State Consumer Disputes Redressal Commission
R. Srinivasan vs The Managing Director, Dr. Kumaran'S ... on 15 April, 2026
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BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION AT PUDUCHERRY
Dated this the 15th day of April 2026
CONSUMER COMPLAINT No: 05/2020
R. Srinivasan, S/o.Rajendiran
No.5, Mariamman Koil Street,
Thirukanchi, Kilinjikuppam Post,
Villianur, Puducherry-605 010. .. Complainant
Vs
1. The Managing Director,
Dr.Kumaran's Multi Speciality Hospital,
No.3, 2nd Cross, Sithananda Nagar,
Ellaipillaichavady, Puducherry-605 005.
2. Dr.S.P.Ilango, M.B.B.S., D.N.B, FIMS, MRCS
Dr.Kumaran's Multi Speciality Hospital,
No.3, 2nd Cross, Sithananda Nagar,
Ellaipillaichavady, Puducherry-605 005. .. Opposite parties
BEFORE:
DR.S.SUNDARAVADIVELU,
PRESIDING MEMBER
TMT.S. OUMASANGUERY,
MEMBER
FOR THE COMPLAINANT :
Thiru.R.Soupramanien, Advocate.
For THE OPPOSITE PARTIES :
Thiru.L.Sathish, Advocate
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JUDGMENT
(By DR.S.SUNDARAVADIVELU, Presiding Member)
1. This is a complaint filed under Section 17 of the Consumer Protection Act 1986 (hereinafter called the CP Act in short) alleging negligence in performing gall bladder surgery, laparoscopic cholecystectomy (LC in short hereafter)by the Opposite Parties and seeks Rs 25,00,000 as compensation and costs of legal proceedings. The complaint may be stated in brief as follows:
2. The complainant aged about 30 years is working in a private health insurance company and married and has a girl child. On 22.07.2018 at about 10.00 pm, he had severe abdominal pain. He rushed to the nearby Primary Health Centre and had first aid. As the pain continued, the next day i.e. on 23.07.2018, he consulted the Opposite Party No.2, Dr.S.P.Ilango at the Opposite party 1 hospital. The complainant was given first aid and advised to take USG abdomen scan and kept under observation till 5.00 pm. Then he was discharged with advice to come on 01.08.2018 for laparoscopic surgery. On 01.08.2018,when he came for review, he was informed by the Opposite Party 2 that there was stone in the gall bladder which can be removed through laparoscopic surgery and the procedure would cost Rs.40,000 and the operation should be done emergently otherwise it would cause jaundice and severe life threat. The complainant got admitted as in-patient Abbreviations : LC: Laparoscopic Cholecystectomy, BDI: Bile Duct Injury, CBD:Common Bile Duct CHD: Common Hepatic duct, MRCP: Magnetic Resonance Cholangiopancreatography- Non-invasive MRI Scan, ERCP: Endoscopic Retrograde Cholangiopancreatography- Specialised minimally invasive procedure. USG: Ultra Sound Sonography. JIPMER: Jawaharlal Nehru Institute of Postgraduate Medical Education and Research, a Central Government Institution. 3 on 07.08.2018 in the Opposite Party 1 hospital as insisted by the Opposite Party 2. Before the operation there was no discussion by the Opposite Parties with the complainant or his family members in respect of the treatment and the procedure was not explained. The scan report was not shown to them. However the Opposite Parties obtained signatures in unfilled, printed forms from the complainant.
3. The operation commenced around 6.00 pm and the complainant was sent to ICU around 9.00pm. The Opposite Party 2 informed the complainant's wife that gall bladder was removed. Around 2.00 am on 08.08.2018, the complainant had continuous vomiting (green colour) and severe abdomen pain. He was shifted to a special ward around 9.00 am. When Opposite Party 2 came for visit, the complainant informed him about the continuous vomiting and severe pain. The doctor advised him to wait for 2,3 days, suspecting infection.
4. On 13.08.2018, he was advised to take Ultra Sound Abdomen scan at a private scan centre as the Opposite Party Hospital had no such facilities. On receiving the scan report on 14.08.2018, the Opposite Party 2 informed the complainant that he had 271 ml fluid collection at the Left Perihepatic region. Dr.Sivaraj , radiologist in the same hospital removed some fluid but he could not drain out the entire fluid. Again while being as in-patient, he was forced to take USG scan and MRCP scan at Sono Scan centre, a private scan centre by making his own arrangements. However as the MRCP scan was not clear, he had to take another MRCP scan at Mahatma Gandhi Hospital, Pondicherry again making his own arrangements. On receiving the MRCP report, Dr.Sivaraj informed that the collection of fluid was due to bile leakage and there was 4 severe injury in CBD (Common Bile Duct) region. The complainant developed infection resulting in continuous vomiting, acute pain and discomfort.
5. On 22.08.2018, the complainant was referred to Dr.G.Rajesh Kumar of Rani Hospital, Pondicherry for treatment. Stent was placed in the CBD region. However the stent failed. Then, the Opposite Party 2 advised to undergo by- pass surgery. In view of the severe trauma, pain and suffering being undergone by the complainant and his family, they demanded immediate discharge. However the Opposite Party 2 demanded Rs 55,000 as balance payment for discharge which was finally reduced to Rs 20,000. He went to Jipmer, Pondicherry on 22.08.2018 and met Dr.Kalaiyarasan of Surgical Gastroenterology department at OPD on 23.08.2018 who informed that he can not undergo surgery immediately and advised to have regular check ups for six weeks. The treatment records were obtained from the Opposite Party hospital for the first time and submitted to Jipmer. As per the advice of Dr.Kalaiyarasan he was admitted in Jipmer on 21.09.2018 and the treatment commenced on 25.09.2018. On evaluation multiple clips were noticed in the hilar region. Severe injury was noticed in the CHD region due to the negligent operation made by the Opposite Party. Deterioration of his health led to malfunctioning of both kidneys and the complainant was forced to have dialysis every alternate day. On 06.10.2018, he underwent second surgery and till 18.10.2018,his abdomen was kept open and he was in ICU and external bag was placed. The complainant incurred expenditure of Rs.1,05,000 for treatment at the Opposite Party Hospital without any recovery in his health.
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6. The Opposite party hospital does not have minimum facilities and equipment for conducting surgical procedures amounting to deficiency in service and negligent treatment. The complainant owned two wheeler spare parts business in two places. He was put to heavy business loss due to the faulty surgery by the Opposite Party. Due to the deployment of multiple clips in hilar region continuous vomiting and pain occured. He has been taking treatment till date incurring huge expenses. Lawyer notice was issued on 21.11.2018. seeking a compensation of Rs.20,00,000 for loss of health, mental and physical suffering undergone. Even though the notice was received on 27.11. 2018 no reply was received. Hence the complainant is before this Commission seeking compensation of Rs.25 lakhs.
7. Though the opposite party put appearance before this Commission on 14.07.2020 ,the reply version was filed only on 02.07.2022.Based on the orders of the Hon'ble National Commission in FA no 363 /2023 filed by the Opposite Parties ,the delay was condoned and the written reply filed by OP2 adopted by OP1 was taken on file. Reply version of the Opposite Parties :
8. The 2nd Opposite Party is a highly qualified specialist general surgeon (MBBS, DNB) with extensive experience in laparoscopic surgeries. The 1st Opposite Party is a 40-bedded multi-specialty hospital that provides affordable medical facilities and employs qualified medical professionals and paramedical staff. The Complainant chose this facility specifically due to his satisfaction with its infrastructure and the surgeon's expertise.
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9. The Complainant first approached the hospital on July 23, 2018, with chronic dyspeptic symptoms and abdominal pain. A USG abdomen revealed small renal calculi, gallstones, and a fatty liver. After initial conservative management with drugs, the patient returned on August 1, 2018, and was diagnosed with symptomatic cholelithiasis. The medical condition and the necessity of a laparoscopic cholecystectomy were thoroughly explained to the patient. The potential side effects and risks of the procedure, including the possibility of a common bile duct (CBD) injury, were clearly communicated. The Complainant and his family provided informed consent after fully understanding the diagnosis and prognosis.
10. The surgery was performed on August 7, 2018. During the procedure, the surgeon found the omentum and stomach curvature being stuck in the Callot's triangle. Consequently, the surgeon successfully shifted from the conventional approach to a "fundus to duct approach" to remove the gallbladder. The surgeon carefully checked for any bile duct injury during the procedure and found none. The procedure was uneventful, and the patient spent five days post-surgery with minimal difficulties and no signs of complications. Routine histopathology later confirmed chronic cholecystitis.
