State Consumer Disputes Redressal Commission
Sukhdev Raj Kaushal vs Dr. S.P.Gupta on 11 June, 2015
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.283 of 2012
Date of Institution: 09.03.2012
Date of Decision: 11.06.2015.
Sukhdev Raj Kaushal aged about 58 years S/o Rup Chand Kaushal,
R/o H.No.3757/5, Lehal, Near Shivalik Public School, Patiala.
.....Appellant/complainant
Versus
1. Dr. S.P. Gupta, Nitin Nursing Home, 171, Ajit Nagar, Near
Income Tax Office, Patiala.
2. Dr. Neena Gupta, Nitin Nursing Home, 171, Ajit Naga, Near
Income Tax Office, Patiala.
3. The Divisional Manager, United India Insurance Company Ltd
at Sai Market, Patiala i.e. the Insurance Company of Dr. S.P.
Gupta (opposite party no.1).
4. The Divisional Manager, United India Insurance Company Ltd.
at Sai Market, Patiala, i.e. the Insurance Company of Dr.
Neena Gupta (opposite party no.2)
.....Respondents/opposite parties
Present:-
For the appellant : Sh. Sukhdev Raj Kaushal in person.
For respondents : Sh. Ashwani Talwar, Advocate.
First appeal against order dated
23.12.2011 passed by the District
Consumer Disputes Redressal
Forum, Patiala.
First Appeal Nos. 283 & 288 of 2012 2
AND
2) First Appeal No.288 of 2012
Date of Institution: 12.03.2012
Date of Decision : 11.06.2015
1. Dr. S.P. Gupta, Nitin Nursing Home, 171, Ajit Nagar, Near
Income Tax Office, Patiala.
2. Dr. Neena Gupta, Nitin Nursing Home, 171, Ajit Naga, Near
Income Tax Office, Patiala.
3. The Divisional Manager, United India Insurance Company Ltd
at Sai Market, Patiala.
.....Appellants/opposite parties
Versus
Sukhdev Raj Kaushal aged about 58 years S/o Rup Chand Kaushal,
R/o H.No.3757/5, Legal, Near Shivalik Public School, Patiala.
.....Respondent/complainant
Present:-
For the appellants : Sh. Ashwani Talwar, Advocate &
Sh. Satpal Dhamija, Advocates.
For respondent : Sh. Sukhdev Raj Kaushal in person
First appeal against order dated
23.12.2011 passed by the District
Consumer Disputes Redressal
Forum, Patiala.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
Shri H.S. Guram, Member.
.............................................. First Appeal Nos. 283 & 288 of 2012 3 J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
By this common order, we intend to dispose of the above referred two first appeals, as they have arisen own of the same order of District Forum Patiala dated 23.12.2011, hence they can be conveniently disposed of together. The order shall be pronounced in main first appeal no.283 of 2012.
2. First appeal no.283 of 2012 has been filed by the appellant of this appeal (the complainant in the complaint) for enhancement of the compensation, in as much as, he is dissatisfied with the quantum of compensation awarded by the District Consumer Disputes Redressal Forum Patiala (in short, "the District Forum") to him. First appeal no.288 of 2012 has been filed by the appellants of this appeal (the opposite parties in the complaint) against the order of District Forum Patiala, vide which, the District Forum awarded compensation against them to Sukhdev Raj Kaushal complainant, as detailed in the order. Both the above referred appeals are being disposed of by this common order by this Bench.
