National Consumer Disputes Redressal
Dr. Sanjay Gadekar vs Sangamitra @ Sandhya Khobragade on 20 May, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 484 OF 2015 (Against the Order dated 07/05/2015 in Complaint No. 371/2002 of the State Commission Maharastra) 1. DR. SANJAY GADEKAR SUPRATHET HOSPITAL & SURGICAL RESEARCH INSTITUTE LTD., RAJ KAMAL COMMERCIAL COMPLEX, 1ST FLOOR, OPP. TILAK PATRAKAR BHAVAN, PANCHASHEEL SQUARE, NAGPUR-440012 MAHARASHTRA ...........Appellant(s) Versus 1. SANGAMITRA @ SANDHYA KHOBRAGADE PLOT NO. 281, OLD SUBHEDAR LAYOUT, NEAR PIR BADA DARGAH, POST AYODHAYA NAGAR, NAGPUR-440012 MAHARASHTRA ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON'BLE DR. S.M. KANTIKAR, MEMBER For the Appellant : Mr. Anand V. Patwardhan, Advocate with Mr. Bharat Swaroop Sharma, Advocate For the Respondent : Mr. Yuwraj Khobragade, Advocate Dated : 20 May 2016 ORDER DR. S.M. KANTIKAR, MEMBER
1. The complainant, Ms. Sanghmitra Khobragade, who was suffering from abdominal pain, visited Government Medical College and Hospital (GMCH) at Nagpur. USG was performed and she was diagnosed as a case of 'gall stones' (cholecystitis with cholelithiasis). Therefore, she was advised to contact OP-Dr. Sanjay Gadekar for removal of gall bladder and stones by laparoscopic surgery. After consultation with OP on 16-02-2001, the patient got admitted next day The surgery was performed on 17-02-2001. It is alleged that, instead of laparoscopic surgery, the OP performed open cholecystectomy. The consent was obtained from the patient and husband on the dotted line on a blank form. The patient was discharged on 09-03-2001. It is alleged that the patient was never cured and developed complications of oozing of yellowish fluid through the drain. During post-operative follow up, it was not healed. She developed deep jaundice, became restless. Due to her uneasy condition, on 10-04-2001 she again approached GMCH as an outdoor patient .The doctor at GMCH advised the patient to contact a specialist either at Hyderabad or Mumbai. Therefore, the patient was taken to Shrikhande Hospital, Mumbai where she underwent major surgery on 21-04-2001 i.e. an end-to-side jejuno-jejunostomy. The operation lasted for 8 ½ hours. The patient recovered and was discharged on 30-04-2001. Therefore, what all had happened, was due to negligence on the part of OP which caused post-operative complications. She incurred huge expenses, suffered mental agony, as her 1 ½ year child was deprived of love and care. Thus, the complainant alleged that instead of laparoscopic surgery, as promised, the OP carried out, open cholecystectomy, without explaining the consequences. Hence, on the grounds of medical negligence, the complainant filed a complaint against the OP, before the Maharashtra State Consumer Disputes Redressal Commission (for short the State Commission) claimed compensation of Rs.8,50,000/- with penal action.
2. The State Commission allowed the complaint and directed the OP to pay compensation of Rs.8,50,000/- to the complainant along with interest at the rate of 9% per annum from the date of filing of this complaint and also awarded cost of Rs.25,000/-.
3. Aggrieved by the impugned order of the State Commission, the OP, Dr. Sanjay Gadekar filed this first appeal.
4. We have heard the learned counsel for the parties. The counsel for complainant narrated the facts stated in the complaint, also produced medical literature. He vehemently argued that OP failed to take informed consent. Patient developed obstructive jaundice due to wrong operation, the Liver function tests (LFT) values were significantly increased after surgery, and therefore it was negligence on the part of OP.
5. The rival argument by the counsel for the appellant-OP, Mr. Anand Patwardhan is that he vehemently denied of having committee any negligence or deficiency on the part of the OP. He further submitted that as per medical text, in more than 85% of cases of cholecystectomy, such iatrogenic injuries are noticed during post-operative follow ups and that this fact was not considered by the State Commission. No expert opinion is produced by the complainant. As per standard medical protocol, prior to surgery, the OP explained in detail about surgery to the complainant and her husband in detail, thereafter both had signed the consent form. It was an informed consent. He brought our attention to the consent form in which para 2 clearly mentions "the doctor has fully explained to me the kind of procedure he will perform and has answered my questions about my condition and I understand those risks and I am willing to undergo the procedure. This I consent to by my own free act and will".