11. They were vigilant in monitoring the patient and responded immediately. On August 13, 2018 (six days post-surgery), when the patient reported pain and distension, the hospital immediately arranged for a USG at an outside center (due to a temporary technical snag with their own equipment).When the scan showed a 271 ml fluid collection, the 2nd Opposite Party aspirated 150 ml of fluid. Upon identifying a drain of 7 200 uml of bile fluid on August 16, the surgeon held detailed discussions with the family, explaining that a CBD injury--a well-documented complication of this surgery--was now suspected. The patient was initially managed conservatively, and an MRCP was performed at Sono scan centre to locate the leak. As the bile drain could not be arrested second MRCP was done at Mahatma Gandhi Medical College. The surgeon recommended an ERCP (Endoscopic Retrograde Cholangiopancreatography) to place a stent at the leak site. At the Complainant's request, this procedure was performed by Dr. Rajesh Kumar at Rani Hospital. However, the ERCP failed because a stent could not be inserted at the site of the leakage.
12. Following the failed ERCP, the 2nd Opposite Party advised that the only remaining recourse was an elective surgery called hepaticojejunostomy. The Complainant refused this necessary surgery and chose to be discharged "against medical advice" on August 22, 2018. The Opposite Parties state they had no further knowledge of his treatment until legal records were served.
13. The defense uses the records from JIPMER (where the patient was admitted a month later) to support their claim that the case was medically complex rather than a result of negligence.
14. The JIPMER records show that even at a premier institute, the first hepaticojejunostomy was unsuccessful and did not arrest the bile leak. JIPMER eventually had to perform an exploratory laparotomy and lavage to arrest the complications. The defense argues that if a major institution like JIPMER struggled with 8 the same complications, it proves that the 2nd Opposite Party was not negligent, but rather dealing with the "glorious uncertainties" of the human body.
15. They argue that medical professionals cannot guarantee success in invasive treatments. They argue that a CBD injury is a known and documented complication that can occur even with the best possible care by any surgeon. There was no wrong diagnosis, defective treatment, or failure to note complications. Negligence cannot be claimed simply because a complication occurred; "gross negligence" must be established, which the defense denies. The allegations of concealment of records or lack of infrastructure are "false and baseless," made with the intention of extorting money. The Opposite Parties conclude that they exercised full care and attention, and since the Complainant suffered no injury due to any lapse in their service, the complaint should be dismissed with costs
16. The complainant examined himself as CW1 and marked exhibits C1 to C26. Dr. Kalaiyarasan, Additional Professor Surgical Gastroenterology department, JIPMER, Puducherry was examined as CW2 and exhibit X 1 (series 5 numbers) were marked.Dr.Muthukumaran, Managing Director of Opposite party 1 hospital deposed as RW1 and no documents were marked. Dr.S.P.Ilango , Opposite party 2 was examined as RW2 and no documents were marked.
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17. Both sides orally argued and filed written arguments.
The arguments are summarised as follows :
18. Counsel for the Complainant argued that due to the negligence of the Opposite Party No.2 doctor, laparoscopic surgery to remove the gall bladder was done wrongly and multiple clips had to be applied to arrest the leakage of bile. He submitted the following citations to support his claim.
1.St Antony Hospital Vs. C.L.D' Silva decided by Hon'ble National Consumer Disputes Redressal Commission in F.A.No.39 of 2007 .
2.Global Hospital, Hyderabad Vs. P.Manjula and others in F.A.NO.1722 of 2016 , decided by Hon'ble NCDRC wherein the order of State Commission ,Telengana finding negligence in the conduct of surgery on the patient was upheld in the following terms.
―7....State Commission has also observed that in the instant case due precautions and responsibilities for pre-operative and post-operative were not taken.
8. State Commission has also observed that OPs failed to give any explanation as regards clotting of blood in the brain".
3. Ravi versus Dr Ram Singh Surgical Hospital in R.P.No.1125-1126 of 2021 decided by Hon'ble NCDRC . In this case Hon'ble NCDRC reversed the decision of SCDRC Rajasthan and awarded compensation restoring the decision of the District Commission for wrongly done gall bladder surgery. It was observed .....
―11. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt. Degrees of negligence in criminal negligence and negligence under civil law are jurisprudentially different. It is only to fasten liability in criminal law that degree of negligence has to be gross or of higher degree. Negligence, which is neither gross or of higher degree may provide a ground for action in civil law. In Savita Garg Vs. The Director, National Heart Institute (AIR 2004 SC 5088) Hon'ble Supreme Court observed that :-
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"10. The Consumer Forum is primarily meant to provide better protection in the interest of the consumers and not to short circuit the matter or to defeat the claim on technical grounds........ We cannot place such a heavy burden on the patient or the family members/relatives to implead all those doctors who have treated the patient or the nursing staff to be impleaded as party..........In fact, once a claim petition is filed and the claimant has successfully discharged the initial burden that the hospital was negligent, as a result of such negligence the patient died, then in that case the burden lies on the hospital and the concerned doctor who treated that patient that there was no negligence involved in the treatment. Since the burden is on the hospital and the concerned doctor who treated that patient that there no negligence involved in the treatment.............."
19. The Counsel for Opposite parties vehemently argued that BDI complications during LC are very well known and well recorded and the procedure adopted by him is correct and due care was given and there is no negligence. In support he submitted various medical literature.
1 Article ‗Common Bile duct injury in laparoscopic cholecystectomy -inherent risk of procedure or medical negligence -a case report' published in World Journal of Laparoscopic Surgery May -August 2008.
2. ―Surgeons opinion of legal practice in bile duct injury following cholecystectomy‖ written by Alex Gordon-Weeks et al published in HPB 2017,19,721-726.‖
3.Article ―Laporoscopic cholecystectomy :fundus first or fundus last-which and why?‖-Moatassim Barham. - World Journal of Laparoscopic, January-April 2011:4(1):25-29
4.Article ―Bile duct injury laporoscopic cholecystectomy without on- table cholangiography‖: Mohammed Zarin et al in ‗World Journal of Laparoscopic surgery‖
20. The counsel for the Opposite parties brought to our attention the following judgments of Hon'ble Supreme Court and Hon'ble National Commission: 11
1.Deep Nursing Home and anr vs Manmeet Singh Mattewal -Civil Appeal No.1662 of 2016 (CDJ 2025 SC 1401)
2.Neeraj Sud and anr vs Jaswinder Singh -Civil Appeal Nos.272, 5526 of 2016 (CDJ 2024 SC 93)
3.M.A Biviji vs Sunita &others -Civil Appeal Nos.3975, 4857 of 2018 (CDJ 2023
964)
4.Vinod Jain vs Santokba Durlabhji Memorial Hospital - Civil Appeal No.2024 of 2019 (CDJ 2019 SC 22)
5.Dr.S.K . Jhunjhunwala vs Dhanwanti Kumar & Anr. - Civil Appeal No.3971 of 2011 (CDJ 2018 SC 1032)
6.Dr.Jacob Mathew vs State of Punjab - Civil Appeal Nos.144-145 of 2004 (CDJ 2005 SC 570)
7.Kanhaiya Kumar Singh vs M/s Park Medicare - Original Petition No.206 of 1995 (CDJ (Cons) Case No.028 -NCDRC
8.State of Punjab vs Shiv Ram and others - Civil Appeal Nos.5128 of 2002 & RSA No.2741 of 2001 (CDJ 2005 SC 616)
21. In the written arguments, the counsel for Opposite parties has put forth the following main defences:
1. The contention of the complainant that consent for treatment was obtained in unfilled printed form without explaining the consequences is false as he is a well educated person (B.E graduate).One of the complications recorded in the consent form is CBD injury.
2. Opposite party 2 hospital is a secondary health care centre with adequate facilities to perform surgeries like Cholecystectomy and attend to certain known complications.
USG was done at another centre because USG became dysfunctional on that date. MRCP is done in MRI machine which is available only at tertiary hospitals and not mandatorily kept in secondary care hospitals. ERCP could have been done in Opposite party hospital but done outside on the request of the complainant.
3.CBD injuries are known complications in Laparoscopic Cholecystectomy and do not amount to negligence per se. This is as per 12 conjoint reading of evidence of CW2 ,medical literature,opinion of medical board in a similar case and NCDRC decision.