3. Sukhdev Raj Kaushal complainant filed the complaint under Section 12 of the Consumer Protection Act, 1986 (in short "Act") against the OPs on the averments that he contacted OP no.1 Dr.S.P. Gupta, Nitin Nursing Home, 171 Ajit Nagar, Near Income Tax Office, Patiala with regard to extraction of stone in his gall- bladder on 06.03.2007 and OP nos.1 and 2 advised him for First Appeal Nos. 283 & 288 of 2012 4 laparoscopic operation. On 07.03.2007, after examining the test reports of complainant, OP nos.1 and 2 admitted the complainant in their hospital. On 08.03.2007, laparoscopic operation was conducted on the complainant in the operation theatre of OP nos.1 and 2 and in the meantime, one attendant emerged from the operation theatre and asked the wife, daughter and cousin brother of the complainant to give their consent for open surgery due to some complications and asked them to arrange 4 units of blood. After operation, OP no.2 openly declared in the presence of family members of the complainant that the patient suffered from 99% carcinoma of gall bladder, due to which the complications arose. OP no.1 had cut the vein of the complainant during the operation, which was sutured. The complainant suffered from vomiting, loose motion for five days continuously during admission in the hospital for eight days insisting his visit to toilet for 12/13 times a day. Excessive leakage of bile of complainant through drain pipe continued for three months. The complainant complained to OP nos.1 and 2 regarding suffering from above disorders, but OP nos.1 and 2 felt offended therewith and stated that they were fed up with the minor complaints of the complainant. The complainant then stated to them it would be better if he was discharged, so that he could go for effective treatment somewhere else. OP nos.1 and 2 discharged the complainant on 15.03.2007 with the above complications being faced by the complainant. The complainant got admitted himself in Rajindra First Appeal Nos. 283 & 288 of 2012 5 Hospital Patiala on the same day with diagnosis as "operated case of cholecystectomy with 2 drains in situ (outside). T-tube cholangiogram was done, which showed proximal obstruction of CBD. The complainant was referred to PGI Chandigarh surgical ward for ERCP and further management as well. The complainant was discharged on 23.03.2007. The complainant consulted the PGI doctors on the same day. Doctors of PGI advised some tests of complainant including ERCP. This treatment of complainant continued upto 17.04.2007 and complainant could not even properly sit or stand. The complainant spent huge expenses for his treatment at PGI. During investigation at PGI, it was revealed that on 08.03.2007, laparoscopic operation was converted into open surgery of complainant due to brisk bleeding, as portal vein of the complainant was cut by OP nos.1 and 2 during laparoscopic operation. Further ERCP showed partial stricture right main hepatic duct and common hepatic duct (CHD), prominent sided intrahepatic biliary radicals and dilatation of Lt sided intrahepatic biliary radicals. The complainant had to admit himself in PGI Chandigarh due to shivering, high fever and jaundice. The condition of the complainant deteriorated due to lack of appetite, Hb. & jaundice, etc. The complainant had to seek second opinion and contacted the surgeon at Sir Gaga Ram Hospital at New Delhi. The Senior Surgeon of the said hospital advised immediate operation of complainant and hence the complainant was operated for a major surgery on 02.05.2007 First Appeal Nos. 283 & 288 of 2012 6 thereat and remained admit there till 16.05.2007. The surgeon at Delhi diagnosed complainant as "post cholecystectomy biliary fistula and stricture of left hepatic duct." A major critical and typical surgery known as Roux-en-y left hepaticojejunostomy was performed on the complainant. The complainant was discharged on 16.05.2007 from Ganga Ram Hospital at New Delhi with the advice to stay at Delhi. The complainant was compelled to stay at Faridabad for follow up treatment and visited the above Delhi Hospital on 23.05.2007, 24.05.2007, 25.05.2007 and 28.05.2007 and spent money on his medication, medicines, test reports and transport. The complainant spent total amount of Rs.4 lakhs on his above referred treatments. The complainant has been still undergoing and following up treatment at New Delhi and it would continue for five years in half yearly thorough check ups. OP nos.1 and 2 admitted in discharge slip that laparoscopic operation was converted into open surgery due to brisk bleeding, thus losing 1500 ML of blood at the operation table, because a portal vein was cut and 4 units of blood were asked to be arranged by OP nos.1 and 2, which were transfused to the complainant. The complainant was in a state of danger, because it was difficult to arrange 4 units of blood impromptu especially when complainant was being operated upon. OP nos.1 and 2 conducted the operation without prior arrangement of any blood and are, thus, negligent on this point. The reports and C.T. Scan dated 07.03.2007 revealed that there was a doubt of Neoplastic and hence Radiologist First Appeal Nos. 283 & 288 of 2012 7 advised further investigations, but the OP nos.1 and 2 ignored the same and proceeded to commit the lapse on their part. The OPs had also not proposed any further investigation, especially, when there was no urgency to conduct the operation on the complainant at that juncture. The OP nos.1 and 2 had sufficient time for proper diagnosis of the complainant, if the OPs had even the slightest possible doubt of Mirizzi's Syndrome as shown in discharge slip or any anatomical changes or problems despite seeing the C.T. Scan dated 07.03.2007. The OPs had to recommend ERCP, MRCP or any other related tests in view of the medical standard literature. The OPs proceeded to conduct the operation on the complainant by ignoring the above referred guidelines just to earn money. It was further averred that suspicion of gallbladder malignancy mandates that standard open resection be undertaken. The OPs started laparoscopic cholecystectomy contrary to this and had to convert it into open surgery due to complications, irrespective of the fact that CT scan report indicated as "Malignancy". The surgeon is supposed to remain vigilant to avoid injury to Common Bile Duct or Common Hepatic Duct for example:
(a) Meticulous dissection and positive identification of the cystic duct, its entry into the common bile duct, and the cystic artery are absolutely mandatory and significant to reduce the likelihood of bile duct injury;First Appeal Nos. 283 & 288 of 2012 8
(b) The best technique approach in preventing and limiting bile duct injury, regardless use of cholangiography, includes methodical dissection with care exposure and identification of the structure of the triangular of calot.
