State Consumer Disputes Redressal Commission
Ajay Kumar Sharma vs Max Super Speciality Hospital & Others on 18 July, 2023
Consumer Sh. Ajay Kumar Sharma 18.07.2023
Complaint
Vs.
No. 07 of 2018
Max Super Speciality Hospital and
Others
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND, DEHRADUN
Date of Institution: 22.02.2018
Date of final hearing: 07.06.2023
Date of Pronouncement: 18.07.2023
Consumer Complaint No. 07 / 2018
Sh. Ajay Kumar Sharma S/o Sh. Satya Prakash Sharma
Presently residing at Rameshwarampuram, Lane No. 3
Shyampur, Rishikesh, Dehradun
(Through: Sh. Ajar Rab, Advocate)
.....Complainant
VERSUS
1. Max Super Speciality Hospital
Malsi, Mussoriee Diversion Road, Dehradun, Uttarakhand
Through General Manager
2. Dr. Guru Prasad Painuli
Max Super Speciality Hospital
Malsi, Mussoriee Diversion Road, Dehradun, Uttarakhand
3. Max Health Care Institute Ltd.
Regd. Office: Max House 1, Dr. Jha Road Okhla, New Delhi
Through Manager
(Through: Mrs. Neha Dawar, Advocate)
.....Opposite Party Nos. 1, 2 & 3
Coram:
Ms. Kumkum Rani, Judicial Member II
Mr. B.S. Manral, Member
ORDER
(Per: Ms. Kumkum Rani, Judicial Member II):
1Consumer Sh. Ajay Kumar Sharma 18.07.2023 Complaint Vs. No. 07 of 2018 Max Super Speciality Hospital and Others This complaint has been filed on behalf of the complainant Sh. Ajay Kumar Sharma against M/s Super Speciality Hospital, Malsi, Mussoriee Diversion Road, Dehradun and Others wherein and whereby the complainant has sought compensation to the tune of Rs. 40 Lacs for mental, physical agony and financial loss and torture occurred due to medical negligence on the part of the opposite parties alongwith interest @ 12% per annum from 05.08.2016.
2. The facts giving rise to the present complaint are as such that prior to present complaint, the complainant has also filed a complaint, which was withdrawn on account of his third surgery conducted by the doctors. The complainant was suffering from pain in the abdomen (stomach) for which he went to S.P.S. Hospital, Rishikesh on 17.07.2016. An ultrasound was conducted to diagnose the disease on 18.07.2016 in Rishikesh and the complainant came to know that he was having stone in the Gall Bladder (Cholelithiasis with Choleleystitis). Thereafter, the complainant came for better treatment to Max Super Speciality Hospital, Dehradun on dated 02.08.2016 where the doctors made thorough medical check-up to know his disease and advised him surgery to remove Gall Bladder. On dated 03.08.2016 a surgery (Laparoscopic Cholecystectomy) was conducted in Hospital of opposite party No. 1 by the opposite party No. 2 and after the above surgery, the complainant was discharged from the hospital on dated 05.08.2016 and the complainant was told that the surgery was successful. According to discharge summary, the Gall Bladder was removed from his body and was sent for further examination (HPE). On dated 06.08.2016, there was acute pain in the abdomen of the complainant and there was leakage of some dirty water from the wound occurred due to the above surgery, then the complainant went to the Hospital of opposite party No. 1 where he was again admitted and the treatment was started. Several examinations and medical tests were conducted and he was told that the 2 Consumer Sh. Ajay Kumar Sharma 18.07.2023 Complaint Vs. No. 07 of 2018 Max Super Speciality Hospital and Others pain is due to the surgery and after sometime it will be cured. As per C.T. Upper Abdomen report dated 08.08.2016 and C.T. Lower Abdomen report dated 10.08.2016, this fact was confirmed that there was some free fluid in the abdomen of the complainant. On interrogation from the doctors by the complainant, no satisfactory answer was given as to how the fluid has collected in the abdomen of the complainant. The doctor has told that after a gap of sometime he will have no pain and the problem will automatically disappear. On dated 10.08.2016, the complainant was again discharged from the Hospital (opposite party No. 1) and he was assured that in future he will have to face no such problem. On dated 12.08.2016 for cutting the stitches, the complainant came to the Max Super Speciality Hospital and he has again told to the doctor about pain in his abdomen and about the leakage of dirty water from the wound after surgery, then the complainant was again told that after sometime this problem will automatically disappear. The complainant went to his hometown Firozabad, but there was no relief in his abdomen pain, then he went to Ram Raghu Hospital, Agra on dated 15.08.2016 for his treatment, where after examination, the doctor of Ram Raghu Hospital, Agra has told him that there is collection of some fluid in his abdomen and he has to be admitted for further surgery of Laparotomy and the collected fluid will be separated from his abdomen and there is no alternate except to surgery. Thereupon the complainant got admitted on dated 16.08.2016 and after surgery, the fluid 1.5 litre to 2 litre was found in his abdomen, which was removed from his abdomen and thereafter the pain of abdomen has disappeared and he was discharged on dated 22.08.2016 from Ram Raghu Hospital, Agra. On dated 31.10.2016, the complainant has again gone to follow-up at Axis Imaging Centre, Agra, where he knew that the Gall Bladder was not removed from his body and there is also stone in his Gall Bladder (Cholelithiasis with Choleleystitis). He was surprised that sometime ago, a surgery was conducted for removing his Gall Bladder from his body by Max Super Speciality Hospital, 3 Consumer Sh. Ajay Kumar Sharma 18.07.2023 Complaint Vs. No. 07 of 2018 Max Super Speciality Hospital and Others Dehradun, and now why the stone appeared in his Gall Bladder (Cholelithiasis with Choleleystitis). All these circumstances have shown that there was negligence on the part of the opposite party Nos. 1 & 2. Had the said negligence not come to the knowledge of the complainant, then he would have deprived of his life. By the said act of the medical negligence of the opposite parties, the complainant and his family members had to suffer mental, physical and financial loss in various treatments, therefore, the complainant sent a legal notice dated 22.11.2016 to the opposite parties and also forwarded a letter to the Medical Council of India for the above medical negligence on the part of the doctors and Hospital, then the Medical Council of India has forwarded the matter to the Uttarakhand Medical Council for appropriate action, thereafter the Uttarakhand Medical Council has constituted the Ethical Committee and he was called on 28.05.2017 before General Director, Medical Health and Family Welfare, Danda Lakhond, P.O. Gujrada, Dehradun, where he appeared and submitted his case and the Ethical Committee came to the conclusion that the complainant again got medical check-up, ultrasound and MRI (Whole Abdomen) and would submit the same before the aforesaid Committee. Thereupon on dated 29.05.2017, the complainant has produced himself for MRI examination before the MRI Centre, Doon Medical College and on dated 01.06.2017 an ultrasound of the complainant was also conducted. As per the MRI and ultrasound report, the stone was shown in the Gall Bladder of the complainant. The complainant submitted his ultrasound and MRI report alongwith letter before Uttarakhand Medical Council on dated 09.06.2017 and has sought permission for surgery, but no reply was given. As the complainant was suffering from pain in the abdomen and no appropriate reply was given by the Uttarakhand Medical Council, therefore, the complainant has gone to Bhatia Global Hospital and Endo-surgery Institute, New Delhi for his treatment on dated 02.11.2017 where several medical examinations were conducted and it was revealed that there is 4 Consumer Sh. Ajay Kumar Sharma 18.07.2023 Complaint Vs. No. 07 of 2018 Max Super Speciality Hospital and Others Cholelithiasis and for removing the same, the Redo Laparoscopic Cholecystectomy had to be conducted and by applying the said surgery, the Gall Bladder shall be removed. Accordingly, on dated 02.11.2017, the said surgery was conducted and he was discharged on 04.11.2017. The discharge summary report is also submitted with the complaint. Thus, the mental and physical agony has occurred to the complainant due to the medical negligence on the part of the opposite parties. Had the surgery was conducted appropriately by the opposite parties, then the complainant would not have suffered such mental and physical pain and also financial loss. In such circumstances, the complainant has filed his complaint before this Commission.
3. In the written statement, the opposite party Nos. 1 to 3 have stated that the opposite party No. 1 is super speciality hospital located at Mussoriee Diversion Road, Malsi, Dehradun, Uttarakhand owned and managed by opposite party No. 3. The opposite party No. 2 is a well- known, qualified and experienced General and Laparoscopic Surgeon having a qualification of MS, FICS and FAMS and is the principal Consultant (General and Laparoscopic Surgery) at Max Super Speciality Hospital, Dehradun (opposite party No. 1). The doctors and the treating medicos at opposite party Nos. 1 & 3 including the team of doctors who attended the patient in this case are highly qualified and immensely experiences in their respective fields. In the present complaint, the opposite party No. 2 has counselled and performed his duty bonafidely and diligently and to the best of his ability and judgment. The complaint filed by the complainant is frivolous, perverse, malafide, based on misconceived presumption and as such is liable to be dismissed. The complaint is based on undocumented, hearsay and layman's advice. No document whatsoever has been placed on record by the complainant to show that its instant complaint is based upon valid medical grounds; the complaint is not 5 Consumer Sh. Ajay Kumar Sharma 18.07.2023 Complaint Vs. No. 07 of 2018 Max Super Speciality Hospital and Others maintainable against the opposite parties as no cause of action to file the present complaint has arisen against the opposite parties. It is true that the complainant was admitted at the hospital of opposite party No. 1 on dated 02.08.2016 and he was initially seen in OPD and clinical diagnosis was established as Cholecystitis with Cholelithiasis and the complainant was advised for admission and further investigations and pre-anesthesia checkup to undergo Laparoscopic Cholecystectomy. It is true that after carrying out the investigation, pre-anesthesia checkup and after taking informed consent from the patient, Laparoscopic Cholecystectomy was carried out on dated 03.08.2016. It is true that on a perusal of the medical record, it is clear that the Gall Bladder of the complainant was removed through Laparoscopic Cholecystectomy on dated 03.08.2016, but the complainant after losing follow-up with the opposite parties, alleged to have operated on 16.08.2016 at Ram Raghu Hospital, Agra and it is worth noting that operation notes of the Ram Raghu Hospital do not mention the present of Gall Bladder. The USG whole abdomen test report dated 01.06.2017 conducted by the Government Doon Medical College, Dehradun on referral by the Uttarakhand Medical Council, is also doubtful as the conclusion / impression noted and typed as "Normal study" has been struck out and hand written as "choletithiasis with cholecystitis". The MRCP report dated 02.11.2017 of Bhatia Globe Hospital & Endosurgery Institute, New Delhi also had clearly reported its impression as "Choltithiasis. Focal constriction and focal hypointensity with susceptibility artifacts in the distal gallbladder body region - likely post- surgical changes in the surgical clips." Furthermore, as per the discharge summary of the complainant from Bhatia Globe Hospital and Endosurgery Institute, New Delhi dated 04.11.2017, the finding of the Redo Laproscopic Cholecytectomy (02.11.2017) is mentioned as ....."Ramnant Gall Bladder seen with clip at the End". It is submitted that had the Gall Bladder of the complainant was not removed by the opposite party No. 2 on 03.08.2016, 6 Consumer Sh. Ajay Kumar Sharma 18.07.2023 Complaint Vs. No. 07 of 2018 Max Super Speciality Hospital and Others the Remnant Gall Bladder with the clip at the end could not have been found by the surgeon while performing the Redo Laproscopic Cholecystectomy after more than one year of the Laproscopic Cholecystectomy. As per Review Article in Journal of Minimal Access Surgery, 2015 Vol. 11, Issue 4, Pages 223-230 in Residual gallbladder stones after cholecystectomy, it is reported that Laparoscopic Cholecystectomy is now the gold standard for treatment of symptomatic gallstones. In some patients however the symptoms may persist even after surgery. These includes upper abdominal pain, dyspepsia with or without jaundice. It is further submitted that the complainant has failed to provide any expert opinion to establish negligence on the part of the opposite party and the doctors of the opposite party has performed as per the stipulated standard practice and there has been no negligence on the part of the opposite parties at any stage. It is also stated that the complainant came to the opposite party No. 1 on dated 13.08.2016 and the stitches were removed and no assurance or guarantee is possible in medical science nor any assurance or guarantee was ever given to the complainant; No representation was ever made by any of the opposite parties and there was no occasion for the complainant to believe on the alleged representation. It is further alleged that there is no even an iota of evidence to substantiate claim for such inflated claim for compensation and damages and the contents of the prayer clause are misconceived and vehemently denied. Therefore, the complaint of the complainant is liable to be dismissed.