4. CW 2 is a witness of fact and not an expert witness and also treated the complainant at JIPMER.
5. CW2 has stated the CBD was mistakenly identified as cystic duct and cut the same .But this is not supported by any reliable materials and contrary to records.
6. The injury to bile duct might have been caused due to cauterization and not due to mistaken identification of CBD as cystic duct because all the USG, MRCP and ERCP done after LC would show CBD(Common Bile Duct) to be normal and the ERCP done on 22.08.18 shows the injury was at CHD (Common Hepatic Duct).
7.Electro Cauterization was the most probable cause. Clipping of CBD by mistake is ruled out as above. Electro cautery is used in LC. Chances of heat radiating to neighbouring tissues and causing injuries is well documented. Injury was recorded at CHD and the patient had uneventful 4-5 days without any leakage of bile fluid. Hence the inference is that injury to CHD was due to transmission of heat due to cauterization.
8.Complications at Jipmer had nothing to do with the LC done by Opposite parties.
9.Jipmer records are not subjected to expert scrutiny. All major complications to the complainant have arisen only after Hepaticojejunostomy was done at Jipmer. Jipmer ought to have been impleaded as a party.
10.Injury to bile duct was unfortunate but it was one of the known complications of the surgery.
11. No proof of negligence has been given.
22. While perusing the case materials, this Commission came across the article ―Bile duct injury during cholecystectomy: Culpable or unintentional ‗Choledochocide'‖ by Dr.Vinay Kumar Kapoor in Journal of Minim Access surgery suo moto in the website pubmed.ncbi.nlm.nih.gov.Dr Vinay Kumar Kapoor is a Senior professor in dept of Surgical Gastroenterology in Sanjay Gandhi Post Graduate Institute of Medical 13 Sciences, Lucknow. Visiting faculty in many hospitals in USA ,UK Germany, UAE.He has written books on clinical surgery, safe cholecystectomy,book chapters on many surgical text books ,about 150 original articles in reputed international journals and review articles and contributed significantly for the development of guidelines for safe cholecystectomy in India titled ‗SELSI Consensus statement for safe cholecystectomy -Prevention and management of Bile Duct Injury. In the said article, the eminent surgeon describes in detail how he would deal with complaints of negligence in Laparoscopic cholecystectomy cases in Indian conditions.
23. Based on this article, a questionnaire was prepared and the Opposite party 2 was requested to reply.
The questionnaire is reproduced ―1.What is the training in LC received by you either as a resident or later as a full-time observer ?Pl.give details including period of training(s)and the Institution (s) which imparted the training?
2.Whether records of all LC patients, namely preoperative workup, details of the operative findings and the operative procedure, complications, discharge and follow-up are maintained by you?If so, copies of 10 such cases including the complainant's may be furnished.
3 Whether video recording is usually done of LCs and if so why is the recording of this case not submitted ? If not, why not? If video recording is not possible/available, whether at least few pictures of the operative findings, especially of the Calot's triangle, are available?
4 How many LCs have you done and what is the incidence rate of BDI ? 14 5 What was the preoperative workup done? Whether liver function tests (LFT) and ultrasonography (US) were done ? Was there any suspicion of biliary obstruction on LFT or US?
6.Whether intraoperative/preoperative cholangiography, intraoperative US, indocyanine green cholangiography were done to delineate the biliary ductal anatomy?
7. Whether a 30° laparoscope was used?
8.Whether the BDI was detected intraoperatively and if so what is the measure taken?
9.When a BDI or bile leak was suspected post operatively whether appropriate investigations, e.g., total leucocyte count, differential leucocyte count, LFT, US/computed tomography (CT)/magnetic resonance imaging (MRI) isotope hepatobiliary scintigraphy/scintigraphy were done and if so when? What were the findings and measures taken ?
10.What thermal injury avoidance measures were taken?
11. What measures were taken when bile leak and collection were found on investigations?
12.Who did ERCP in Rani hospital? What is the qualification of the surgeon who did the ERCP?
13.What was the status of the patient at the time of discharge, namely general condition, vital signs and abdomen and whether they are documented in the records.
14.What were the instructions to the patient to return to the hospital/surgeon in case of any problem?
15.Whether the Patient was readmitted after discharge and if yes, when and why? 15
16.When the patient and the relatives were informed about the complication, i.e., BDI and its planned management and whether this communication is documented in the records ?
17.What is the role played by you in referring the complainant to Jipmer?
18.Whether a detailed referral note describing the operative findings and the operative procedure, postoperative course, investigations done and their reports, management done and the status of the patient at the time of referral was sent to Jipmer? Whether such discharge summary was given to the complainant?
19.Why the hospital in patient records of the complainant have not been submitted?
Instructions for furnishing reply :
1.Documents / video recordings may be enclosed wherever possible and felt necessary.‖
24. The questionnaire was served to the Opposite party surgeon on 19.11.2025. A memo was filed objecting to the serving of questionnaire on 12.01.2026. The Counsel for the Opposite parties presented his oral arguments .He stated that the Commission has to restrict itself to the evidence presented and deposition of witnesses and cannot go beyond them.
25. The objections are summarised below.
1.Section 38 (9) of Consumer Protection Act, 2019 does not vest this Commission with powers of serving interrogatory as provided under Order 11 Rule 2 CPC for examination of parties on interrogatory.16
2 Even assuming that this Commission can invoke Order 11 Rule 2 of CPC for examination of any opposite party, such interrogatory can be served only by parties to the proceedings and not by the Commission.
3. Even though the Civil Court is empowered to put its own question to the party during the course of their examination for clarification ,the tribunal may not be empowered to exercise such powers.
4. Even if the Commission is deemed to be empowered to put such questions they must be based on pleadings and evidence of parties.
5. Majority of questions put forth by this Commission are not based on the pleadings of the complainant. It is for the complainant to make out his case of medical negligence based on pleadings and evidence.
6 The Commission cannot aid the complainant in his attempt to establish medical negligence by raising questions on a completely new angle and thus taking the opposite parties by surprise. Principles of burden of proof are also violated.
26. After careful consideration of the objections they were overruled vide order dated 04.03.2026 observing that ―the C.P.Act has empowered the Commission to summon and examine the defendant on oath ,to receive evidence on affidavit and to require the production of documents.The Commission has issued a questionnaire when summon could have been issued for the appearance of the defendant /opposite party and depose on oath or furnish affidavits. When the statute permits a more powerful course of action,the 17 serving of questionnaire to elicit information is well within the powers endowed on the Commission.‖ It was further observed that the Consumer Commissions are to follow the principles of inquisitorial system and natural justice to arrive at a just and proper conclusion after hearing both the parties and the questionnaire was served with that purpose. Judgment of Hon'ble Supreme Court in India Photographic Company Ltd. Vs. H.D. Shouri, Civil Appeal No. 5310 of 1990 decided on 03.08.1999 and judgment in Deepak Jaiswal, Ms. Astha Tyagi Vs. The Oriental Insurance Company, RP No. 1922 of 2004 of Hon'ble National Commission were cited in support. The Opposite party was given opportunity to file his reply to the questionnaire before 18.03.2026 and the replies were furnished on 24.03.2026 and they are discussed at the relevant places of this order.
27. Heard both sides. Evidence, documents and medical literature produced and the reply to the questionnaire were carefully perused. The following issues are framed for consideration.
1.Whether the complainant is a consumer?
2 Whether the allegation of negligence and deficiency in treatment made by the complainant is correct or not ?
3.If there was negligence or deficiency, what is the compensation to be given to the complainant?
28. Issue 1.Whether the complainant is a consumer?
As per Section 2 d (ii) of Consumer Protection Act,1986 ,Consumer means any person who hires or avails of any services for a consideration which has been paid or promised. Section 2(1)(o)defines 'service' as service of any description made available to 18 potential users including the provision of facilities in connection with banking ,financing ,transport etc. Medical services was not specifically included in the definition. In 1995,in the case of V P Shantha vs Indian Medical Association, Hon'ble Supreme Court brought the medical profession within the ambit of service as defined in Section 2 (1) (o) of the Act .
29. The complainant herein Thiru.Srinivasan availed treatment in the Opposite Party's hospital and treated by the Opposite party surgeon on payment of required consideration.
Hence the complainant is undoubtedly a consumer under the CP Act . Issue No. 2: Whether the allegation of negligence and deficiency in treatment made by the complainant is correct or not ?