(c) Care must be taken, however, during the dissection to avoid creating a defect in the common hepatic duct.
(d) Careful legation of the cystic duct is essential in preventing not only a bile leak, but also in reducing the possibility of bile duct injury and stricture.
4. Contrary to above guidelines, the OP nos.1 and 2 proceeded to conduct the operation and damaged the common hepatic duct/common bile duct and also cut the portal vein of the complainant during the operation due to their negligence. It is further pleaded, that as per survey report, there are rarest chances that a bile duct injury might arise during gallbladder cholecystectomy. Medical literature indicates that the risk of bile duct injury during the open cholecystectomy is between 0.1% to 0.2%. The OP caused injury to CBD/CHD of complainant permanently due to their negligence, carelessness and absent minded attitude. As per concept of the surgery, if a bile duct injury occurs and comes to notice of the surgeon, an immediate repair should be performed and coordinated effort by Radiologist, Endoscopist and Surgeons is necessary to optimize management. There should be no hesitation First Appeal Nos. 283 & 288 of 2012 9 in asking for the help of a surgeon experienced in biliary repair. The OP nos.1 and 2 again committed sheer negligence and carelessness during the treatment and also provided poor services to the complainant. As admitted by OP nos.1 and 2 in the discharge slip, the T-tube was inserted on 08.03.2007, as the CBD injury occurred during the operation. T-tube did not function till 23.04.2007 and drainage of bile through this was not started, as was required. This caused the liver affected, resulting leakage of bile, through drain pipe only, causing vomiting, jaundice, fever, loss of appetite, weight and blood, thus, affecting the general health of the complainant to make it worse one. OP nos.1 and 2 have failed to check the leakage of excess bile, during the stay of 8 days in their hospital, which can be fatal one. The OP nos.1 and 2 had not disclosed the CBD injury to the wife, children and other family members of the complainant, despite their repeated requests in this regard. This fact was revealed to them, when the PGI doctors diagnosed the same and it was further confirmed by the Delhi doctors. As admitted by OP nos.1 and 2 that T-Tube was put, which indicates a CBD/CHD was damaged due to which excessive bile continued to be leaked for more than four months of the complainant. The bile so leaked affected the liver causing jaundice, fever, loss of appetite and weight. In order to avoid CBD/CHD injury, the surgeon must have corrected the mechanism in place to minimize the chance of these injuries, including knowledge of anatomy, typical mechanism of injury, appropriate level of First Appeal Nos. 283 & 288 of 2012 10 suspicion and logic. The OP nos.1 and 2 have not contacted and consulted any specialist surgeon in biliary tract or Radiologist to diagnose the same and to provide proper treatment to the complainant and they are, thus, negligent on this point. OP nos.1 and 2 openly declared that the complainant suffered from gallbladder carcinoma in the presence of family members of the complainant without going through the reports of biopsy, which caused mental anguish to the complainant. The report of biopsy was received on 11.03.2007, which clearly established that 'no evidence of malignancy was there'. Cutting of bile vein causing damage to CBD of the complainant is the grossest act of negligent on the part of OP nos.1 and 2. The complainant also complained to the Deputy Commissioner Patiala, which was forwarded to Rajindra Hospital Patiala and a team of three medical experts was constituted for inquiry and to look into the matter. The complainant had to undergo compelled biliary tract surgery at Sir Ganga Ram Hospital at Delhi. This impacted the routine activities of the complainant and it became impossible for him to drive or ride on scooter/motorcycle etc. The physical movements of complainant have been restricted only to a car or taxi for attending the office or for going somewhere else for urgent purposes. OP nos.1 and 2 committed sheer blunder and disastrous mistake by cutting the portal vein of the complainant during the above laparoscopic operation. The complainant has further averred that he had to undergo more than 100 times of blood First Appeal Nos. 283 & 288 of 2012 11 tests damaging his