developed because of the injury to it caused during Cholecystectomy by putting a clamp or clip or suture material upon it. He further stated that it could have been well diagnosed that bile through CBD is not flowing and is a case of obstructed bilipathy, First Appeal No.1436 of 2011 16 which needed corrective surgery and could have been done at the time of Cholecystectomy. He further stated that corrective measures should have been taken to deal with either of the two problems and which could have avoided the formation of CBD stricture. He further stated that failure in this regard had led to an extra major surgery i.e. Hepaticojejonustomy surgery and the patient had to undergo the major surgical-trauma and corrective measures should have been taken by the surgeon at the first instance.
9. The OPs placed reliance upon the consent form Ex.R-1/1 for this type of operation, Ex.R-2/2 is indoor ticket of the complainant, Ex.R-3/3 is certificate of Dr. Ashok Singal conferred by Association of Surgeons of India. Ex.R-1 is affidavit of Anil Chawla, Deputy Manager of Newe India Assurance Company , Ex.R-4 and Ex.R-5 are certificates conferred to Dr. Ashok Kumar Singal, Ex.R-6 is diagnostic laboratory test report of complainant, affidavit of Ashok Singla Ex.R-13.
10. From critical analysis of the above-referred evidence on the record and hearing the respective submissions of counsel for the parties, we proceed to determine the controversy in this case. The submission of counsel for the appellant is that problem developed in the surgery is non-complication and hence there is no medical negligence on the part of the operative surgeon/OP No.2 in this case. Reliance was made to law laid down by Apex Court in case titled as Martin F. D' Souza .. Vs. Mohd. Ishfaq, reported in CTJ 352 (SC) (CP) (2009) 3 SCC I. that basic principle relating to First Appeal No.1436 of 2011 17 medical negligence is known as BOLAM Rule. It was submitted that the test is the standard of the ordinary skilled man exercising and professing to have that special skill and a man need not possess the highest expert skill. It was further argued by counsel for the appellant that there should be deviation for normal practice to establish negligence. There is no negligence, when there is usual and normal practice and doctor has adopted it. There is no exception to the legal proposition held in the above authority by the Apex Court. From the factual back drop of the case, we have come to the conclusion that the complainant has proved the medical negligence of OPs on the below noted proven circumstances on the file.
11. The matter was referred to expert body at PGI Chandigarh by District Forum on receipt of the complaint for expert opinion. The report of the expert body by PGI Chandigarh has been received in this case, which is part of the record in this case and report of expert body of PGI concluded that the patient had a complication of cystic artery injury during cholecystectomy at Singla Nursing Home, Moga. Cystic artery injury and bile duct stricture are a known complications of cholecystectomy and can occur even in expert hands. The treating surgeon should have been more vigilant about consequences of surgery, especially because of excessive bleeding from cystic artery. The diagnosis of post-operative biliary stricture should have been suspected even in the hospital at the patient's bilirubin was high. The diagnosis of this complication can be made on a CT Scan, but is best confirmed on a MRCP. If the diagnosis of the complication had First Appeal No.1436 of 2011 18 been made, the patient could have been advised timely curative treatment. From the perusal of the report submitted by the expert body of the PGI Chandigarh , we have come to the conclusion that they have not totally exonerated operative surgeon and rather observed that operating surgeon should have been more vigilant about the consequences of the surgery, especially because of excessive bleeding from cystic artery. The diagnosis of post- operative biliary stricture should have been suspected, even in the hospital as the patient's bilirubin was high. The diagnosis of this complication can be made on a CT Scan, but is best confirmed on a MRCP. Similarly, affidavit of Dr. Kuldeep Singh, competent doctor is on the record, vide Ex.C-104. He has also stated on oath that stricture of the CBD developed because of the injury to it caused during Cholecystectomy by putting a clamp or clip or suture material upon it. He further stated that common bile duct might have been legated instead of cystic duct.
12. We find that this is the case of negligence on the part of OP No.2 as he should have not put a suture or ligature on the common bile duct instead of cystic duct. Bilirubin level of the complainant was high and he developed jaundice thereby. OP No.2 could have well diagnosed, while CBD was not flowing and was a case of obstructed biliopathy, which needed corrective surgery at that time due to post operative obstruction of CBD and collection of bile. We are in agreement with the view taken by the expert body of PGI Chandigarh and Dr. Kuldeep Singh competent surgeon that First Appeal No.1436 of 2011 19 corrective measures should have been taken by OP no.2 to deal with either of the two problems on the spot. No stenting was done at the time of surgery by OP No.2 to avoid the complications to the complainant to drain out bile collection therefrom. Had the treating surgeon/OP no.2 been more vigilant and should have resorted to corrective surgery forthwith, then CBD stricture complications could have been easily avoided. The counsel for the appellant argued that it is non-complication, but we find that OP No.2 has not resorted to any corrective methods to remedy the wrong done at the time of surgery forthwith so that further complications could have been avoided in this case. As per report of Mittal Lab Ex.C-1 CBD and IHBR are normal in calibre of the complainant before operation was conducted by OP No.2. After operation conducted by OP No.2, the complainant was a case of CBD stricture. Eventually major surgeries have to be resorted at the referral centers and complainant's complication could have avoided by resorting to remedial measures to correct wrong by OP No.2. OP No.2 had not taken any care to set the wrong, when repairing CBD injuries at that time, so that bile collection was drain out and complications to complainant could have been avoided.
13. The order of the District Forum holding OP No.2, who runs hospital under the name of hospital of OP No.1 negligent, calls for no interference in this appeal. Similarly, we also find that the quantum of compensation awarded by District Forum is on the higher side, which is now reduce to Rs. 2 lacs in this appeal. No ground is made out to First Appeal No.1436 of 2011 20 interfere with the order of the District Forum on the point of medical negligence of OP No.2 in this case. The appeal is partly accepted on the point of quantum of compensation, which is now Rs.2 lac instead of Rs.3 lac, which is awarded by District Forum. The payment of interest @ 9% p.a from the date of operation till its actual payment is maintained in the appeal along with the order of payment of cost of litigation of Rs.30,000/- . The order of the District Forum on the quantum of compensation stands modified to the extent as discussed above.
14. As a result of our above discussion, the appeal of the appellant is partly accepted qua the reduction of the amount of compensation to Rs.2 lac only and it is partly dismissed on the remaining.
15. The appellant/op No.3 had deposited the amount of Rs.25,000/- with this Commission at the time of filing of the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to the respondent/complainant by way of a crossed cheque/demand draft after the expiry of 45 days from receipt of copy of this order. Remaining amount be paid within 45 days time from the date of receipt of this order by the appellant to the respondent/complainant.
16. Arguments in this appeal were heard on 08.07.2015 and the order was reserved. Now the order be communicated to the parties.
17. Copies of the order be communicated to the parties as per rules.
First Appeal No.1436 of 2011 21
18. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR)
PRESIDING JUDICIAL MEMBER
(HARCHARAN SINGH GURAM)
MEMBER
July 13 2015.
(ravi)