30. Cholecystectomy is a surgery to remove the gallbladder. The gallbladder sits just below the liver on the upper right side of the abdomen. The gallbladder collects and stores the digestive fluid made in the liver called bile. Laparoscopic cholecystectomy is done by inserting a tiny video camera and special tools through several small incisions to see inside the abdomen and the gallbladder is removed. In some cases, one large incision may be used to remove the gallbladder. This is called an open cholecystectomy and requires a longer hospital stay and recovery.
31. Before analysing whether there was any negligence or deficiency in the treatment accorded it would be appropriate to analyse the judgements cited by the parties on 19 medical negligence. The legal principles governing medical negligence as culled outfrom the judgements cited by the parties are as below :
1.Deep Nursing Home vs Manmeet Singh ―23. As pointed out in Jacob Mathew vs. State of Punjab and another, simply because a patient did not favourably respond to the treatment given by a physician or if a surgery failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur. This edict was reiterated in Martin F. D'Souza vs. Mohd. Ishfaq wherein, it was pointed out that no sensible professional would intentionally commit an act or omission which would result in harm or injury to a patient as the reputation of that professional would be at stake and a single failure may cost him or her dear in that lapse. It was also pointed out that sometimes, despite best efforts, the treatment by a doctor may fail but that does not mean that the doctor or surgeon must be held guilty of medical negligence, unless there is some strong evidence to suggest that he or she is. It was also pointed out that Courts and Consumer Fora are not experts in medical science and must not substitute their own views over that of specialists. ...
2. Neeraj sud and another vs Jaswinder Singh ―14. It is well recognized that actionable negligence in context of medical profession involves three constituents (i) duty to exercise due care; (ii) breach of duty and (iii) consequential damage. However, a simple lack of care, an error of judgment or an accident is not sufficient proof of negligence on part of the medical professional so long as the doctor follows the acceptable practice of the medical profession in discharge of his duties. He cannot be held liable for negligence merely because a better alternative treatment or course of treatment was available or that more skilled doctors were there who could have administered better treatment.
15. A medical professional may be held liable for negligence only when he is not possessed with the requisite qualification or skill or when he fails to exercise reasonable skill which he possesses in giving the treatment."
"16. When reasonable care, expected of the medical professional, is extended or rendered to the patient unless contrary is proved, it would not be a case for actionable negligence. In a celebrated and very often cited decision in Bolam v. Friern Hospital Management Committee (Queen's Bench Division)3, it was observed that a doctor is not negligent if he is acting in accordance with the acceptable norms of 20 practice unless there is evidence of a medical body of skilled persons in the field opining that the accepted principles/procedure were not followed. The test so laid down popularly came to be known as Bolam's test and stands approved by the Supreme Court in Jacob Mathews v. State of Punjab and Another.
17. In Jacob Mathews (supra) this Court held that a professional may be held liable for negligence if he is not possessed of the requisite skill which he supposes to have or has failed to exercise the same with reasonable competence".
3.Bivji vs Sunita "34.Before proceeding further, let us understand what this Court has found to constitute medical negligence. In Jacob Mathew vs. State of Punjab, the Court held:
"48. (2) Negligence in the context of 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 the 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 the 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 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 21 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."
35. Following Jacob Mathew, the Court in Kusum Sharma vs. Batra Hospital laid down the following principles that are to be considered while determining the charge of medical negligence:
"I.) Negligence is the breach of a duty exercised 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. ... III.) .... The Medical Professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. IV.) A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.....
38. To hold a medical practitioner liable for negligence, a higher threshold limit must be met. This is to ensure that these doctors are focused on deciding the best course of treatment as per their assessment rather than being concerned about possible persecution or harassment that they may be subjected to in high-risk medical situations. Therefore, to safeguard these medical practitioners and to ensure that they are able to freely discharge their medical duty, a higher proof of burden must be fulfilled by the complainant. The complainant should be able to prove a breach of duty and the subsequent injury being attributable to the aforesaid breach as well, in order to hold a doctor liable for medical negligence. On the other hand, doctors need to establish that they had followed reasonable standards of medical practice."
4.Dr Jhunjhunwala vs Dhanwanti "22. It was held that a Physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100 % for the person operated on. The only assurance which such a professional 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 22 to him he would be exercising his skill with reasonable competence. This is what the entire person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of 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."
5. Kanhaiya Kumar Singh vs Park Medicare and Research centre "Negligence must be specifically pleaded and proved with urgent evidence and there is no scope for resume in negligence "
6. State of Punjab vs Shiv Ram "The onus of proof of negligence is on the person accusing negligence "there is no guarantee of success in any given treatment"
7. Tilat Chaudhry and another vs AIIMS and another Original Petition no 114 of 1999.
While Hon'ble NCDRC observed that CBD is a well known complication of LC and the same cannot be correlated as the act of negligence or carelessness on the part of the operating surgeon. the judgement adds that "However , that does not mean that a surgeon conducting the laparoscopic cholecystectomy procedure would be immune even if the CBD injury has been caused due to his negligence / lack of care in performing the said procedure."
32. It would be useful to recapitulate the course of treatment in the Opposite party hospital as given by the Opposite parties.
The patient /complainant visited the Opposite party hospital on 23.07.2018 and USG abdomen was done, revealed right ureteric calculus and related complication and asked to come on 01.08.2018. On 01.08.2018 the complainant was diagnosed with cholelithiasis and advised Laparoscopic Cholecystectomy (LC). On 07.08.2018Opposite party 2 Dr S.P.Ilango performed LC under General Anaesthesia. On 10.08.2018 USG abdomen was done and no fluid collection recorded. On 13.08.2018 abdominal pain and distension and USG done at NU life. Fluid collection of 271ml.Suspicion of bile duct injury. On 16.08.2018 discussions with the complainant and 23 his wife, explained about the possible CBD injury which is an expected and well documented complication of LC.(page 5 of written arguments) 16.08.2018 -MRCP done at Sono Scan centre.
21.08.2018-MRCP at MGMC&RI 22.08.2018 -ERCP at Rani Hospital 22.08.2018 -referred to Jipmer Dr.Kalaiyarasan
33. It is not in dispute that BDI (Bile duct injury) occurred to the complainant due to the surgery. It is the defence of the opposite party that BDI is one of the well known complications of LC and hence no negligence can be attributed to the opposite parties. This is evident from the following extracts :
1.
―m) One of the most documented and medically accepted side effects of Laparoscopic Cholecystectomy is a CBD injury which was clearly explained and an informed consent for the procedure was obtained from the complainant/ his relative.‖ page 6 of written arguments of Opposite parties.
2. ―p) Hence there is no negligence on the part of opposite parties. They gave best possible treatment. The complications that had arisen to complainant due to LC done by 2nd opposite party was one of the known complications, and hence no negligence can be attributed to opposite parties.‖page 7 of written arguments of Opposite party.
3. ―It is true that even if such mistake is done, it is only an error in judgment and not negligence perse. It is true that merely because common bile duct is injured in the manner narrated by me it is not automatic indication of medical negligence‖ - deposition of CW2 -cross examination.
4. ― .....that even if the complainant had bile duct injuries are most common complications in Laparoscopic Surgeries and even misidentification of the Common Bile Duct as Cystic duct is not due to negligence but due to inherent complications involved in the nature of surgery, the internal 24 complications in the patient and it cannot be considered as medical negligence.‖page 26 of written arguments.
34. Further the Opposite party says that the injury may have happened due to thermal injury .The relevant passages are extracted from the written arguments .
―According to opposite parties, the injury to bile duct might have been caused due to Cauterisation and not due to mistaken identification of CBD as Cystic Duct.‖(page 31 of written arguments) ―10.G. Electro-Cauterisation was the most probable cause:-
a. Since clipping of CBD by mistake is completely ruled out in the present case due to aforementioned factors, the other possibility of complainant suffering CBD injury was due to cauterization. b. Since electro-cautery is used in Laparoscopic Cholecystectomy, the chances of heat radiating to neighbouring tissues and it causing injuries to them is well documented complication in Laparoscopic cholecystectomy, which is clearly established in the medical literatures submitted by opposite parties. Further the factors like
a) Complainant had an uneventful 4 to 5 days without any leakage of bile fluid.
b) The fact that remnant of cystic duct were noticed in MRCP.
c) Injury was recorded at CHD also leads to an inference that injury to CHD was due to transmission of heat due to cauterization and not due to mistaken identification of CBD as cystic duct.‖(page 33 of written arguments.)