4. The Replica has been submitted on behalf of the complainant alongwith annexures. In the replication, it has been submitted that it is wrong to say that the complaint is based on undocumented, hearsay and layman's advice. Furthermore, Annexure-5, Annexure-6 and Annexure-11 (page No. 71, 73) and Annexure-12 have clearly revealed the presence of a distended gall bladder even though the opposite party No. 2 had allegedly 7 Consumer Sh. Ajay Kumar Sharma 18.07.2023 Complaint Vs. No. 07 of 2018 Max Super Speciality Hospital and Others completely removed the gall bladder of the complainant. The above documents categorically fall within the domain of res ipsa loquitor which has been categorically recognized by the Hon'ble Supreme Court of India in the case of V. Kishan Rao Vs. Nikhil Super Speciality Hospital (2010) 5 SCC 213. Hence, there is no material on record to show that the complaint is based on primarily valid medical grounds is prima facie false and misleading. It is further pleaded in the replica that the opposite parties have not made any averment to show that the opposite party No. 2 was not derelict and that he did not breach any duty of care. The opposite parties have not produced any document to show that the complainant was either advised that the surgery was a difficult one or that the surgery could not be performed completely or that the gall bladder has not been entirely removed. Infact a bare perusal of Anneuxre-2 at page 20 of the complaint clearly states that "Gall Bladder was separated from liver bed and extracted out......Histpathology: Gall Bladder Sent for HPE."
The discharge report signed by the opposite party No. 2 makes no mention of a remnant gall bladder or the possibility of pain on account of remnant gall bladder in the discharge advice. Infact a bare reading of the report by any innocent consumer or patient would lead any reasonable man, including a medical practitioner to assume that the entire gall bladder of the complainant was removed and sent for HPE as the discharge summary nowhere mentions that the entire gall bladder could not be removed. It is further submitted that the contentions contained in the written statement clearly reveal that the opposite party No. 2 was well aware that the gall bladder was hidden under adhesions and yet he chose not to advise the complainant about the possibility of there being a remnant gall bladder, therefore, the negligence of the opposite parties is proved by their own admission. It is further submitted that no informed consent form has never been filed by the opposite parties, therefore, the complainant is not a position to reply the same and the opposite parties are put to strict proof 8 Consumer Sh. Ajay Kumar Sharma 18.07.2023 Complaint Vs. No. 07 of 2018 Max Super Speciality Hospital and Others thereof. Therefore, the contentions of the written statement are denied, hence the complaint is liable to be allowed.
5. The complainant has filed certain documents / papers, i.e. copy of ultrasound report dated 18.07.2016, copy of discharge summary issued by Max Hospital alongwith copies of all the examination reports, copy of report dated 08.08.2016 and report of C.T. Lower abdomen dated 10.08.2016, discharge summary dated 10.08.2016 issued by Max Hospital copy of discharge summary issued by Ram Raghu Hospital, copy of ultrasound report dated 31.10.2016, copy of letter dated 17.04.2017 sent to Indian Medical Council, copy of letter No. MCI-211(2)(Gen.)/2017- Ehtics/106606 dated 27.04.2017, copy of letter of Uttarakhand Medical Council No. U.M.C./2016-17/1769 dated 08.05.2017, copy of conclusion report of Uttarakhand Medical Council dated 28.05.2017, copy of letter dated 09.06.2017 and copy of all the ultrasound reports and M.R.I. report and copy of discharge summary issued by Bhatia Global Hospital & Endosurgery Institute, New Delhi alongwith all the reports.
6. We have heard learned counsel for both the parties and perused the record.
7. It is an admitted fact that the complainant was admitted at the opposite party No. 1 - Hospital on dated 02.08.2016 with the complaints of abdominal pain having stone inside it. It is also not disputed that the complainant was initially seen in OPD and clinical diagnosis was established as Cholecystitis with Cholelithiasis and the complainant was advised for admission and further investigations and pre-anesthesia checkup to undergo Laparoscopic Cholecystectomy. It is also not disputed that after taking consent from the complainant, Laparoscopic Cholecystectomy (Procedure) was carried out on dated 03.08.2016 and 9 Consumer Sh. Ajay Kumar Sharma 18.07.2023 Complaint Vs. No. 07 of 2018 Max Super Speciality Hospital and Others according to the operation theatre notes from the patient records, it may be noted down under the heading of "Finding: Dense adhesions between Gall Bladder, duodenum and liver gall bladder has concretions in its lumen."
8. According to the pleadings of para No. 7(d) of the written statement, the doctors of the opposite party No. 1 - Hospital removed the Gall Bladder and it was sent for histopathological examination (HPE) on dated 03.08.2016 and the hospital received its report on dated 06.08.2016 and the specimen type take for HPE is shown as Gall Bladder. HPE report is not filed on record to show whether complete gall bladder was removed or some part of the gall bladder was removed. It is also admitted by the opposite parties that on dated 06.08.2016, the complainant came to the OPD with complaints of severe pain in abdomen after initial assessment, the complainant was advised for admission for further management. Accordingly, the complainant was admitted to the opposite party No. 1 - Hospital on dated 06.08.2016. Requisite investigations and diagnostics were done to evaluate the complainant's medical condition and a C.T. Abdomen was carried out on 07.08.2016 which reported a minimal amount of fluid to be found in the abdomen, the complainant reported pain in abdomen in the night and a request was made to MICU consultant. The complainant was advised for Potassium replacement and Tramadol and also to carry out CT Abdomen with contrast. The CT Contrast was done on 08.08.2016 as per record and the CT Contract showed normal imaging, Minimal Fluid collection in Pelvis and there was no leak of contrast and only minimal fluid in Para Colic Region. It is alleged by the opposite parties that on dated 10.08.2016, the complainant apprised that he was fully relieved of pain and feeling well and requested for discharge and at the time of discharge, the complainant's general condition was fair and wounds were healing well. It is also an admitted fact that the complainant got his stitches removed on dated 13.08.2016. It is contended on behalf of the 10 Consumer Sh. Ajay Kumar Sharma 18.07.2023 Complaint Vs. No. 07 of 2018 Max Super Speciality Hospital and Others opposite parties that on a perusal of the medical records, it is clear that the Gall Bladder of the complainant was removed through laparoscopic cholecystectomy on 03.08.2016 and as per the complaint case it was alleged by the complainant to have operated on 16.08.2016 at Ram Raghu Hospital, Agra. It is contended by the opposite parties that operation notes of the Ram Raghu Hospital do not mention the presence of gall bladder and as per the USG whole abdomen test report dated 01.06.2017 conducted by the Government Doon Medical College, Dehradun on referral by the Uttarakhand Medical Council, it is doubtful as the conclusion / impression noted and typed as "Normal Study" has been struck out and hand-written as "Choletithiasis with Cholecystitis". It is also contended on behalf of the opposite parties that the complainant has failed to provide any expert opinion to establish negligence on the part of the opposite parties, hence the complaint of the complainant is liable to be dismissed.
9. Learned counsel for the complainant has averred that when the complainant has suffered from acute pain in abdomen and he went to the opposite party No. 1 - Hospital, but the due diligence was not taken while conducting the treatment of the complainant and the essentials of medical negligence committed by the opposite parties have been sufficiently demonstrated by the complainant (replica and the evidence filed by the complainant), thus the complainant has duly discharged his duty of establishing the fact that the opposite parties have neither exercised a reasonable degree of care, nor exercised due care, skill and diligence while treating the complainant. It is further submitted that when the negligence is evident, the principle of res ipsa loquitur operates and it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence. It is also stated by the complainant that the complainant made a complaint to the Indian Medical Council and his 11 Consumer Sh. Ajay Kumar Sharma 18.07.2023 Complaint Vs. No. 07 of 2018 Max Super Speciality Hospital and Others complaint was further referred to the Uttarakhand Medical Council for investigation.
10. Learned counsel for the complainant has stated that when there was no relief in his pain in abdomen even the admission in the hospital of opposite party No. 1 the complainant went to the Ram Raghu Hospital, Agra wherein he was told that there is a collection of fluid in his abdomen, therefore, a surgery has to be conducted to remove the same. It is an admitted fact that on dated 16.08.2016, the complaint got operated and fluid (1.5 litre to 2 litre) was removed from his abdomen and he was discharged from Ram Raghu Hospital on dated 22.08.2016. As per the complaint and admission in the pleadings, it is proved that the complainant went for follow up / medical check-up on dated 31.10.2016 in Access Imaging Centre, Agra, wherein it was informed that his gall bladder was not removed and there are still existence of stone in his gall bladder (Cholelithiasis with Choleleystitis). Then the complainant was surprised; he made a complaint before the All India Medical Council and from where the matter was referred to the Uttarakhand Medical Council on dated 27.04.2017, but it was told to the complainant that the complaint had to get examined his abdomen and to get Ultrasound and MRI report of whole abdomen and which had to be submitted in the next meeting of the Ethical Committee; It is proved that the complainant was examined on dated 29.05.2017 for MRI in MRI centre Doon Medical College and on dated 01.06.2017 for Ultrasound in Doon Hospital, Dehradun and the complainant got the reports wherein it was clearly shown that there are some stone in gall bladder (Cholelithiasis with Choleleystitis). The complainant has sent the said reports (MRI report and Ultrasound report) to the Uttarakhand Medical Council, but no reply was ever given to the complainant. The complainant was suffering from acute pain and no reply was given from the Uttarakhand Medical Council, then the complainant went to the Bhatia Global Hospital 12 Consumer Sh. Ajay Kumar Sharma 18.07.2023 Complaint Vs. No. 07 of 2018 Max Super Speciality Hospital and Others and Endosurgery Institute, New Delhi on dated 02.11.2017, where the several examinations were conducted from where it was clearly reported that he has a Cholelithiasis from Cholelithiasis with Choleleystitis and he has to be undergone Redo Laparoscopic Cholecystectomy surgery. The complainant was admitted on dated 02.11.2017 for Redo-Laparoscopic Cholecystectomy surgery and from where he was discharged on dated 04.11.2017. As per the discharge report, the stone and the gall bladder were removed from the abdomen of the complainant.
11. We have perused all the documents available on record.
12. It is also admitted by both the parties that the opposite party No. 1 - Hospital carried out the operation on dated 03.08.2016 and the gall bladder was removed and the complainant was discharged on dated 05.08.2016 from the hospital of opposite party No. 1. It is also not disputed that the complainant again came in the hospital of opposite party No. 1 alleging that the complaints of severe pain in the abdomen and on the advice for admission by the hospital for further medical examination, the complainant was again admitted in the hospital on 06.08.2016, where CT abdomen was carried out on dated 07.08.2016 and as per the report of the CT abdomen, the minimal amount of fluid was found in the abdomen. There are some documentary evidence in this regard available on the record, which are filed by the complainant.