6. The Counsel further stated that, the patient was discharged in good condition on 9.3.2001. Patient approached him during follow up, by USG study, the complication was promptly diagnosed by the OP and accordingly, patient was advised to get admitted for corrective measures, but the complainant did not get herself admitted, in time. Counsel denied that, on 17.4.2001, patient was admitted in precarious condition at Dr. Srikhande Clinic at Mumbai. It was not an emergency as the operation was performed there, four days later.
7. We have requisitioned the record from the State Commission and perused the medical record. At the GMCH, by ultrasonographically (USG) it was confirmed that there were three small stones in gall bladder. It was diagnosed as 'cholelithiasis'. As laparoscopic surgery for removal of the stones was not available there, hence, the patient approached OP, who is a laparoscopic surgeon. The patient was admitted to the OP/hospital on 16.02.2001, operated on 17.1.2001 and was discharged on 9.3.2001. Proper follow up was advised. The consent form is printed one and it is signed by the complainant and her husband. It is pertinent to note that the complainant herself is an advocate and not an illiterate person, both have signed the consent form of their own volition.
8. The medical record clearly revealed that the patient's course during hospitalisation,(17.1.2001 to 9.3.2001) was uneventful, no signs of any complications. The operative notes from OP are reproduced as under:
"Under High Spinal anaesthesia, by Kocher's incision, abdomen opened. Gall bladder seen. There was dense adhesions with adnexa at calot's triangle. During attempt of separating adhesions, there was profuse bleeding. Aggressive haemostasis Achieved. Cystic duct and it's artery identified in obscure and distorted view of Callot's triangle. Cystic duct and artery ligated and transected. Retrograde cholecystectomy performed. CBD patency confirmed. Wound closed in layers achieving proper haemostasis keeping tube drain."
The patient was discharged on 9.3.2001.
9. It is pertinent to note that during follow-up, the patient visited the OP/hospital twice, on 13.3.2001 and 2.4.2001. Both the times, the USG was performed by Dr. Prakashe, which revealed 'extrahepatic biliary obstruction with dilatation of proximal biliary radicles, RT and LT. common hepatic ducts. Gall bladder is not seen.' The OP explained the patient and her husband about these complications and advised re-exploration for assessment of complication and correction. The patient was called for re-admission for corrective surgery. Patient was asked to get admitted for the same however, the complainant chose to go to other doctors, and finally travelled to Mumbai.
10. In our view, after advice of OP, on 3.4.2001, regarding the complications, the patient unnecessarily wasted 3 weeks time and not opted for corrective surgery from OP. After cholecystectomy, the extrahepatic obstruction is the known complication. The patient developed obstruction to the bile flow and subsequently developed deep jaundice (obstructive jaundice). The LFT values confirm obstructive jaundice. It is pertinent to note that, she was physically stable and took journey by ordinary class by train from Nagpur to Mumbai. Patient approached Dr. Srikhande Clinic at Mumbai, on 17.4.2001, it was also diagnosed as "iatrogenic bile duct injury". Accordingly, there, 'end to end' jejuno-jejunostomy surgery was performed.
11. In this context we place reliance upon few judgments of Hon'ble Supreme court. In Jacob Mathews Case (2005) 6 SCC 1 it was observed by Hon'ble Supreme Court as;
"When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions."
In Achutrao Haribhau Khodwa & Others v. State of Maharashtra & Others (1996) 2 SCC 634, the Hon'ble Supreme Court held that, "in the very nature of medical profession, skills differ from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor, so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable, if the course of action chosen by him was acceptable to the medical profession.
The Hon'ble Supreme Court in the case Kusum Sharma & Others Vs. Batra Hospital & Medical Research Centre & Others (2010) 3 SCC 480; the bench comprising Hon'ble Justices Dalveer Bhandari and H S Bedi while dismissing the complaint held that:
"Consumer Protection Act (CPA) should not be a "halter round the neck" of doctors to make them fearful and apprehensive of taking professional decisions at crucial moments to explore possibility of reviving patients hanging between life and death."
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It further observed as, "It is a matter of common knowledge that after some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish,"
25. In Hucks v. Cole & Anr. (1968) 118 New LJ 469, Lord Denning speaking for the court, observed as under:-
"a medical practitioner was not to be held liable, simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner, in his field."
12. Therefore, based on the facts and circumstances of the case, the allegation of medical negligence is not proved. The OP is qualified Surgeon. The post-operative complication was not due any negligence during surgery performed by doctor. Moreover, the patient did not follow the doctor's instructions for correction of postoperative complications. Not all medical injuries are the result of negligence. Keep in mind that complications are blameless events. In fact, most medical injuries are the result either of the inherent risk in the practice of medicine, or due to system errors.
13. Consequently, the first appeal is allowed and the impugned order dated 07.05.2015 by State Commission is set aside and the complaint stands dismissed. Parties to bear their own costs.
......................J J.M. MALIK PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER