State Consumer Disputes Redressal Commission
Dr. Surinder Goyal vs Surjit Singh on 1 December, 2014
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
(1) First Appeal No.1409 of 2010.
Date of Institution: 10.08.2010.
Date of Decision: 01.12.2014.
Dr. Surinder Goyal,C/o Sh. Shyam Hospital & Ultrasound Centre, near
Giani Zail Singh Market, Moga Road, Kotkapura, Punjab.
.....Appellant/Opposite Party No.1.
Versus
1. Surjit Singh S/o Buta Singh, R/o Chambela, Tehsil and District
Faridkot, Punjab.
....Respondent/complainant
2. Branch Manager, National Insurance Company, Kotkapura, Punjab.
....Respondent/Opposite party No.2
Present:-
For the appellant : Sh. Vaibhav Narang, Advocate.
For respondent No.1: Sh. H.S. Bedi, Advocate.
For respondent No.2: Sh. Munish Goel, Advocate.
AND
(2) First Appeal No.1806 of 2010.
Date of Institution: 18.10.2010
Date of Decision: 01.12.2014.
Surjit Singh S/o Buta Singh, R/o Chambela, Tehsil and District Faridkot.
.....Appellant/Complainant.
Versus
1. Dr. Surinder Goyal, Regd. No.EP 25870, C/o Sh. Shyam Hospital &
Ultrasound Centre, near Giani Zail Singh Market, Moga Road,
Kotkapura, Punjab.
2. Branch Manager, National Insurance Company, Kotkapura, insurer
of the degree/skill of opposite party no.1.
....Respondents/Opposite parties
First Appeal No.1409 of 2010 2
Present:-
For the appellant : Sh. H.S. Bedi, Advocate.
For respondent No.1: Sh. Vaibhav Narang, Advocate.
For respondent No.2: Sh. Munish Goel, Advocate.
First Appeals against order dated
07.06.2010 passed by the District
Consumer Disputes Redressal Forum,
Faridkot.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Shri Jasbir Singh Gill, Member.
.............................................. J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
This order will dispose of two connected appeals i.e. F.A. No.1409 of 2010 (Dr. Surinder Goyal Vs. Surjit Singh & Anr.), F.A. No.1806 of 2010 (Surjit Singh Vs. Dr. Surinder Goyal & Anr.) since both the appeals have arisen out of the same order dated 07.06.2010 passed by the District Consumer Disputes Redressal Forum, Faridkot (in short, "the District Forum") and, thus, they can be conveniently decided by means of this common order. The facts are taken from F.A. No.1409 of 2010 and the parties would be referred by their status in this appeal.
2. The brief facts of the case are that, Sh. Surjit Singh, complainant filed a complaint u/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the opposite parties, on the terse allegations, that opposite party no.1 carries on Shyam Hospital and Ultrasound Centre at Kotkapura, where the complainant was admitted for conducting operation of his gall bladder. The complainant is consumer of opposite party no.1, as he hired the services of opposite party no.1 for consideration for his treatment. The opposite party no.1 did not issue First Appeal No.1409 of 2010 3 receipt of Rs.50/- charged from the complainant for his treatment. The opposite party no.1 has issued a certificate, showing that the complainant remained admitted in Shyam Hospital, Kotkapura, run by him, which is not a charitable institute and has been providing services against consideration. The complainant had severe pain in the right side in upper abdomen in the first week of May, 2007 and he approached opposite party no.1 at Kotkapura with his attendants on 07.05.2007 for his medical treatment. The opposite party no.1 advised him after checking for his admission, as he was found to be suffering from severe pain due to presence of stone in his gall bladder, which needed to be removed by means of operation. The complainant deposited Rs.15,000/- with opposite party no.1 as preliminary charges. The complainant was admitted in the evening of 07.05.2007 and he was operated upon by opposite party no.1 for the gall balder of right side of abdomen under anesthesia. The complainant remained unconscious for about five hours. The opposite party no.1 thereafter came out of the operation theatre and informed that the operation was quite successful and the stone was removed. The complainant was kept in the hospital by opposite party no.1 till late evening of 10.05.2007 and opposite party no.1 deputed his official to dress the wound of the complainant and also prescribed some medicines to him. The complainant did not feel pain probably under the influence of pain killer medicines. The complainant developed splitting pain after two hours of taking the medicines, which fact was reported to opposite party no.1 and he consoled