35. The OPs have submitted medical literature to support their contention.
1. Bile Duct Injury-Classification and prevention (Mukesh Nasa, Zubin Dev Sharma, Mahesh Gupta and Rajesh Puri) Bile duct injuries (BDIs) commonly occur after laparoscopic cholecystectomy and these are the cause of increase in post procedure morbidity with significant impact on the quality of life. Gastroenterologists are usually called in to manage such complications. Laparoscopic cholecystectomy, which has become a gold standard for gall stone disease over the years, is responsible for 80 to 85% of these injuries. BDIs are more frequent during laparoscopic cholecystectomy compared with an open procedure (0.3% open vs. 0.6% laparoscopic) and are mostly recognized postoperatively as bile leak and biliary obstruction.
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2.Common Bile Duct Injury in Laparoscopic Cholecystectomy: Inherent Risk of Procedure or Medical Negligence--A Case Report (Lalwani S, Misra MC, Bhardwah DN, Rajeshwari, Rautiji R, Dogra TD) ―Richardson, et al (1996) has mentioned that severe inflammation, aberrant anatomy and poor visualization as contributory factors for CBD injury.This complication may occur even when the operating surgeon is well experienced.Francoeur et al (2003) reported that these injuries could not be anticipated and as such it is an inherent risk of this procedure thus, it is unavoidable and uniformly first concern of surgeon after injury is about the patient's well being.‖page 50 ―There was/were no evidence/s or finding/s which could substantiate the allegation of negligence against the treating doctors. The literature supports the bile duct injury as an inherent risk of procedure.‖ page 51.
3.Surgeons opinions of legal practice in bile duct injury following cholecystectomy - Alex Gordon-Weeks, Harsh Samarendra, (Alex Gordon-weeks, Harsh Samarendra, John de Bono, Zahir Soonawalla & Michael Silva) ― It is unlikely that the risk of BDI during LC et al (or indeed open cholecystectomy) can ever be eliminated, even in the hands of an expert and with due care. The results of this survey therefore suggest that it is inappropriate to assume negligence from the fact of BDI alone. It would be sensible, as with other injuries following surgery, to examine each injury on its own merits before deciding whether the injury was the result of negligent technique.‖
36. This Commission feels apt to refer to the following passage from P.N.Gupta Vs. Rajinder Singh Dugra judgment rendered by Hon'ble Supreme Court in C.A.No.7262 of 2012 ―8.After detailed scrutiny of the situation, the Hon'ble National Commission summarized as follows:
a. Anatomically, the biliary tree consists of the left and right hepatic ducts joining to form the common hepatic duct, cystic duct from the gallbladder joining the common hepatic duct to form the common bile duct (CBD) and 26 CBD and the pancreatic duct joining together at the ampulla of Vater in the D2 (second) part of the duodenum.
b. With laparoscopic cholecystectomy widely replacing open cholecystectomy, the incidence of post-operative bile leakage due to iatrogenic (any adverse condition in a patient resulting from treatment by a physician or surgeon) injuries to the common bile duct or any of the preceding biliary ducts has increased more than two-fold. However, even then, it remains a known complication with a low probability/incidence (0.3% - 2.7%, i.e., 3-27 in 1000 cases of LC and 0.25% - 0.5%, i.e., 2.5-5 in 1000 cases of OC)."
37. From the above extracts of medical literature ,it is clear that CBD injury is a well known complication of LC. While discussing the incidence of the CBD injury ,the medical literature submitted discusses the preventive measures that can be taken. Preventive measures
38. In the article ―Laparoscopic Cholecystectomy: Fundus First or Fundus Last-- Which and Why?‖by Moatassim Barham - article submitted by the Opposite party , it is stated ― CBD injuries, which occur with LC, frequently involve complete disruption and excision of ducts and may be associated with hepatic vascular injuries. Since, major CBD injuries with LC are most frequently due to duct misidentification, techniques for prevention and/or recognition focus primarily on careful anatomic definition to ensure the ‗critical view' prior to dividing any structures. The Society of American Gastrointestinal and Endoscopic Surgeons (SAGES) first offered guidelines for the clinical application of LC as a safe and effective treatment for most patients with symptomatic gallstones in May 1990. These guidelines have periodically been updated, and the last guidelines, in November 2002, expanded to include all laparoscopic biliary tract surgeries, keeping in mind the safety and effectiveness of the procedures.‖ 27
39. Now we proceed to peruse the SAGES guide lines referred above .
SAGES (Society of American Gastrointestinal and Endoscopic Surgeons) Guidelines for the Clinical Application of Laparoscopic Biliary Tract Surgery ― Safe technique. The safety of laparoscopic cholecystectomy is based largely on determining the anatomy of the cystic duct, common bile duct, cystic artery and hepatic arteries. Since major bile duct injuries with laparoscopic cholecystectomy are most frequently due to duct misidentification, techniques for prevention and/or recognition focus primarily on careful anatomic definition to ensure the ―critical view‖ prior to dividing any structures including dissection 1) to completely expose and delineate the hepatocystic triangle, 2) to identify a single duct and a single artery entering the gallbladder, and 3) to completely dissect the lower part of the gallbladder off the liver bed. Though the protective effect of the practice continues to be debated, routine use of intraoperative cholangiography may decrease the risk or severity of injury and improve injury recognition.The general principle of not dividing any structure until you are certain of its identification applies here; the need for caution and vigilance cannot be overstated given evidence which supports visual misperception as an underlying cause of major bile duct injury[24], coupled with the potential for complacency which may result from the rarity of bile duct injuries.‖
40.We refer to one more article .
Avoidance of bile duct injury in laparoscopic cholecystectomy with feasible intraoperative resources: A cohort study Authors:
Deari A. Ismaeil https://doi.org/10.3892/br.2024.1798 ―In conclusion, achieving the CVS and identifying RS can serve as practical landmarks for ensuring the safety of LC and reducing the CR. Furthermore, employing meticulous dissection techniques and allocating sufficient time for dissection can be regarded as effective strategies for preventing BDI and minimizing the CR.‖
41. Now let us examine whether the surgery was conducted as per standard protocol and necessary precautions were taken to avoid BDI.
28
Qualification, Training and Experience
42. One of the important reasons for BDI in LC is the inadequate training and inexperience of the operating surgeon.
First question in the questionnaire is relevant here.
―Question 1.What is the training in LC received by you either as a resident or later as a full-time observer ? Pl.give details including period of training(s)and the Institution (s) which imparted the training?
Reply : ―I have completed my general surgery resident training in Indira Gandhi Govt General Hospital, Pondicherry.‖ ―Completed my fellowship having course in Basic and Advanced Laparoscopy Surgery in 2013 in MISTI ( Minimal Invasive Surgery Training Institute).‖ Views of the Commission:
From the reply and the documents available it is seen that the Opposite party surgeon is DNB qualified.However regarding laparoscopy surgery he has produced a certificate for having undergone training issued by one MISTI from 02.12.2013 to 14.12.2013 (12 days)and showing that a degree of FMIS is awarded.Credentials and location of the institute or where the training was imparted is not given..How a 12 days training will entitle a person to a degree is beyond imagination.Dr .V.K Kapoor in the article ‗Bile duct injury during cholecystectomy: Culpable or unintentional ‗Choledochocide' cited supra which was utilised for preparing the questionnaire says the surgeon should have received proper and adequate training in LC either as a resident or later as a full time observer for an adequate period of time in a department regularly performing LC 29 and not just attendance at a weekend course or workshop. Hence this Commission is of the view that this training is not enough to perform such surgeries.
After educational qualification and training,we take up experience. ―Question No.4: How many LCs you have done and what is the incidence rate of BDI? Answer: Approximately 70, multiple, do not exactly remember the Bile Duct Injuries incidents.‖ Views of the Commission:Number of LCs done from 2013 to 2026 is 70 which seems to be quite low. The operation impugned was done in 2018 . The LCs done from 2013 to 2018 would have been still low. Hence the Opposite party 2 surgeon could not be well experienced in the conduct of LC.
43. Preparation for cholecystectomy We refer to Bailey and Loves Short practice of Surgery 27th edition regarding preparation for LC. In page 1202 a summary box is given.According to that steps to be taken are:
1.Full blood count
2.Renal profile and liver function test ,
3.Prothrombin time, 4 Chest X Ray and ECG,
5. Antibiotic prophylaxis
6.Deep vein thrombosis prophylaxis
7.Informed consent.
We refer to question 5 in the questionnaire.
―Question No.5: What was the preoperative workup done? Whether liver function tests (LFT) and ultra-sonography (US) were done? Was there any suspicion of biliary obstruction on LFT and US?
Answer: Yes, Preoperative LFT and USG done. No suspicion of biliary obstruction.‖ 30 Views of the Commission: Even though it has been stated that LFT was done, this is contrary to the records available.The only test report dated anterior to the surgery is Ex.C4 and only blood test reports are available in that report. No LFT reports are seen. Nor any reports filed by the Opposite party. Hence we conclude that necessary pre operative tests were not done.
Not only that no opinion of cardiologist and anaesthetist regarding the fitness of the patient for surgery has been produced.
Pre Anaesthetic Evaluation form also has been found filled but not signed by any one. Pre-operative check list, Anaesthesia care plan are not available. Consent
44. In Samira Kohli vs Dr.Prabha Manchanda C.A no 1949 of 2004 Hon'ble Supreme Court laid down the principles regarding consent as follows:
―32. We may now summarize principles relating to consent as follows :
(i) A doctor has to seek and secure the consent of the patient before commencing a 'treatment' (the term 'treatment' includes surgery also). The consent so obtained should be real and valid, which means that : the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what is consenting to.
(ii) The 'adequate information' to be furnished by the doctor (or a member of his team) who treats the patient, should enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment as to whether he should submit himself to the particular treatment or not. This means that the Doctor should disclose (a) nature and procedure of the treatment and its purpose, benefits and effect;
(b) alternatives if any available; (c) an outline of the substantial risks; and (d) adverse 31 consequences of refusing treatment. But there is no need to explain remote or theoretical risks involved, which may frighten or confuse a patient and result in refusal of consent for the necessary treatment. Similarly, there is no need to explain the remote or theoretical risks of refusal to take treatment which may persuade a patient to undergo a fanciful or unnecessary treatment. A balance should be achieved between the need for disclosing necessary and adequate information and at the same time avoid the possibility of the patient being deterred from agreeing to a necessary treatment or offering to undergo an unnecessary treatment."
45. According to Dr.Kapoor some of the common and all the major complications of LC namely shoulder pain ,wound infection, respiratory complications and BDI ; chances of conversion, possibility of a partial cholecystectomy and risk of retained CBD stone should be informed and consent obtained . It is seen from Ex C 17 consent form , bile duct injury / leak, bowel injury, haemorrhage, sub hepatic abscess, retained bile duct stones have been mentioned as possible complications but not the other complications listed above. Even though mentioned that alternatives available were informed details are not available in the form as it is a pre printed form .Adverse consequences of refusing treatment have not been given. The name of the doctor who is authorised to perform the surgery is left blank.
In consent for anaesthesia form (marked page 33 in Ex C17) ,the name of the operation/ procedure for which consent is obtained is blank. Only signature has been obtained from the complainant. Consent for blood transfusion has not been produced. Thus we can conclude that consent obtained is not a fully informed consent. 32 Operative procedure
46. The Opposite party initially in reply version to the complaint stated that ―CBD injury might not have occurred because of the surgery. There are various other causes that result in CBD injuries‖. (Para 6 viii of the reply ).This is in contradiction to the reply furnished in para 6 (v) wherein the Opposite party says he explained to the complainant and his wife that such CBD injuries are expected and well documented complications of Laparoscopic Cholecystectomy. In written arguments the opposite party has taken the defence that Electro Cauterization is the most probable cause for the BDI. Notwithstanding the shifting replies , let us examine the latest defence put forth.
47. Operation notes as marked by the complainant were perused. As the notes are handwritten and the handwriting is not very clear we go by the version of Opposite party 2 himself in reply version/ written arguments.
― 2nd opposite party attempted Duct to Fundus approach for LC but found difficult to dissect the cystic duct and cystic artery. Hence changed to Fundus to Duct approach‖source III (d) of written arguments. In the operation notes the notings are ―Difficulty in dissecting the cystic duct and cystic artery‖ ―?? critical view of safety‖
48. This shows that the operation did not proceed smoothly and difficulties were encountered. Use of appropriate instruments to achieve the critical view of safety (CVS) is essential to prevent injuries as emphasised by medical literature extracts reproduced above.
33Questionnaire question : ―3.Whether video recording is usually done of LCs and if so why is the recording of this case not submitted ? If not, why not? If video recording is not possible/available, whether at least few pictures of the operative findings, especially of the Calot's triangle, are available?‖ Answer: No, Laparoscopic procedures are always done with the assistance of a high definition camera. Recording is not the standard practice and hence, it was not recorded.‖ Question: ―7.Whether a 30° laparoscope was used?
Answer : Yes, it was used‖ Views of the Commission: Even though it has been stated in the affirmative that the said instrument was used, no evidence has been produced including photographs and no mention is seen in the operation notes.
No CD recording of the operation has been produced. This is in spite of the specific instructions in the questionnaire to enclose documents/video recordings wherever possible and felt necessary. The Ops have refuted that recording is not the standard practice..As per the opinion of Dr.Kapoor, Video recording should be available and if not at least photographs should be available. On the other hand the OPs have not given any supporting material regarding the practices to be adopted in LC.
49. As the OPs have stated that thermal injury could be the cause for BDI in the case on hand, it is natural to expect that sufficient measures are taken to avoid thermal injury. In the questionnaire one of the question was to elicit information on this aspect and the 34 question was ‗10.What thermal injury avoidance measures were taken ?‖. The reply was a cryptic ‗Meticulous use of cautery' .
50. We refer to an article in World J Gastrointest Surg. 2019 Feb 27;11(2):62-84. doi: 10.4240/wjgs.v11.i2.62 Safe laparoscopic cholecystectomy: Adoption of universal culture of safety in cholecystectomy written by Vishal Gupta , Gaurav Jain "Judicious use of energy sources Energy devices used to dissect the HC triangle and to separate the gallbladder from its bed are monopolar cautery, bipolar cautery and ultrasonic energy devices. While the monopolar cautery is used most commonly, current evidence is not sufficient to recommend one over the other in terms of safety though the operative time may be shorter with ultrasonic device. All these energy sources are considered appropriate for safe cholecystectomy. The operating surgeon must be aware of safe handling of these energy devices.
If a monopolar energy device (most with hook cautery) is used, it is important to: (1) keep it at low setting (≤ 30W) to avoid arcing of current to the bile duct; (2) divide a small amount of tissue at a time after a gentle pull to avoid injury to deeper structures by the heel of the hook cautery; (3) use intermittent short bursts of current at 2-3 s intervals avoid thermal spread to the bile duct; and (4) avoid blind use of cautery in the case of brisk bleeding.
While lateral thermal spread is less with an ultrasonic energy source, it may be cumbersome to use the long and relatively straight jaws to dissect in the HC triangle. While this may be used to divide the cystic artery, division of the cystic duct using the ultrasonic device is not the standard practice despite some recent reports indicating its feasibility. Bipolar cautery is useful to control bleeding in the HC triangle and in the liver bed."
35
51. Another article ―Complications in Surgical Diathermy: Causes and Prevention‖ By Anwar Marthya Hamid, Raju Karuppal, Fathma Hannah in Medical Research Archives, https://doi.org/10.18103/mra.v13i6.6625 of European Society of Medicine suggests the following measures are to be taken.
―SAFE OPERATING TECHNIQUES The lowest effective power setting should be used. Surgeons should use short activation times. The tip of the electrode should be activated only when it is in contact with the tissues. In laparoscopic surgeries, the metal tracers with plastic or other insulation shielded instrument should be used. Use of Active Electrode Monitoring (AEM) will help to detect stray currents and trigger auto shut-off."
52. The operation notes and above reply that ‗Meticulous use of cautery' does not throw any light as to what measures if any were taken and how necessary reasonable care was exercised in performing the surgery. Apart from this very superficial reply ,no other details regarding cautery usage have been given. While saying that electro cauterization is the most probable cause for BDI, the opposite parties have not given any evidence or literature saying that BDI due to thermal injury is an inevitable complication. The article ‗Complications in Surgical Diathermy: Causes and Prevention' cited supra indicate that with proper steps, the BDI can be avoided. The admission that BDI occurred during the LC implies that necessary precautions and care were not taken in the absence of any evidence to the contrary.
53. In Savita Garg vs Director National Health Institute cited supra it has been observed as under by the Hon'ble Supreme Court 17 "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 36 justify that there was no negligence on the part of the treating doctor or hospital. Therefore in any case the hospitals are in a better position to discuss what care was taken or what medicine was given to the patient it is the duty of the hospital.‖
54. Applying this yardstick we have to conclude that the Opposite parties have not discharged their duty to elucidate the care and precautions taken by them to avoid BDI in general and by use of cautery in particular.
Post operative care
55. Usually the Laparoscopic Cholecystectomy patients are discharged within one or two days of surgery.
56. In the instant case, according to the OPs after the surgery on 07.08.2018 the complainant had uneventful stay for four days without any leakage of bile fluid ( page 33 of written arguments) ―Complainant spent 5 days in the hospital of the opposite parties after the laparoscopy surgery on 07.08.2818 with minimal difficulties and with no signs of any post surgical complications.‖ (Para 6(iii) of reply version).If the stay was uneventful as claimed, why the complainant was not discharged within one or two days after the surgery has not been explained. Whether the reason for non discharge was kept informed to the patient is also not in record. In the absence of the IP records, the reasons could not be ascertained. On the other hand the Opposite party 2 in his deposition as RW2 states in cross examination that ―I don't remember the date of surgery.‖ ―I don't remember that the patient suffered from continuous vomiting and abdomen pain when he was in the ward. I don't remember whether I visited the patient on the following day‖. ―I 37 don't remember whether any medicine was given by me for the complaint of vomiting.‖ ―I don't remember when the patient was shifted to the ward.‖ The Opposite party 2 could have referred to the case records maintained by the hospital and come prepared and replied but he chose not to do so. Failure to furnish the information in the deposition and to produce IP records leads the Commission to draw adverse inference.
57. The opposite party doctor informed the suspected BDI to the complainant and his wife only on 16.08.2018 which is 9 days after the surgery (para 6(5) of reply version) and discussed ERCP and other course of action. Proper and timely communication with the patient and/or his relatives is essential to keep up the confidence and morale of the patient and caregivers. When the surgery was not a smooth affair as discussed earlier and the patient was complaining of stomach pain, vomiting etc , possibility of BDI could have been suspected and immediate necessary measures to identify the root cause taken. Fruitful MRCP was done on 21.08.2018 after 14 days of surgery which is clearly delayed.
58. MRCP was done first on 16.08.2018 in Sono scan, Puducherry and as the results were not satisfactory was done again in Mahatma Gandhi Medical College , Puducherry on 21.08.2018. Even though the Mrcp was not done in the Opposite party hospital and a private lab it is the responsibility of the opposite parties to refer the patient to a proper facility so that he is not put to further difficulty. After MRCP and failed ERCP at another institution , Rani hospital Pondicherry, the complainant was referred to Jipmer . 38
59. The Opposite party was asked in the questionnaire ―18.Whether a detailed referral note describing the operative findings and the operative procedure, postoperative course, investigations done and their reports, management done and the status of the patient at the time of referral was sent to Jipmer? Whether such discharge summary was given to the complainant?‖ ―Answer: Yes ‖ Views of the Commission: Contrary to this reply, the referral note in Ex C 16 in the printed form ―Discharge Summary‖ mentions only the names of the procedures done. Investigations, operative findings ,Discharge summary are not given . This is not as per the requirements laid down by the professionals. According to Dr.Kapoor in his article cited supra, detailed referral note describing the operative findings , the operative procedure, post operative course, investigations done and their reports, management done and status of the patient at the time of referral should be sent to the referral hospital. The referral note falls far short of the requirements.
Question 14.What were the instructions to the patient to return to the hospital/ surgeon in case of any problem?
Answer: Patient did not return to our hospital after discharge.‖ Views of the Commission. The opposite party says the patient did not return after discharge but conveniently has not mentioned what was the advice / instructions given. In cross examination the OP2 admits ― it is true that the discharge summary should contain date of admission, date of discharge, medication, dietary instruction and medical 39 followup and plans. However , in fact, no discharge summary has been produced by the parties.
Documentation.
60. Non production of In Patient (IP) records.
It is also noted as pointed out by the complainant that the IP records of the complainant/patient during his treatment at the Opposite party hospital were not produced by the Opposite Parties. The issue of non production of IP records was raised by the complainant in the cross examination of the RW2 ie Opposite party 2 surgeon. The reply was ― it is true I have not produced the IP case records of the complainant‖. He could have sought permission to produce the IP records at that stage or in reexamination. It was not done. The complainant raised it in the written argument. The Opposite party did not furnish any reply. This was specifically asked in the questionnaire. The question and reply are reproduced below:
―19.Why the hospital in patient records of the complainant have not been submitted?
Answer: Since it was never called for or demanded, it was not filed. If the commission directs us to produce the same we are willing to produce the same.‖
61. This is when the opposite party was directed to produce the records of 10 cases of LC including that of the complainant vide question no 2 of the questionnaire. Instead of grabbing this opportunity to produce the records and explain their treatment , the reply that " If directed ,the records will be produced" only show the unwillingness to produce the case records leading this Commission to draw adverse inference about the treatment given.
40
62. Regarding the importance of documentation In Sona Singh vs Nazareth Hospital 2016 SCC online 2150 , Hon'ble NCDRC observed ―20. It's very important that the treating doctor should properly document the management of a patient under his care. Medical record keeping has evolved into a science of itself. This will be the only way for the doctor to prove that the treatment was carried out properly. It is wise to remember that "Poor records mean poor defense, no records mean no defense". Medical records include a variety of documentation like patient's history, clinical findings, diagnostic test results, surgical procedure, preoperative and postoperative findings." (emphasis supplied)
63. As stated already as enjoined in Savita Garg judgement it is the responsibility of the hospital / treating doctors to explain about the care given with relevant records. The Opposite parties have not discharged that responsibility.
64. Similar case cited by Defence The opposite party has submitted a copy of the report of the Committee of Doctors in respect of the complaint of one Govindammal w/o Narayanan against PIMS, Puducherry. The patient had undergone Laparoscopy Cholecystectomy at Pondicherry Institute of Medical Sciences , Puducherry and developed intra abdominal biliary collection and referred to Jipmer for further management. The Committee has concluded that there was no negligence in the treatment given to the Tmt.Govindammal.
65. The facts of both the cases are different and not comparable and in medical negligence cases, especially, each case will have to be analysed on the facts and circumstances and no uniform conclusion can be drawn.
41Witness of Fact
66. The Opposite parties have claimed that CW2 Dr.Kalaiyarasan is not an expert witness as he treated the complainant in Jipmer and his testimony has to be treated on par with the opposite party doctors who deposed for themselves and his deposition has contradictions. They quoted the judgment of Hon'ble Supreme Court in Ramesh Chandra Agrawal vs Regency Hospital Ltd. & Ors on 11 September, 2009 Equivalent citations: AIR 2010 SUPREME COURT 806, wherein it was held ―14) It is not the province of the expert to act as Judge or Jury. It is stated in Titli v. Jones (AIR 1934 All 237) that the real function of the expert is to put before the court all the materials, together with reasons which induce him to come to the conclusion, so that the court, although not an expert, may form its own judgment by its own observation of those materials.
15) An expert is not a witness of fact and his evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of these criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions."
67. In accordance with the ratio laid by the Hon'ble Supreme Court this Commission has considered the evidence available on record, medical literature and judicial precedents and guidelines and formed its own judgment.
42Non joinder of parties.
68. The opposite parties have taken the defence that Jipmer's treatment ought to have been subjected to thorough scrutiny since his conditions worsened only after he approached JIPMER for management . Since Jipmer is not a party to the proceeding and they are most just, necessary and proper party the complainant ought to have included them as one of the parties to proceedings. We refer to the judgment of Hon'ble Supreme Court in Savita Garg cited supra ―So far as the law with regard to the non joinder of necessary party as per civil procedure code order 1 rule 9 and order 1 rule 10 no suits shall fail because of mis joinder or non joinder of parties. It can proceed against the persons who are parties before the court. Therefore even if after the direction given by the commission the concerned doctor and the nursing staff who were looking after the deceased have not been impleaded as opposite parties it cannot result in dismissal of the original petition as a whole.Hence the the plea that non joinder of parties will affect the petition is not correct and has to be rejected. " Applying the ratio laid above ,we hold that non impleading of Jipmer by the complainant will not affect the adjudication of this complaint.
69. In view of the above findings and discussions ,we come to the definitive conclusion that the Opposite party 2 did not conduct the surgery on the complainant as per the standard protocol and reasonable care and diligence has not been shown in the treatment rendered to the complainant while at the Opposite party 1 hospital. Thus the Opposite party 2 surgeon is liable for negligence and deficiency. 43
70. Having held that Opposite party 2 surgeon has rendered deficient service, the role of the opposite party 1 hospital is examined now. We refer to the judgment of Hon'ble High Court of Madras in Mrs. Arpana Dutta vs Apollo Hospitals Enterprises And Ors. on 18 February, 2000 2002ACJ954 with advantage .
The judgment quotes V. Chandrasekhar v. Apollo Hospitals Enterprises Limited(1996) 1 Mad LW 58 (SN);wherein Pratap Singh, J. has observed as follows :--
"Now large number of private hospitals, nursing homes and clinics have emerged. In view of the good reputation they have built, patients go there for treatment in large numbers. These hospitals provide the medical treatment to those patients through doctors employed by them or by doctors who work there on some arrangement. These hospitals raise the bills for the medical treatment provided to those patients. In the circumstances, if the patient suffers injury due to negligence of the doctors provided in those negligence, the hospitals would be equally liable for damages, on the principles of vicarious liability or on the principles analogous to vicarious liability. When these hospitals provide these doctors to the patients and when they make the bill and collect the fees for the medical treatment given in those hospitals, these hospitals cannot shove of their responsibility and liability to pay compensation for the damages suffered by the patients due to the negligence to the doctors provided by these very hospitals."
Applying the above ratio ,we hold the Opposite party 1 hospital to be vicariously liable for the hardships undergone by the complainant.
Issue 3. If there was negligence or deficiency,what is the compensation to be given to the complainant?
71. As discussed this Commission has found both the Opposite parties, i.e the surgeon who performed the LC and the Hospital wherein the operation was performed to be deficient and negligent . Now we come to the question of compensation. In deciding 44 compensation we are guided by the decision of Hon'ble Supreme Court in Nizam Institute of Medical Sciences's case wherein it was held that if a case is made out, then the Court must not be chary of awarding adequate compensation. The relevant paragraph reads as under:
―88. We must emphasise 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 thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties concerned." Hon'ble Supreme Court in Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors. vs DLF Southern Homes Pvt. Ltd. & Ors. (2020) 16 SCC 512 held that "The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done."
In the matter of Charan Singh V/s Healing Touch Hospital & Ors, (2000) 7 SCC 668, Hon'ble Supreme Court held that:
"... While quantifying damages, Consumer Forums are required to make an attempt to serve the ends of justice so that compensation awarded, in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time, aims to bring about a qualitative change in the attitude of the service provider. Indeed, calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation 45 on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to the established judicial standards where the claimant is able to establish his charge."
72. As per Ex C18 the complainant has paid Rs 1,06,550 to the Opposite party hospital for the treatment. This amount is to be refunded by the Opposite party 1 hospital. Further the complainant is to be compensated for the mental agony and physical hardships and loss of income suffered by him due to the faulty surgery conducted by the Opposite parties. The complainant was only 30 years old at the time of surgery. He had to undergo corrective surgery at Jipmer causing physical and mental hardships and financial difficulties due to prolonged hospitalizations.
73. Considering the age of the complainant, prolonged treatment and other relevant factors ,we are of the considered view that Rs 2 ,00,000 shall be paid as compensation by Opposite party 1 hospital and Rs 4,00,000 shall be paid as compensation by Opposite party 2 surgeon which would be reasonable, fair and proper.
74. In the result the complaint is allowed and the Opposite party 1 is directed to repay
1. Rs 1,06,550 with 8 % interest from the date of complaint till date of realisation.
2. The Opposite party 1 is directed to pay Rs 2,00,000/- and Opposite party 2 is directed to pay Rs 4,00,000/- as compensation to meet the ends of justice.
3.The compensation shall be paid within 30 days failing which it will start bearing interest at the rate of 8% from the date of this order till date of realisation. 46
4. Cost of litigation is fixed at Rs 10,000/- payable to the complainant.
Dated this the day of 15th day of April 2026.
Sd/-
(S. SUNDARAVADIVELU) PRESIDING MEMBER Sd/-
(S. OUMASANGUERY) MEMBER COMPLAINANT's WITNESS:
CW.1 13.09.2023 R.Srinivasan (Complainant)
CW.2 05.07.2023 Dr.Kalaiyarasan
OPPOSITE PARTY'S WITNESS:
RW.1 27.11.2024 Dr.R.Muthukumaran
RW.2 27.11.2024 Dr.S.P.Ilango
COMPLAINANT's EXHIBITS MARKED THROUGH CW.1
Ex.C1 23.07.2018 Photocopy of the complainant's Medical Prescription
issued by M/s.Kumaran Multi Speciality Hospital,
Puducherry
Ex.C2 23.07.2013 Photocopy of USB Abdomen Scan report of the
complainant.
Ex.C3 01.08.2018 Photocopy of the complainant's Medical Prescription
Series 2 issued by M/s.Kumaran Multi Speciality Hospital,
Puducherry- 2Nos.
47
Ex.C4 07.08.2018 The photocopy of Test Report of the complainant 2
Series 2 nos. issued by M/s.Kumaran Multi Speciality
Hospital, Puducherry
Ex.C5 08.08.2018 The photocopy of Histopathalogy report of the
complainant issued by M/s.Kumaran Multi Speciality
Hospital, Puducherry.
Ex.C6 10.08.2018 The photocopy of Test Parameter result of the
complainant issued by M/s.Kumaran Multi Speciality
Hospital, Puducherry.
Ex.C7 10.08.2018 The photocopy of USB Abdomen Scan Report of the
complainant issued by M/s.Kumaran Multi Speciality
Hospital, Puducherry
Ex.C8 13.08.2018 The photocopy of Test Parameter result of the
complainant issued by M/s.Kumaran Multi Speciality
Hospital, Puducherry.
Ex.C9 13.08.2018 The photocopy of Scan report of the complainant
issued by NU life Advanced Diagnostic Centre.
Ex.C10 15.08.2018 The photocopy of Microbiology Chart report of the
complainant issued by Savary Medical Lab.
Ex.C11 16.08.2018 The photocopy of MRCP report of the complainant
issued by Sono Scan Centre.
Ex.C12 16.08.2018 The photocopy of Test Parameter result of the
complainant issued by M/s.Kumaran Multi Speciality
Hospital, Puducherry.
Ex.C13 19.08.2018 The photocopy of Test Parameter result of the
complainant issued by M/s.Kumaran Multi Speciality
Hospital, Puducherry.
48
Ex.C14 21.08.2018 The photocopy of MRCP Report issued by Mahatma
Gandhi Medical College and Research Institute,
Puducherry.
Ex.C15 22.08.2018 The photocopy of Report submitted by
Dr.G.Rajeshkumar, Department of Endoscopy, Rani
Speciality Hospital, Puducherry.
Ex.C16 22.08.2018 The photocopy of Discharge summary issued by
Dr.Kumaran Multi Speciality Hospital, Puducherry.
Ex.C17 -- The photocopy of Records and Reports issued by
Dr.Kumaran Multi Speciality Hospital, Puducherry.
Ex.C18 15.08.2018 The photocopy of Break up bills issued by
Dr.Kumaran Multi Speciality Hospital, Puducherry.
Ex.C19 26.10.2018 Discharge summary issued by JIPMER, Puducherry.
Ex.C 20 -- Photocopy of OPD Records issued by JIPMER
Hospital.
Ex.C21 21.11.2018 Copy of legal notice issued by the complainant to the
opposite Parties 1 and 2.
Ex.C22 24.11.2018 Acknowledgement card signed by the first opposite
party.
Ex.C23 24.11.2018 Acknowledgement card signed by the second
opposite party.
Ex.C24 03.05.2017 Certificate issued by Registering Authority of
Commercial Tax Department, Puducherry.
Ex.C25 26.06.2017 Certificate of provisional registration.
Ex.C26 21.02.2018 Loan Statement of account given by Jaya Priya Chit
Company.
49
LIST OF COMPLAINANT'S EXHIBITS MARKED THROUGH CW.2
Ex.X 1 -- The photocopy of Discharge summaries dated
Series-5 26.10.2018, 08.02.2021, 27.03.2021, 26.04.2021 &
28.07.2022 issued by the Department of Surgical
Gastroenterology, JIPMER, Puducherry.
LIST OF OPPOSITE PARTY'S EXHIBITS: Nil
LIST OF MATERIAL OBJECTS: Nil
Reply to questionnaire with case records of 10 cases - 567 pages.