13. Paper No. 134 "Case Summary" issued by the Max Health Care regarding the complainant, according to which the surgery was conducted and the name of the surgery done shown as Laparoscopic Cholecystectomy on 03.08.2016. As per paper No. 135 of the Max Health Care, the patient / complainant attended OPD in afternoon with c/o severe pain in abdomen on dated 06.08.2016 and he had under gone Laparoscopic Cholecystectomy on 03.08.2016; was discharged on dated 05.08.2016 and the complainant 13 Consumer Sh. Ajay Kumar Sharma 18.07.2023 Complaint Vs. No. 07 of 2018 Max Super Speciality Hospital and Others was advised for CT Abdomen; the CT Abdomen was done on dated 07.08.2016 that showed minimal amount of fluid and it was explained to the patient / complainant and his care givers that if patient develops further pain then CT Abdomen will be repeated with oral contrast as suggested by the Radiologist. The patient / complainant had pain in abdomen in the night and a request was made to MICU consultant to examine the patient and Dr. Vinay Kumar examined him and wrote for potassium replacement and tramadol and following advice was given as patient required further investigations and consults.
14. As per paper No. 135, the CT Abdomen was done on dated 07.08.2016 and the films show normal imaging, (after making the patient walk for 10 minutes) no leak of contrast and only minimal fluid in para colic region.
15. The main question for consideration before us is whether the Gall Bladder was fully removed by the opposite party No. 2 in the hospital of opposite party No. 1.
16. Learned counsel for the opposite parties has averred that the opposite parties have submitted the research work. According to General of Minimal Access Surgery and under heading of "Role of cystic duct stump and re-intervention by Laparoscopic Surgery". It is provided that "Laparoscopic cholecystectomy is the most common surgery performed for symptomatic gallstones. However, even after surgery, symptoms may persist in some patients. Various causes for such post- cholecystectomy syndrome have been noted. We report our experience of seven such patients with post-cholecystectomy syndrome where on investigations, presence of stone in the biliary tree could be confirmed alongwith remnant gall-bladder. All these patients underwent completion cholecystectomy with removal of the stones by laparoscopic 14 Consumer Sh. Ajay Kumar Sharma 18.07.2023 Complaint Vs. No. 07 of 2018 Max Super Speciality Hospital and Others surgery and had good post-operative result. The patients were followed-up from three months to one year and all were asymptomatic till their last follow-up.
17. It is further averred that as per (Review Article in Journal of Minimal Access Surgery, 2015 Vol. 11, Issue 4 Pages 223-230) in Residual gallbladder stones after cholecystectomy: A literature review by Pradeep Chowbey, Anil Sharma, Amit Goswami, Yusuf Afaque, Khoobsurat Najma, Manish Baijal, Vandana Soni, Rajesh Khullar, Max Institute of Minimal Access, Metabolic and Bariatric Surgery, Max Superspeciality Hospital, Saket, New Delhi, it is reported that Laparoscopic cholecystectomy is now the gold standard for treatment of symptomatic gallstones. In some patients however the symptoms may persist even after surgery. These include upper abdominal pain, dyspepsia with or without jaundice. A small percentage of patients with post-cholecystecomy syndrome are symptomatic due to a residual stone in a particularly long cystic duct or to the relapse of lithiasis in a gallbladder remnant. Incidence of incomplete gallbladder removal following conventional cholecystectomy appears very low. In the laparoscopic era, incidence of unintentional incomplete gallbladder removal has not been reported clearly though it seems to be slightly more than the ones reported with open cholecystectomy. Incomplete resection of gallbladder occurs in up to 13.3% of laparoscopic cholecystectomies. Reasons for incomplete resection include poor visualization of gallbladder fossa during surgery, adhesions, concurrent inflammation, excessive bleeding, or confounding gallbladder morphology such as a congenital duplication or an hour glass configuration due to adenomyomatosis.
18. It is also contended on behalf of the opposite parties that during first Laparoscopic cholecystectomy, it was noted that there were dense adhesion 15 Consumer Sh. Ajay Kumar Sharma 18.07.2023 Complaint Vs. No. 07 of 2018 Max Super Speciality Hospital and Others in the operating field - sub hepatic region, gall bladder and duodenum. Gall bladder was hidden due to adhesion. All adhesion were lysed with use of sharp scissors and cautery. Callot's triangle was defined. Cystic duct was identified, clipped and divided first. Cystic artery was next identified, clipped and divided. Gall Bladder was separated from liver Bed and extracted out. The removal of the Gall Bladder was done to the best possible that it could have done, as it was hidden under adhesions and resection due to poor visualization of gall bladder fossa during surgery.
19. Thus, as per the pleadings of the written statement and evidence of the opposite parties and also as per the contentions of the opposite parties, it is clear that the Gall Bladder was hidden due to adhesion in the stomach of the complainant, but some part of the Gall Bladder remained inside the body of the complainant. Thus, it is proved that the Gall Bladder was not completely removed from the abdomen of the complainant. We have also perused the discharge report (paper Nos. 37 & 38), wherein it is not mentioned that some part of the Gall Bladder has left due to adhesion, whereas the evidence submitted on behalf of the complainant paper No. 157 of the Bhatia Global Hospital & Endosurgery Institute has revealed that during the surgery by the doctors of Bhatia Global Hospital & Endosurgery Institute, Dr. Parveen Bhatia and Dr. Indu Bhatia have seen Gall Bladder with stones inside the abdomen of the patient / complainant and the Gall Bladder was cut and Cystic Duct Stump was tied with Endoloop and the Gall Bladder was removed with stones. Paper No. 151 of the record (dated 02.11.2017) has also transpired that the complainant was admitted in the hospital on dated 02.11.2017 and was discharged on dated 04.11.2017. According to the discharge summary, Cholelithiasis was diagnosed by the team of the hospital and Redo Laparoscopic Cholecystectomy was done under General Anesthesia and as per doctors finding there was dense colonic and omental adhesions to anterior abdominal wall, remnant 16 Consumer Sh. Ajay Kumar Sharma 18.07.2023 Complaint Vs. No. 07 of 2018 Max Super Speciality Hospital and Others gall bladder seen with clip at the end, thick walled Gall Bladder with multiple stones.
20. The learned counsel for the opposite parties has relied on the following cites case law:-
1. Bolam Vs. Friern Hospital Management Committee reported as (1957) 1 WLR 582
2. Jacob Mathew Vs. State of Punjab and Ors. reported as AIR 2005 SC 3180
3. Kusum Sharma and Ors. Vs. Batra Hospital and Medical Research Centre and Ors. reported as AIR 2010 SC 1050
4. S. K. Jhunjhunwala Vs. Dhanwanti Kaur and Ors. reported as AIR 2018 SC 4625
5. Dr. Sanjay Gadekar Vs. Sangamitra @ Sandhya Khobragade decided by Hon'ble National Consumer Disputes Redressal Commission on 20.05.2016 and argued that there is no cogent / credible evidence and adequate evidence to prove that the fluid collected in the abdomen of the complainant due to the negligence on the part of the opposite party No. 2 in conducting the Laparoscopic Cholecystectomy on dated 03.08.2016 and he had to undergo Laparoscopic drainage on account of any negligence on the part of the opposite parties. It is also contended by the opposite parties that the complainant has failed to place any expert report / opinion to establish that fluid collected in the abdomen of the complainant and remnant gall bladder 17 Consumer Sh. Ajay Kumar Sharma 18.07.2023 Complaint Vs. No. 07 of 2018 Max Super Speciality Hospital and Others with stones was left due to any negligence on the part of the opposite parties in conducting the operation and or treating the complainant at the opposite party No. 1 Hospital.
21. The rival contention has been submitted by the counsel for the complainant by relying the following case law:-
1. M/s Chahal Hospital Vs. Jaspreet Singh & Ors., First Appeal No. 16 of 2016, SCDRC Punjab, dated 13.01.2017
2. V. Kishan Rao Vs. Nikhil Super Speciality Hospital and Another, (2010) 5 Supreme Court Cases 213: 2010 SCC online S.C. 237
3. Post Graduate Institute of Medical Education and Research v. Jaspal Singh (2009) 7 SCC 330
4. Scott v. London & St. Katherine Docks Co. (1865) 3 H&C 596 and argued that the Hon'ble Courts and Commission have held in the above mentioned cases that in cases of gross medical negligence, the principle of res ipsa loquitor can be applied, so in the case in hand there was no need to call expert report because various medical records have transpired that the opposite party and team of doctors were negligent in conducting the operation and treating the complainant at the opposite party No. 1 Hospital.18
Consumer Sh. Ajay Kumar Sharma 18.07.2023 Complaint Vs. No. 07 of 2018 Max Super Speciality Hospital and Others
22. We have perused the above cited case laws. In the case of M/s Chahal Hospital (supra) the Hon'ble State Commission, Punjab has held that-
"Para 13 ......In case due to any difficulty in the procedure, complete gall bladder was not removed then its note should have been given by Op No. 1 in its discharge slip (Ex. C-4) but no such note was given, rather, it has been mentioned that laparoscopic cholecystectomy was uneventful and satisfactory, which was actually not because complete gall bladder was not removed and complete gall stones were not removed for which the complainant had to go for 2nd surgery in PGI. In case complete surgery would have been done by Op No. 1 then there was no need for the complainant to go for 2nd surgery. Further Op No. 1 after the surgery did not opt for 2nd ultrasound report to check whether all the stones in the gall bladder or gall bladder was removed. No such report was taken by Op No. 1 before discharge of the complainant from the hospital. Therefore, post operative care was not upto the mark.
Para 14 Another point was raised that there is no expert report. When we have ultrasound report from Romana Ultrasound Echo and 19 Consumer Sh. Ajay Kumar Sharma 18.07.2023 Complaint Vs. No. 07 of 2018 Max Super Speciality Hospital and Others Colour Doppler Centre, Bathinda and CEMRI and MRCP report of the PGI is there as referred above, which makes it clear that complete gall bladder and stones were not removed whereas as per the version of the Op, operation was uneventful and satisfactory, therefore, the reports referred above make it clear that it was not uneventful and satisfactory because complete gall bladder and stones were not removed. Therefore, in case we have already on the record CEMRI and MRCP report and ultrasound report on the record then no further expert report is required to check it whether the surgery conducted by Op No. 1 is upto the mark or post-operative care was as per the required medical protocol . Then Op No. 1 has tried to conceal the facts. In case there was some problem in the surgery, the same should have been reflected in the discharge card but for the reasons best known to the Doctor, no such report was made in the discharge summary, therefore, concealment of real facts also amounts to deficiency in service on the part of Op No.1. All these facts were properly appreciated by the District Forum and we are of the opinion that the plea taken by the counsel for the Op is not correct. There is no doubt about the complication of the procedure but we are of the opinion that 20 Consumer Sh. Ajay Kumar Sharma 18.07.2023 Complaint Vs. No. 07 of 2018 Max Super Speciality Hospital and Others true picture was not been brought by Op No.
1. In case they charged full fee from the complainant they did not give correct report to the complainant. Complete gall bladder and stones were not removed and its note was not given in the discharge summary. Complainant again experienced pain in the abdomen in the month of October, 2013, again reported to Op No. 1, who referred for ultrasound report from Romana Ultrasound Echo and Colour Doppler Centre, Bathinda, which gave a report of remnant gall stone and further the report of the PGI reported remnant gall bladder and stones for which the complainant had to go for 2nd surgery. Therefore, surgery as well as post-operative care is not correct, rather, Op No. 1 has concealed the material facts with regard to the treatment from the complainant i.e. non- removal of complete gall bladder and stones, which amounted to medical negligence and deficiency in service. The judgment referred by counsel for Op No. 1 is not applicable to the facts of the case. Therefore, we agree with the findings recorded by the District Forum and those, are hereby affirmed."
23. In the case of V. Krishna Rao (supra), the Hon'ble Supreme Court has held as under:-
21Consumer Sh. Ajay Kumar Sharma 18.07.2023 Complaint Vs. No. 07 of 2018 Max Super Speciality Hospital and Others "Para No. 45 It is clear from the Statement of Objects and Reasons of the Act that it is to provide a forum for speedy and simple redressal of consumer disputes. Such avowed legislative purpose cannot be either defeated or diluted by superimposing a requirement of having expert evidence in all cases of medical negligence regardless of factual requirement of the case. If that is done the efficacy of remedy under the Act will be substantially curtailed and in many cases the remedy will become illusory to the common man.
In Spring Meadows (1998) 4 SCC 39) (supra) this Court was dealing with the case of medical negligence and held that in cases of gross medical negligence the principle of res ipsa loquitur can be applied. In para 10, this Court gave certain illustrations on medical negligence where the principle of res ipsa loquitur can be applied.Para No. 47
In Postgraduate Institute of Medial Education and Research, Chandigarh v. Jaspal Singh and others, (2009) 7 SCC 330 : (2009) 3 SCC (Cri) 399) also the Court held that mismatch in transfusion of blood resulting in death of the patient, after 40 days, 22 Consumer Sh. Ajay Kumar Sharma 18.07.2023 Complaint Vs. No. 07 of 2018 Max Super Speciality Hospital and Others is a case of medical negligence. Though the learned Judges have not used the expression res ipsa loquitur but a case of mismatch blood transfusion is one of the illustrations given in various textbooks on medical negligence to indicate the application of res ipsa loquitur.
In the treaties on Medical Negligence by Michael Jones, the learned author has explained the principle of res ipsa loquitur as essentially an evidential principle and the learned author opined that the said principle is intended to assist a claimant who, for no fault of his own, is unable to adduce evidence as to how the accident occurred. The principle has been explained in the case of Scott v. London & St. Katherine Docks Co.
[(1865) 3 H&C 596 : (1861-73) All ER Rep
246) by Erle, C.J. in the following manner:
(All ER p. 248 C-D)......where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.23
Consumer Sh. Ajay Kumar Sharma 18.07.2023 Complaint Vs. No. 07 of 2018 Max Super Speciality Hospital and Others Para No. 49 The learned author at p. 314, para 3-146 of the book, Medical Negligence gave illustrations where the principles of res ipsa loquitur have been made applicable in the case of medical negligence. All the illustrations which were given by the learned author were based on decided cases. The illustrations are set out below:
"Where a patient sustained a burn from a high frequency electrical current used for 'electric coagulation' of the blood (see Clarke v. Warboys [The Times, 18-3-1952 (CA)];
Where gangrene developed in the claimant's arm following an intramuscular injection (see Cavan v. Wilcox [(1973) 44 DLR 3d 42]);
When a patient underwent a radical mastoidectomy and suffered partial facial paralysis (see Eady v. Tenderenda [(1975) 2 SCR 599 : (1974) 51 DLR 3d 79 (Can SC)];
Where the defendant failed to diagnose a known complication of surgery on the patient's hand for Paget's disease [see Rietz 24 Consumer Sh. Ajay Kumar Sharma 18.07.2023 Complaint Vs. No. 07 of 2018 Max Super Speciality Hospital and Others v. Bruser (No. 2) [(1979) 1 WWR 31 (Man QB)] ];
Where there was a delay of 50 minutes in obtaining expert obstetric assistance at the birth of twins when the medical evidence was that at the most no more than 20 minutes should elapse between the birth of the first and the second twin (see Bull v. Devon Area Health Authority [(1993) 4 Med LR 117 (CA)], Med LR at p. 131);
Where, following an operation under general anaesthetic, a patient in the recovery ward sustained brain damage caused by bypoxia for a period of four to five minutes (see Coyne v. Wigan Health Authority [(1991) 2 Med LR 301 (QBD)] );
Where, following a routine appendisectomy under general anaesthetic, an otherwise fit and healthy girl suffered a fit and went into a permanent coma (see Lindsey v. Mid-Western Health Board [(1993) 2 IR 147], IR at p. 181);
When a needle broke in the patient's buttock while he was being given an injection (see Brazier v. Ministry of Defence (1965) 1 Lloyd Rep], Lloyd Rep at p. 30);
25Consumer Sh. Ajay Kumar Sharma 18.07.2023 Complaint Vs. No. 07 of 2018 Max Super Speciality Hospital and Others Where a spinal anaesthetic became contaminated with disinfectant as a result of the manner in which it was stored causing paralysis to the patient (see Roe v. Minister of Health [(1954) 2 QB 66 : (1954) 2 WLR 915 : (1954) 2 ALL ER 131 (CA)]. See also Brown v. Merton, Sutton and Wandsworth Area Health Authority (Teaching) [(1982) 1 All ER 650 (CA)] ];
Where an infection following surgery in a "well-staffed and modern hospital"
remained undiagnosed until the patient sustained crippling injury (see Hajgato v.
London Health Assn. [(1982) 36 OR 2d 669 (Ont Sup Ct)], OR at p. 682); and Where an explosion occurred during the course of administering anaesthetic to the patient when the technique had frequently been used without any mishap (Crits v.
Sylvester [(1956) 1 DLR 2d 502 (Ont CA)])."
Para No. 50In a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself. In such a case it is for the respondent to prove that he has 26 Consumer Sh. Ajay Kumar Sharma 18.07.2023 Complaint Vs. No. 07 of 2018 Max Super Speciality Hospital and Others taken care and done his duty to repel the charge of negligence."
24. The above cited case laws applicable to the case in hand.
25. As per the complaint, that after the surgery from Bhatia Global Hospital & Endosurgery Institute, his Gall Bladder with stone was completely removed. Thus, the entire record has shown that complete Gall Bladder was not removed from the abdomen in the Hospital of opposite party No. 1 by the team of doctors. When the Gall Bladder in adhesions position it was not completely removed, it was duty of the concerned doctor to mention the same fact in the discharge summary and its note should have been given by opposite party No. 1 & 2 in its discharge slip, but no such note was given by the opposite party No. 1 - Hospital, rather it has been mentioned that Laparoscopic Cholecystectomy was uneventful and general care fair, which was not actually such because complete gall bladder was not removed due to which the complainant has again complained of pain in his abdomen on dated 06.08.2016 and he was again admitted in opposite party No. 1 - Hospital on 06.08.2016; the complainant had to go for second surgery to remove the remnant gall bladder with stone. In our opinion complete gall bladder with stone was not removed and complete surgery would have not been done by the opposite party No. 2 (surgeon). Thus, post-operative care was not upto the mark. Thus, we are of the opinion that there was negligence on the part of the opposite parties in not giving such note that gall bladder was not completely removed.
26. Apart from it, it is also admitted by the opposite parties that the complainant approached to the Hospital on 06.08.2016, i.e. one day after his discharge on 05.08.2016 from the opposite party No. 1 - Hospital when he felt pain in his abdomen. Various medical papers (paper Nos. 39 to 47) 27 Consumer Sh. Ajay Kumar Sharma 18.07.2023 Complaint Vs. No. 07 of 2018 Max Super Speciality Hospital and Others have shown that he was again admitted in the hospital of opposite party No. 1 and several tests were conducted. It was also apparent by the medical check-up reports that there was some fluid / water inside the abdomen after the surgery. Hence, in such circumstances, it was the duty of the doctors to advise the complainant for MRCP or MRI of the abdomen to determine whether Gall Bladder with stone was completely removed or not. Thus, it appears that there was some mistake / negligence on the part of the doctor or doctors or team of doctors who conducted such surgery.
27. It is also contended by the opposite parties that the complainant has not submitted any expert report, therefore, in absence of the expert report on record it cannot be determined that there was some negligence on the part of the surgeon in conducting the said surgery of the complainant. The learned counsel for the complainant has stated that there is no need to call expert report to prove the case of complainant. We are of the same view that in the case in hand there is no need to file expert report to prove the complaint case by the complainant.
28. We have perused the record. MRI whole abdomen dated 29.05.2017 of MRI Centre Doon Medical College and discharge summary dated 04.11.2017 of Bhatia Global Hospital and Endosurgery Institute, MRCP of Imaging Centre dated 31.10.2016 (with Calculi) (Stone - Annexure 6) MRCP of Saral Diagnostics dated 02.11.2017 have shown / made it clear that complete gall bladder and stones were not removed whereas as per the version of the opposite parties, operation was successful and uneventful; the reports referred above make it clear that it was not satisfactory, successful and uneventful because complete gall bladder and stones were not removed. If MRI / MRCP reports are available on record, then no further expert report is required to check it whether the surgery conducted by the opposite party No. 2 is upto mark or post-operative care was as per 28 Consumer Sh. Ajay Kumar Sharma 18.07.2023 Complaint Vs. No. 07 of 2018 Max Super Speciality Hospital and Others the required medical protocol. Thus, it is proved that the opposite party Nos. 1 & 2 have concealed the facts. In case there was some problem in the surgery the same should be reflected in the discharge card, but for the reasons best known to the doctors, the same was not done.
29. We are of the definite opinion that concealment of real facts in the discharge summary also amounts to deficiency in service on the part of the opposite party No. 2 of the Hospital of opposite party No. 1. It is also proved that the surgery as well as post-operative care is not correct rather opposite party No. 2 concealed the material facts with regard to the treatment from the complainant, i.e. non-removal of complete gall bladder and stones which amounted to medical negligence and deficiency in service.
30. Thus, we are also of the opinion that due to the negligence of the opposite party No. 2, the complainant has to suffer mental and physical agony and has to be admitted in two hospitals, i.e. Ram Raghu Hospital, Agra and Bhatia Global Hospital for getting better treatment. He has to incur huge amount in his various surgeries and in various tests thereby he has suffered financial loss. Thus, we are of the opinion that the complainant is entitled to get compensation to the tune of Rs. 7 Lacs with interest and Rs. 10,000/- as costs of suit. We are of the view that the complaint is liable to be allowed.
31. Consumer complaint is hereby allowed. It is hereby ordered that the opposite parties shall pay Rs. 7 Lacs (Rs. Seven Lacs only) to the complainant alongwith Rs. 10,000/- as costs of suit within a period of 30 days. It is also directed to the opposite parties to pay simple interest @ 7% per annum on the awarded amount from the date of admission, i.e. 22.02.2018 till its actual realization.
29Consumer Sh. Ajay Kumar Sharma 18.07.2023 Complaint Vs. No. 07 of 2018 Max Super Speciality Hospital and Others
32. A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 /2019. The Order be uploaded forthwith on the website of the Commission for the perusal of the parties.
33. File be consigned to the record room along with a copy of this Order.
(Ms. Kumkum Rani) Judicial Member II (Mr. B.S. Manral) Member This judgment is dated, signed and pronounced today.
(Ms. Kumkum Rani) Judicial Member II (Mr. B.S. Manral) Member Pronounced on: 18.07.2023 30