him, by stating that the pain was on account of the operation and it was to subside by means of dressing and medication. In the late evening of 10.05.2007, opposite party no.1 discharged the complaint with the advice to visit the hospital daily for his dressing and check-up. The complainant informed opposite party no.1 that there was First Appeal No.1409 of 2010 4 no improvement in his suffering of pain, whereupon opposite party no.1 advised him to be on liquid and he daily appeared therefor for checkup and dressing. The pain was caused due to operation and it did not subside and some fluids also started oozing out of the wounds of the complainant. The complainant experienced severe pain in the wounds of operation and the bandage thereon was terribly drenched with some yellow fluid, which came out of the above wound. The complainant visited opposite party no.1 and apprised him of his condition, who after check up readmitted him and asked to deposit Rs.15,000/- in advance for further treatment, which he deposited. The opposite party no.1 started the treatment of the complainant and dressing the wounds daily, but there was no improvement in the complainant. The fluid and puss was flowing in the wounds due to operation, but opposite party no.1 never took it seriously and rather ignored it. The complainant remained in the hospital of opposite party no.1 from 15.05.2007 to 08.06.2007 and during that period, he was never taken care of by opposite party no.1 and rather no nurse attended on him. He was kept in a filthy room. The wound caused due to operation did not heal and fluid continued flowing out of the wound profusely of the complainant. The opposite party no.1 never tried to conduct ultrasound test or scan to find the exact cause thereof. No culture test was conducted by opposite party no.1 regarding the suitability of the medicines to the complainant. The complainant was asked to deposit Rs.20,000/- with opposite party no.1 again and he deposited the total amount of Rs.50,000/- with it, but his condition did not improve even therewith. The opposite party no.1 never referred the complainant to any super specialist and never gave the discharge slip to him. He never made any arrangement to shift the complainant to any super specialist. It was the duty of opposite party no.1 to mention the history of the patient. First Appeal No.1409 of 2010 5 Ultimately, on the intervention of the family members of the complainant, they took him to Adesh Hospital, Bathinda in the afternoon on 09.06.2007, where the investigation was conducted into him and he was given some medicines to control the situation. The report and discharge slip, in which reference has been made by Adesh Hospital, to PGI, Chandigarh, clearly show the condition of the complainant because of negligence of opposite party no.1. The report reveals the bad condition of the complainant, as large quantity of fluid collected in the wound and five liters thereof was drained out on 10.06.2007 and 11.06.2007 and then found the condition of the complainant without control. The complainant was referred to emergency OPD of PGIMER, Chandigarh for further management after receiving Rs.2850/-. The complainant was admitted at PGI on 11.06.2007, where he remained admitted from 11.06.2007 to 09.08.2007 and he was fully recovered there. The complainant went there for periodical check up after every 15 days upto 02.09.2007 and heavy amount of fluid and thick puss was flowing from the cavity of the wound. The surgery at PGI reveals that 6-7 stones were retrieved from the wound of the complainant, which indicated that they were not removed, when opposite party no.1 conducted the gall bladder surgery of the complainant and due to this reason, the pain and infection did not subside in him. The non removal of stone continued causing severe infection and puss in the wounds. The opposite party no.1 had not done ultrasound test and test of gall bladder in this regard. The opposite party no.1 was negligent in conducting the surgery on the complainant due to his negligence, the stones could not be removed completely from the body of the complainant. The complainant has, thus, alleged medical negligence on the part of opposite party no.1 in conducting his surgery, which further led him to spend Rs.2,04,415/- on his subsequent treatment. The complainant has, thus, filed this complaint, First Appeal No.1409 of 2010 6 praying that opposite party no.1 be directed to pay Rs.7,24,415/- to the complainant along with interest.
3. Upon notice, opposite party no.1 filed written reply, raising preliminary objections that he is specialist surgeon and is not general practitioner. He has been conferred degree of master of surgery, which he did from Govt. Medical College, Patiala in 1996 and he has been practicing as private specialist surgeon since then. He denied any medical negligence on his part in conducting the surgery of the complainant. He also denied any medical negligence on his part regarding postoperative treatment of the complainant. He further averred that he took due care in deciding as to what is to be taken in this case and due care and what treatment is to be given to the complainant and its diagnosis and due care of administering the treatment to the complainant, which was according to standard medical practice. The complainant has not come to the Forum with clean hands and has distorted the facts. It was further averred that opposite party no.1 took only Rs.5,000/- as fee for operation from the complainant and denied rest of the averments regarding demand of Rs.50,000/- by the complainant to him. Even from the brief summary issued by PGI, Chandigarh to the complainant, it is evident that scar of previous surgery of complainant was healthy and there was no negligence of opposite party no.1. The complainant was found suffering from cholelithiasis i.e. stone in gall bladder. As per clinical observation as well as reports of the complainant, he was advised for the removal of gall bladder, which was in his best interest. The opposite party no.1 was a qualified surgeon and as per standard medical practice, he performed the surgery on the complainant. The consent of the complainant's son Rajinder Singh was duly taken in Punjabi regarding the procedure and other process of the surgery. The complaint is based on surmises and First Appeal No.1409 of 2010 7 conjectures and there is no expert opinion from the medical field regarding any negligence of opposite party no.1 in conducting the surgery. The fact of admitting the complainant for surgery of gall bladder by opposite party no.1 on 07.05.2007 was admitted. It was further averred by opposite party no.1 that the complainant did not develop any complication from 07.05.2007 to 10.05.2010 and the condition of the complainant was quite satisfactory. The opposite party no.1 took due care of the complainant and he was discharged on 10.05.2007. Due to passage of time, he complained nothing in his dressing. Only a meager amount of Rs.5,000/- was charged from the complainant and the bill to this effect was duly issued by opposite party no.1. It was vehemently denied that opposite party no.1 asked the attendants of the complainant to deposit Rs.15,000/- as preliminary charges. Successful surgery was done on 07.05.2007 on the complainant and the gall bladder was removed and patient was fully conscious, as the surgery was performed under spinal anesthesia. Opposite party no.1 issued discharge slip to the complainant along with treatment chart the investigation report as indoor patient. It was denied that any compounder had not turned up to dress the wound of the complainant. Opposite party no.1 controverted the averments of the complainant imputing any negligence to opposite party. The complainant never visited opposite party no.1 before 15.05.2007 and he was admitted only on 15.05.2007 for the removal of the stitches, which was done and he was advised to take oral medicines. The complainant was asked to remain on liquid diet and he was put on semi diet. It was denied that the complainant felt pain on 15.07.2007. No such medicines, dressings or injections were even given, as alleged by the complainant. On 22.05.2007, the complainant approached opposite party no.1 for problem of distention of abdomen and he was attended to without charging even a First Appeal No.1409 of 2010 8 single penny and ultrasound was conducted along with other blood tests of the complainant and no injury to the common bile duct was found and there was no proof of correctness of the surgery performed by opposite party no.1. The patient had some fluid in the abdominal cavity and as per rules of surgery, a drain was put in the right lower abdomen under USG guidance and about 200 ml. of fluid was drained out. The complainant was advised for urgent admission in the hospital and he refused and again after three days i.e. on 29.05.2007, the complainant approached the opposite party no.1 and told that no fluid came out of drain during this period. On 01.06.2007, the complainant again came to the opposite party with problem of distention of abdomen and test of ultrasound was performed and no injury to the bile duct was found. There was no fluid in the peritoneal cavity and opposite party no.1 advised re-admission for peritoneal lavage and drainage to which the patient did not agree. The complainant was never asked to deposit Rs.20,000/-. The opposite party no.1 has been performing surgery for the last 10 years and is an experienced surgeon. As per record of Adesh Hospital, Bathinda, the complainant was referred there by some physician, meaning thereby that after 22.07.2007, the complainant might have consulted some physician, who tried to treat him, but could not do so successfully. Adesh Hospital conducted the ultrasound of the complainant and nothing abnormal was found therein. It was admitted that the complainant was admitted in PGI and from the perusal of record o PGI, it is clear that the patient never developed any problem because of surgery performed by opposite party no.1. The opposite party no.1 advised the complainant to undergo peritoneal drainage on 22.07.2007, which the complainant declined to opposite party no.1 and eventually, PGI did the same thing. The surgery conducted by the opposite party no.1 was successful and the diagnosis First Appeal No.1409 of 2010 9 which was made on 22.05.2007 regarding the complainant was also made by the attending doctor of PGI, Chandigarh, then how opposite party no.1 could be taken to be negligent. Even the ultrasound conducted by Adesh Hospital, Bathinda clearly showed that gall bladder was not seen and it was removed during surgery, which was full of tiny stones which are 300 to 400 in numbers. The opposite party no.1 denied the averments of the complainant regarding any medical negligence on his part and, thus, prayed for dismissal of the complainant.
4. Opposite party no.2 filed its separate written reply, contesting the complaint of the complainant, being insurer of opposite party no.1. It raised the preliminary objections that the complainant is not a consumer and the complaint is not maintainable. There is no deficiency in service on the part of opposite party no.1. No FIR was lodged against opposite party no.1 for medical negligence by the complainant. The complaint merits dismissal, as Shyam Hospital is the necessary party and the same was not insured with opposite party no.2. Opposite party no.2 prayed for dismissal of the complaint.
5. The complainant tendered in evidence his own affidavit Ex.C- 1 along with documents Ex.C-2 to Ex.C-8 and closed the evidence. As against it, the opposite parties tendered affidavit of Dr. Surinder Goyal Ex.R-1 along with other documents and affidavits Ex.R-2 to Ex.R-11 and closed the evidence. On conclusion of evidence and arguments, the District Forum accepted the complaint against opposite party no.1, directing it to pay Rs.1.55 lacs towards expenses incurred on the treatment of the complainant, compensation for mental harassment and litigation expenses. Aggrieved by the impugned order of the District Forum, the appellant/opposite party no.1 has filed F.A. No.1409 of 2010 against the same. Whereas the complainant has filed cross appeal i.e. First Appeal No.1409 of 2010 10 F.A. No.1806 of 2010 against the same, for enhancement of the compensation.
6. We have heard learned counsel for the parties and have also examined the record of the case.
7. The District Forum has recorded the findings, fixing the medical negligence of opposite party no.1 and awarding compensation to the complainant therefor, as set out in the order passed by it. We have to examine the correctness of the findings of the District Forum, on the test of evidence on the record. Most of the facts with regard to suffering of complainant from Cholecystectomy are not disputed. Similarly, it is not disputed fact that the complainant approached opposite party no.1 for his above referred ailment on 07.05.2007. The complainant was admitted by opposite party no.1 for removal of gall bladder operation of his body, which became painful. The complainant deposited some money with opposite party no.1 and opposite party no.1 performed the surgery on the right side of his abdomen under the influence of anesthesia. The complainant remained unconscious for some time and thereafter, gained consciousness. The complainant went home from the hospital of opposite party no.1 in the late evening of 10.05.2007 and proper dressing etc. was done on him during this period, besides giving him medicines. The complainant was discharged on 10.05.2007 by opposite party no.1 from his hospital. The problem started in this case after four days of operation on 15.05.2007, when he felt severe pain in the wounds brought about due to gall bladder operation on his person. The wounds started infecting and yellow fluid oozed out of them. The complainant again approached opposite party no.1 about his condition and he was checked up, but pain of the complainant did not subside and eventually, he was taken to Adesh Hospital at Bathinda with regard to his treatment on 09.06.2007. He was First Appeal No.1409 of 2010 11 admitted thereafter and some investigations were conducted and thereafter, he was referred to PGIMER, Chandigarh for further management with referral documents. The complainant was eventually admitted in PGI from 01.06.2007 to 09.08.2007 and he was treated and recovered therefrom. The surgery was conducted at PGI, Chandigarh firstly on 07.06.2007 and secondly on 07.07.2007 and heavy amount of fluid and heavy puss, which was flowing from cavity of the wound, was drained out from the complainant. The findings of first surgery at PGI revealed that 6/7 stones of ¾ ml in sizes were retrieved from the wounds, which could not be removed by opposite party no.1, when he conducted the Cholecytectomy on the complainant. The complainant alleged medical negligence on the party of opposite party no.1 in not completely removing the 6/7 stones of ¾ ml. , which were left unremoved by opposite party no.1, when he conducted the operation of the gall bladder of the complainant.
8. On the other hand, the plea of opposite party no.1 in this case is that he took proper care of the complainant and provided the treatment to him as per medical standard practice. He is a duly qualified surgeon. He charged only Rs.5,000/- as his fee for conducting the operation on the complainant. He denied charging of any other fee, as pleaded by the complainant in the complaint. He further contended that even the record produced for admission of the complainant in PGI clearly mentioned that the scar of previous surgery, which was performed on him was healed and was healthy. There was no medical negligence, at all, on his part involved in this case. The complainant was suffering from cholelithiasis i.e. stone in gall bladder and he was admitted for its removal, which is according to standard medical practice. The consent of the son of the complainant, Rajinder Singh, was duly taken about it. The plea taken by First Appeal No.1409 of 2010 12 opposite party no.1 refuting the medical negligence in this case is that the operation was conducted by him through ultrasound and laboratory tests and the complainant was diagnosed as a case of gall bladder stone, for which, he was advised to undergo surgery. No problem developed in the complainant from 07.05.2007 to 10.05.2007 and his progress remained quite satisfactory and he was discharged on 10.05.2007 by charging Rs.5,000/- only. It was denied that proper dressing was not done on the surgical wound of the complainant by opposite party no.1. The complainant successfully responded to the IV treatment and thereafter started taking orally. The complainant never visited opposite party no.1 before 15.05.2007 for the removal of stitches, which were removed and he was advised to take oral medicines. It was denied that the complainant felt any severe pain on 15.05.2007 in the written reply by opposite party no.1. The complainant approached opposite party no.1 on 22.05.2007, complaining distention of abdomen problem. Without charging any money from him, the ultrasound was conducted along with blood tests and there was no injury to any bile duct of the complainant, which is the proof of correctness of the surgery performed by opposite party no.1. There was some fluid in the abdominal cavity and as per standard medical practice, a drain was put in the right side of lower abdomen and about 200 ml. of fluid was drained out. The complainant was advised admission, but he refused and the complainant approached opposite party no.1 on 25.05.2007 and told that no fluid came out of drain during the above period. The complainant went home without any medical problem. The complainant again came to opposite party no.1 on 01.06.2007 with problem of distention of abdomen and again ultrasound and blood tests were performed and no injury to bile duct of the complainant was found. There was fluid in the peritoneal cavity and opposite party no.1 as a specialist First Appeal No.1409 of 2010 13 surgeon advised readmission for peritoneal ravage and drainage, the complainant did not agree to it and went away. The fluid was removed without needles under guidance of ultrasound and the patient was advised oral medicine and asked for re-check up, but he never appeared thereafter. The opposite party no.1 pleaded that even the diagnosis of the complainant by PGI was the same diagnosis, which was concluded by opposite party no.1 of the complainant. Even if there were 6/7 stones of ¾ ml. retrieved from the pelvis, even then there is no significance, as the medical literature is clear on such point, as the stones left during operation do not cause any harm to the patient, although this fact has not been admitted by opposite party no.1 and was specifically denied. The complainant never suffered any pain or infection therein.
9. Since the entire case rests on the medical literature, as to whether there is any medical negligence on the part of opposite party no.1 in this case or not, so we have to take the evidence of expert doctors, who have been examined on the record as well as the assistance of medical literature on this point, to reach at the correct conclusion. Dr. Mahesh Kumar, Sr. Resident, Surgery Ward, PGI was examined before the District Forum on 25.0.3.2009. He produced the summoned record of PGI, consisting of 176 pages, vide Ex.C-6 in consolidated shape. He stated that surgery was conducted of complainant at PGI and he was already operated on the right side of abdomen and scar was just lateral to the middle line. He further stated that a pipe to drain out the fluid being produced in the abdomen being produced in the abdomen. He further stated that he cannot say whether there was an abscess in abdomen and it could have developed after second surgery as well. There was no infection in the wound of the patient due to gall bladder operation. He was cross-examined wherein he admitted that complication to patient can arise First Appeal No.1409 of 2010 14 at any time despite giving the best possible medicines and surgery and postoperative care. He was not present in the operation theatre at the time of surgery of the complainant at PGI. He further stated that the wound after removal of gall bladder of the complainant was healthy and was cured as per Ex.C-6. He further stated that the postoperative complication can occur at any time place. The complication that the patient developed is a well-known complication of surgery performed. Similarly, Dr. Gursewak Singh, M.D. DM, Gastroenterologist, Pragma Hospital, Bathinda was examined on 25.03.2009 before the District Forum. He testified that he was posted as Assistant Professor in medicine at Adesh Hospital, Bathinda, where he admitted the complainant. He did not remember the case history of the patient, as the patient was not having any previous medical record with him. He cannot say anything about the surgery conducted and the postoperative care done by opposite party no.1 Dr. Surinder Goyal.
10. The material evidence on the record is the statement of expert witness Dr. Sudhir Khichy in this case, who has deposed that he has consulted the record. He is the professor and head of the surgery department of Guru Gobind Singh Medical College & Hospital, Faridkot. He is MCH in Plastic Surgery and MS in General Surgery. He has also attended the conferences and symposiums in this subject even at Canada. He is expert in surgery since 1988. He stated that after consulting the record, he concluded that the operation/surgery performed by opposite party no.1 Dr. Surinder Goyal is one of the modalities. The opposite party no.1 gave the right diagnosis, as per established medical practice. It has transpired in his statement that complication can arise at any time despite giving best possible treatment in such type of surgery. He further stated that there is possible and it is a known complication that First Appeal No.1409 of 2010 15 there can be bile leak from the bed of the gall bladder. He further stated categorically in his statement that the PGI surgery has nothing to do with the surgery performed by opposite party no.1 Dr. Surinder Goyal. This witness was elaborately cross-examined by the complainant also. He stated that as per operative findings of the PGI of surgery, stones were removed from pelvis. Draining out to bile fluid pertains to indoor procedure. He further stated that the patient had to approach PGI due to complication arising out of the operation conducted by opposite party no.1. In addition to the above-recorded expert evidence on the record, we have also examined the evidence of the complainant, contained in his affidavit Ex.C-1. Discharge slip dated 10.05.2007 by opposite party no.1 is Ex.C-2. The discharge and follow up card at PGI of the complainant is Ex.C-3. Discharge slip by Adesh Hospital is Ex.C-5 and composite medical record of admission and surveyor the complainant at PGI is Ex.C-
6. In addition to above documents, the complainant has also placed on the record, the receipts and bills Ex.C-7 to Ex.C-40 on the record, to substantiate that he incurred lot of expenses on his treatment. We have also examined the evidence led on record by opposite party no.1 in this case. Affidavit of opposite party no.1 Dr. Surinder Goyal is Ex.R-1, denying any medical negligence on his part. Ex.R-2 is the copy of degree in Master of Surgery of opposite party no.1. Ex.R-3 is the certificate of registration as surgeon by Punjab Medical Council of opposite party no.1. Ex.R-4 is the list. Ex.R-5 is the charging of fee of Rs.5,000/- on 10.05.2007 by opposite party no.1 from the complainant. Ex.R-6 to Ex.R-8 are the certificates. Ex.R-9 is the indoor file maintained by the complainant. Ex.R-11 is the affidavit of J.P. Singh, Assistant Manager of opposite party no.2 in this case.
First Appeal No.1409 of 2010 16
11. From examination of above referred evidence on record, we have to take the assistance of medical literature in this case. Removal of gall bladder is known in medical terminology as "Cholecystectomy". The medical literature lays down as under:-
"An uncommon but potentially serious complication is injury to the common bile duct, which connects the cystic and common hepatic ducts to the duodenum. An injured bile duct can leak bile and cause a painful and potentially dangerous infection. Many cases of minor injury to the common bile duct can be managed non-surgically. Major injury to the bile duct, however, is a very serious problem and may require corrective surgery. This surgery should be performed by an experienced biliary surgeon.
Abdominal peritoneal adhesions, gangrenous gallbladders, and other problems that obscure vision are discovered during about 5% ofb laparoscopic surgeries, forcing surgeons to switch to the standard cholecystectomy for safe removal of the gallbladder. Adhesions and gangrene can be serious, but converting to open surgery does not equate to a complication.
12. The medical literature further states that one common complication of cholecystectomy is inadvertent injury to analogous bile ducts known as Ducts of Luschka, occurring in 33% of the population. It is non-problematic until the gall bladder is removed, and the tiny supravesicular ducts may be incompletely cauterized or remain unobserved, leading to biliary leak post-operatively. The patient will develop biliary peritonitis within 5 to 7 days following surgery, and will require a temporary biliary stent. It is important that the clinician recognize the possibility of bile peritonitis early and confirm diagnosis via HIDA scan to lower morbidity rate. Aggressive pain management and antibiotic therapy should be initiated as soon as diagnosed.
First Appeal No.1409 of 2010 17
13. From appraisal of above referred medical literature, as referred to above, we have to come to the conclusion that uncommon phenomena in this type of surgery is the injury to common bile duct, which connects the cystic and common hepatic ducts to the duodenum. In the instant case, it has been proved on record by the expert witnesses and even from the evidence of opposite party no.1 that there was no injury to the bile duct of the complainant. The case of the complainant does not fall in this uncommon phenomenon, causing the problem on account of injury to bile duct. The case of the complainant is covered under common complication of Cholecystectomy on account of inadvertent injury to analogous bile duct, known as Ducts of Luschka, occurring in 33% of the population. It is non-problematic until the gall bladder is removed and the tiny supravesicular ducts may be incompletely cauterized or remain unobserved, leading to biliary leak post-operatively. It can be managed in some cases of non-surgical treatment as well. In the instant case, there was no damage to common bile duct in the operation conducted by opposite party no.1, which occurs in rare cases of 0.25%. It has appeared in the evidence of Dr. Mahesh Kumar that the infection in the wound of the complainant was completely on account of surgery conducted by opposite party no.1. It was from the bed of gall bladder from where the bile leakage was caused and wound of surgery of the complainant was healthy, which means that it was cured. This important aspect has been ignored by the District Forum in the order under appeal in this case. Postoperative complication can occur at any time at any place, which is a well-known complication of surgery performed, as in this case. The District Forum, thus, took this known complication of surgery of Cholecystectomy as a gross negligence in holding opposite party no.1 as medically negligent. It has appeared on record from the expert witnesses First Appeal No.1409 of 2010 18 as well as medical literature (supra) and from the record of PGI that opposite party no.1 diagnosed the case properly and gave the treatment as per medical standard practice. There is no medical negligence on the part of opposite party no.1 in this case, when he conducted the surgery of removal of gall bladder of the complainant. Opposite party no.1 is also a qualified surgeon, vide his master's degree in surgery Ex.R-2 on the record. The adjudicating authority is just like a layman and is not expert in medical science and it has to take the assistance of expert evidence and the medical literature on the record, to come to the correct conclusion. The medical literature, which is available on the record, shows that the small bile ducts in the gall bladder bed, through do not drain any liver parenchyma, they can be a source of bile leak or billiary peritonitis after Cholecystectomy in both adults and children. The statement of Dr. Sudhir Khichy, the Specialist in this field, has been completely overlooked by the District Forum without any proper reasoning. The District Forum, thus, erroneously concluded that since any pelvis could not have been there, which means that there should not be any slipping of stones at the time of removal of stones in the gall bladder. Admittedly, there were no stones in the gall bladder in this case and they were only in the peritoneal cavity, which is a common complication of this type of surgery. It is also evident on the record that the surgical wounds caused due to injury by opposite party no.1 were clearly cured, as is evident on record from the testimony of Dr. Mahesh Kumar.
14. We have, thus, reached the conclusion that this is a case of inadvertent injury to analogous bile duct, known as Ducts of Luschka, occurring in 33% of the population. It cannot be said to be any medical negligence on the part of opposite party no.1 or deficient services on his part. The District Forum fell in error in overlooking the medical literature First Appeal No.1409 of 2010 19 on this point as well as the expert evidence on the record. With regard to charging excess fee by opposite party no.1 from the complainant, one receipt of charging Rs.5,000/- is on the record, whereas there is no other substance led by the complainant to establish that opposite party no.1 charged any other amount from him unreasonably. Usually, when a person files complaint against the medical practitioner, he exaggerates his claim and solid evidence is required to establish it before the Consumer Forum.
15. As a result of our above discussion, we have come to this conclusion that no medical negligence is proved on record by the complainant against opposite party no.1. It is for the complainant to prove the medical negligence against the medical practitioner/surgeon and the complainant has failed to establish it on the record. The order of the District Forum under appeal cannot be sustained in this case and is ordered to be set aside.
16. As a sequel of above discussion, we accept F.A. No.1409 of 2010 (Dr. Surinder Goyal Vs. Surjit Singh & Anr.) filed by the appellant Dr. Surinder Goyal, whereas we dismiss F.A. No.1806 of 2010 (Surjit Singh Vs. Dr. Surinder Goyal & Anr.) filed by the complainant/respondent and resultantly, the complaint filed by the complainant stands dismissed accordingly by setting aside the order of the District Forum.
17. The appellant in F.A. No.1409 of 2010 had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal along with another sum of Rs.50,000/- as per directions of this Commission. Both these amounts with interest accrued thereon, if any, be remitted by the registry to the appellant by way of a crossed cheque/demand draft after the expiry of 45 days.
First Appeal No.1409 of 2010 20
18. Arguments in these appeals were heard on 18.11.2014 and the order was reserved. Now the order be communicated to the parties. The appeals could not be decided within the stipulated period due to heavy pendency of court cases.
19. Copy of order be placed in F.A. No.1806 of 2010 (Surjit Singh Vs. Dr. Surinder Goyal & Anr.).
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (JASBIR SINGH GILL) MEMBER December 01, 2014.
(Gurmeet S) Refer to Reporter (J. S. KLAR) PRESIDING JUDICIAL MEMBER