blood veins by means of prickling needles time and again, which caused physical pains and mental agony to him. The above said complications were caused to complainant by OP nos.1 and 2 due to their negligence. The complainant has, thus, prayed that he be awarded Rs.4 lakhs as compensation for expenditure incurred on the treatment from 07.03.2007 to 11.12.2007 alongwith future cost for five years for further follow up treatment, as prescribed in the surgery literature due to this operation. The complainant has further prayed for compensation of Rs.10 lakhs on account of causing irrecoverable and incurable injury by cutting of his portal vein, which is a vital blood vessel to survive and thereby permanently damaging the common bile duct, which directly affected the liver of the complainant and, thus, reducing the life span of the complainant and complainant also further prayed for the amount of Rs.90,000/- as loss of leave encashment salary, besides Rs.50,000/- as costs of litigation.
5. Upon notice, OP nos.1 and 2 appeared and filed their written reply by raising preliminary objections that complainant has no cause of action to file the complaint pertaining to omission and commission of OP nos.1 and 2. The complaint of the complainant is alleged to be false, misconceived and frivolous and filed with the deliberate purpose to harass OP nos.1 and 2 after well planned thought. The complaint is alleged to be bad for non-impleadment of United India Insurance Company, insurer of OP nos.1 and 2 for First Appeal Nos. 283 & 288 of 2012 12 professional indemnity policy no.040100/46/06/35/00001260 to OP no.1 for the period from 25.07.2006 to 24.07.2007 and policy no.040100/46/06/35/00001261 to OP no.2 for the period from 25.07.2006 to 24.07.2007. On merits, it was averred that complainant had majority of difficulties due to 7 years large neglected stone (25x17mm) in calot's triangle area. This stone invaded into CBD, as found at the time of operation and had caused Xanthogranulomatous type of histopathology report, which mimic cancer of gall bladder. It was only because of proper technique, experience and skill of the OPs that operation could be completed despite various difficulties and bleeding from portal vein of the complainant. There was pre-existing CBD stricture, if answering OPs caused stricture it cannot form in 15 days. It was denied that they made any declaration of cancer of complainant, as alleged in the complaint. It was further pleaded that pre-operative cancer was doubted on CT scan. Mirizzi's syndrome includes stricture of CBD, which was found during the operation and was pre-existing. It was further averred that complainant came to OP nos.1 and 2 for the first time on 05.03.2007 and not on 06.03.2007. The complainant gave his history of gallbladder stones since 2000 and his symptoms deteriorated due to delay. The complainant had also previously undergone surgery for cervical spine at Mohali and after examination he was prescribed medicines for 10 days and advised a fresh ultrasound prior to operation. The complainant returned 06.03.2007 First Appeal Nos. 283 & 288 of 2012 13 with an ultrasound report by Dr. Narula, which reported that gallbladder was only partially visualized and had single stone and thickened walls. Radiologist had advised CT scan for evaluation of gallbladder. The complainant got a CT scan test done on 07.03.2007, which showed contracted gallbladder with a large (25x17mm) gall stone in the neck of gallbladder with a symmetrical wall thickening, which could be neoplastic (cancer) or chronic inflammatory. On learning the CT scan report, the complainant and his relatives wanted his operation forthwith. The consequences of the nature of pathology and complications and risks were duly explained to the complainant and his relatives by OP nos.1 and 2. A diagnostic laparoscopy prior to proceeding for cholecystectomy was planned to rule out the diagnosis of gallbladder cancer of the complainant. The complainant and his wife consented and signed for DVL, laparoscopic cholecystectomy and even for conversion to open cholecystectomy. It was further pleaded by the answering OPs that operation was undertaken on 08.03.2007, which was displayed even on the screen. It was further stated that there was no evidence of cancer, which was conveyed to the wife of the complainant and thereafter operation for cholecystectomy was started. There was marked inflammation, fibrosis and dense adhesions of gallbladder with colon, stomach, liver and diaphragm. With great difficulty, the answering OPs could reach up to the neck of gallbladder. When a brisk bleeding started, which could not be controlled First Appeal Nos. 283 & 288 of 2012 14 laparoscopically, the operation was then only converted to open surgery after taking a fresh consent from the daughter of the complainant and bleeding from portal vein was controlled. A large stone was impacted in the neck of gallbladder completely obliterating calot's triangle. For the safety of the patient, fundus first technique was used and a partial cholecystectomy was performed alongwith stone removal. The cuff of gallbladder adherent to CBD was sutured over a T-tube, which could be easily passed in the lower end of CBD. Proximal opening could not be located despite best efforts. CBD or CHD were never cut or ligated. Another drain was placed under the liver to control any leakage. It was denied by answering OPs that complainant suffered from any major complications. The complainant had a T-tube and a drain tube. A T-tube cholangiogram and ERCP were to be performed prior to the removal of these tubes. For this purpose, complainant was referred to Gastroenterologist. The complainant insisted for his referral to Rajindra Hospital Patiala and on his request, he was discharged on 15.03.2007 and given a proper self-explanatory discharge card. T-tube cholangiogram was performed as per plan, but as proximal could not be visualized, ERCP was advised. As ERCP was available only at PGI Chandigarh, so complainant was referred there for further management. ERCP performed at PGI showed partial stricture of CHD etc., which was pre-existent at the time of operation on 08.03.2007. The CT scan revealed a doubt of neoplastic change in First Appeal Nos. 283 & 288 of 2012 15 gallbladder and Radiologist did not mention ERCP/MRCP in his report for further investigations. It is not mandatory to perform open operation on mere suspicion due to wall thickening of the gall bladder. It was further averred that OP nos.1 and 2 operated the complainant, as per the standard medical literature and they have not committed any negligence in this regard. Gall bladder was first separated at calot's triangle and finally at fundus to complete the operation. However, certain group of cases is too difficult to follow these steps and a different technique of fundus first and partial cholecystectomy has to be resorted to. By this technique, the injury to important structures like CBD is avoided. It was further pleaded that this pre-existent stricture (narrowing) in the case of complainant became evident only at operation on 08.03.2007, as upper end of CBD could not be detected despite best efforts by the answering OPs. OP nos.1 and 2 have further pleaded that they have performed more than 5000 cholecystectomy operations and are the experienced surgeon. They further averred that injury to portal vein took place during the laparoscopic operation, which was controlled by the answering OPs. OP nos.1 and 2 further averred that they cannot be held to be negligent for the above operation, as there are routine types of complications, which are encountered by the operating surgeon. OP nos.1 and 2 denied any medical negligence on their part in their written reply and, thus, prayed for the dismissal of complaint of the complainant.
First Appeal Nos. 283 & 288 of 2012 16
6. OP no.3, the United India Insurance Company Limited filed its separate written reply admitting that the complainant was operated by OP nos.1 and 2. OP no.3 issued the professional indemnity insurance policy nos.040100/46/06/35/00001260 effective from 25.07.2006 to 24.07.2007 to OP no.1 and 040100/46/06/35/00001261 effective from 23.07.2006 to 22.07.2007 to OP no.2.
7. The complainant tendered in evidence documents Ex.C-1 to C-387 and closed the evidence. As against it, OP nos.1 and 2 tendered in evidence affidavit of Dr. S.P. Gupta Ex.R-1, affidavit of Amar Chand Ex.R-2 and affidavit of Atul Gupta Ex.R-3 alongwith documents Ex.R-4 to R-9 and closed the evidence. On conclusion of evidence and arguments, the District Forum Patiala accepted the complaint of the complainant, awarding compensation of Rs.9,02,680/- with interest @10% per annum from the date of filing the complaint till its realization to the complainant and further directing the OPs to pay Rs.30,000/- as costs of litigation to complainant.
8. We have heard Sh. Sukhdev Raj Kaushal, the complainant, now appellant, in person of first appeal no.283 of 2012 and Sh. Ashwani Talwar and Sh. Satpal Dhamija, Advocates for the OPs, now the appellants of first appeal no.288 of 2012 and have also examined the record of the case. The complainant has alleged it First Appeal Nos. 283 & 288 of 2012 17 to be a case of medical negligence on the part of OP nos.1 and 2 and has relied upon the documents on the record to substantiate it. We are called upon to adjudge this point in the above referred appeals whether OP nos.1 and 2 exercised the due care to perform the laparoscopic cholecystectomy on the complainant on the basis of the report. We have examined the report of ultrasound dated 06.03.2007 by Dr. S.P.S. Narula, which is reproduced as under:
Liver: Echo texture is bright, Intra-hepatic biliary radicles are normal. No focal lesion seen.
Gall Bladder: Lumen is partially visualized. Thickening of the walls is seen. A dense echogenic speck measuring about 1.5 cm is seen within it. Intraluminal biliary sludge is seen. Only a small part of CBD could be visualized at porta hepatis- measures 5.8 mm (normal upto 7mm). No calculus could be seen in the visible part of CBD at the time examination. Pancreas: Visible part shows uniform echo pattern. Impression: Study reveals fatty infiltration of liver with cholelithiasis with significant thickening of the walls of the gall bladder with sludge in the gall bladder.
Please correlate clinically.
Advised Liver Function Tests & CT Scan for evaluation of the gall bladder.First Appeal Nos. 283 & 288 of 2012 18
As per this report of ultrasound, lumen is partially visualized. Only a small part of CBD could be visualized at porta hepatis- measures:5.8 mm (normal upto 7mm). No calculus could be seen in the visible part of CBD at the time examination. Liver function tests & CT Scan for evaluation of the gall bladder was advised and correlation clinically was also advised. Radiologist in his above report submitted fatty infiltration of liver with cholelithiasis with significant thickening of the walls of the gall bladder with sludge in the gall bladder.
9. Ex.41, the computed tomographic study of upper abdomen- with oral gastro scan and I/V contrast of the complainant is reproduced as under:
Serial axial sections of abdomen were taken starting from domes of diaphragm till the lower pole of kidneys & evaluated. Prior to scanning oral contrast was given for bowel opacification starting one and a half hour before the procedure and I/V contrast was given for tissue enhancement just before the scanning.
Liver: It is normal in size and outline. Liver parenchyma shows reduced pre and post contrast attenuation values. No focal area of altered attenuation or abnormal enhancement is seen in hepatic parenchyma. Segmental anatomy is well maintained. Intrahepatic biliary radicles are not dilated. No mass lesion seen at porta hepatis.First Appeal Nos. 283 & 288 of 2012 19
Gall Bladder: Shows partial distension at the time of examination. An intraluminal calculus measuring 25x17 mm is seen in the region of neck of gall bladder with evidence of intraluminal sludge in the gall bladder. Asymmetrical wall thickening is seen - more in fundal region and means: maximum upto 8 mm. Thickened wall of gall bladder shows evidence of mild contrast enhancement. Minimal stranding of adjoining pericholecystic fat is seen. Fat planes with adjoining right lobe are not clearly defined, however no obvious focal area of altered attenuation is common bile duct is not dilated. Pancreas: Normal in dimensions in the region of head, body and tail. It shows homogenous attenuation and contrast enhancement. Pancreatic duct is not dilated. No evidence of calcification is seen. Peripancreatic fat planes are preserved. Spleen: It is normal in size and density values.
-Stomach & gut loops contain oral contrast & gases. There is no significant bowel wall thickening, luminal narrowing or dilatation.
It is recorded in Ex.41 that computed tomography study of upper abdomen by Dr. Narula dated 07.03.2007 that gall bladder shows partial distension at the time of examination. An intraluminal calculus measuring 25x17 mm is seen in the region of neck of gall bladder with evidence of intraluminal sludge in the gall bladder. Asymmetrical First Appeal Nos. 283 & 288 of 2012 20 wall thickening is seen - more in fundal region and means: maximum upto 8 mm. Thickened wall of gall bladder shows evidence of mild contrast enhancement. Minimal stranding of adjoining pericholecystic fat is seen. Fat planes with adjoining right lobe are not clearly defined, however no obvious focal area of altered attenuation is common bile duct is not dilated.
10. The contention raised by the complainant is that vide ultrasound reports Ex.C-39 and Ex.C-41 of Dr. Narula, there was a report regarding thickening of the walls of the gall bladder seen which could be neoplastic/due to chronic cholecystitis with diffuse fatty infiltration of liver and the radiologist having advised further investigations. The submission of the complainant is that OP nos.1 and 2 had not cared to provide any treatment to the complainant regarding thickening of the wall of the gall bladder. The complainant referred to literature Ex.C-69 under the head Acute Cholecystitis, recording that in about 90% of cases inflammation of the gall bladder is associated. Whether the stones are the cause or the effect is yet to be proved. In about 60% cases of acute cholecystitis bile culture is positive which shows bacterial cause of cholecystitis. Majority of surgeons in this region favour conservative treatment followed by elective cholecystectomy at an interval of 6 weeks to 3 months. They opine that (i) most cases of acute cholecystitis subside on conservative management without significant complications; (ii) Acute inflammatory changes obscure the anatomy and lead to First Appeal Nos. 283 & 288 of 2012 21 technical errors, if the operation is performed early without conservative management; (iii) In early stages, there is vascular congestion and vigorous inflammation and surgery may be injurious by spreading infection; (iv) Many of the patients with this disease may have associated disease which should be excluded and be treated before one ventures for cholecystectomy. Conservative management aims at creating a situation of functional rest for the gallbladder and upper gastrointestinal tract and relaxing spasm of sphincter of Oddi. This can achieve by:
1) Nothing is given by mouth. Nasogastric aspiration should be started immediately and should be continued for at least 3 to 5 days. Intravenous fluid administration should be started. In the beginning 5% dextrose saline may be started, but subsequently fluids should be changed according to the electrolyte balance of the patient. Monitoring of haemodynamic parameters and urinary output should influence fluid administration.
2) Anticholinergic drugs should be given to reduce gastric and pancreatic secretion. This will also relax the sphincter of Oddi.
3) Analgesics should be given to combat pain. Morphine and pethidine should be avoided as both these drugs cause spasm of sphincter of Oddi. Though pethidine has got relaxant effect on the smooth muscles of the G.I. tract, yet it does cause First Appeal Nos. 283 & 288 of 2012 22 spasm of sphincter of Oddi. Small amounts of Demerol may be used.
4) Antibiotics should be started immediately to control inflammatory process. Broad spectrum antibiotics are usually preferred. The broadest coverage may be achieved by the combination of ampicillin, clindamycin and aminoglycoside. But the last antibiotic is known for its toxicity. Therefore, administration of second generation cephalosporin is often practiced by many surgeons. Simple chloramphenicol also has a broad coverage on organisms of acute cholecystitis. But blood examinations should be performed regularly when this drug is used. Antibiotic should be initiated as soon as the diagnosis is made.
When temperature, pulse and other physical signs show that the inflammation is subsided, conservative treatment is continued. On the 3rd day, suppository is given to empty the bowel. Once the bowel is moved, tenderness is greatly reduced and there is disappearance of mass in the gall bladder region, gastric aspiration tube may be removed and fluids may be given by mouth. Gradually, the I.V. drip is removed. After 5 days soft fat free diet is given and gradually within a few days normal fat free diet can be recommended. An oral cholecystogram is advised 3 weeks later. First Appeal Nos. 283 & 288 of 2012 23 Cholecystectomy is advised 8 to10 weeks after the acute symptoms have subsided.
11. The forceful argument of the complainant is that no antibiotics were given by OP nos.1 and 2 to the complainant for treating the thickening of the gall bladder. The discharge report is Ex.C-44 by the OPs pertaining to the complainant on the record. There is nothing in the discharge summary Ex.C-44 that the conservative treatment was continued for 8 to 10 weeks, as per the treatment suggested in "A Concise Text Book of Surgery'. The submission of the complainant is that without providing conservative management, surgery may be injurious by spreading infection. The submission of the complainant is that acute inflammatory changes obscure the anatomy and lead to technical error without providing conservative management. The argument of the complainant is that, the OPs could not identify cystic duct and cut the portal vein resulting into brisk bleeding of complainant and thereby complainant lost blood of 1500 ml on account of above referred bleeding at the time of laparoscopic operation. The operation was converted into open surgery and then bleeding from the portal vein was controlled. The complainant argued that the OPs lacked proper skill in the matter of conducting cholecystectomy because the portal vein is located away from the CBD. The version of the complainant is that a surgeon, who could not locate the cystic and CBD cannot be said to have a requisite skill to perform the cholecystectomy with laparoscopic. He First Appeal Nos. 283 & 288 of 2012 24 referred to Gray's Anatomy 38th Edition, edited by the Editorial Board chaired by the late Peter L. Williams DSc (Lond) Ex.C-71 on the record. We have examined this literature on the record with the assistance of complainant and counsel for the OPs. This literature records Portal vein as defined on page 1603 is about 8cm long. The portal vein begins at the second lumbar vertebral level from the convergence of superior mesenteric and splenic veins, anterior to the inferior vena cava, posterior to the neck of the pancreas. OP nos.1 and 2 instead of acknowledging their lapse in having cut the portal vein due to the lack of the knowledge of the anatomy, they tried to cover up the same by disclosing to the daughter and the wife of the complainant that the patient suffered from 99% carcinoma of gall bladder which had caused complications. In this regard, he drew our attention towards the plea taken up by the OPs in the written reply that, "the patient had majority of difficulties due to long standing (seven years) large (25x17mm) neglected stone in calot's triangle area. This stone had invaded into CBD (Mirizzi's Syndrome) as found at the time of the operation and had caused xanthogranulomatous type of cholecystitis (histopathology report) which mimic cancer of gall bladder. It was only because of the proper technique, experience and skill of the OPs that operation could be completed despite various difficulties and bleeding from portal vein of the patient. There was pre existing CBD stricture. If the OPs caused stricture, it cannot form in 15 days. There was no First Appeal Nos. 283 & 288 of 2012 25 declaration of cancer after open surgery, but of course, pre- operatively cancer was doubted on CT scan. The complainant further maintained that vide Ex.C-44 "....cystic duct lifted with silk thread and gall bladder separated from liver bed, fund first technique, to reach near porta hepatic, but a duct like stricture was found to be entering porta hepatic from lower part of pouch and CBD could not be identified separate from the pouch. Hartman pouch excised partially alongwith stone leaving behind a cuff of pouch. Cystic duct opened and probe could be passed into duodenum, but there was no ductal opening from upper end of the pouch. No other CBD like stricture could be found. No bile oozing from any other place. So a T-tube no.14F inserted into lower end of duct and pouch flap sutured over it. Haemostasis confirmed drain introduced in Morrison pouch and wounds closed and blood loss 1500 ml". T-tube inserted into lower end of duct and pouch flap sutured over it. The discharge summary stated that T-tube non-functioning, mild peritubal leakage. The complainant stoutly relied upon the testimony of Dr. P.K. Kohli expert witness, as contained in his affidavit Ex.C-37 on the record. He stated that T-tube or any other tube should have been placed in the common hepatic duct, rather in the common bile duct, because the purpose of such a tube is to drain the bile above the obstruction, thereby bye-passing the obstruction. This explains why a T-tube remained non-functional, while there was peritubal leakage and drainage in the subhepatic drain, as mentioned in the discharge First Appeal Nos. 283 & 288 of 2012 26 slip. The placement of the T-tube at a wrong place shows the lack of skill on the part of OP surgeon, which added to the complications already having occurred because of the cutting of the portal vein and the performance of the sub total cholecystectomy and therefore, he had to be referred to Govt. Rajindra Hospital Patiala for cholangiogram. The complainant also attributed negligence on the part of OPs on account of placement of T-tube in common bile duct instead of CHD, which further complicated the health of the complainant. The OPs contended in the reply that T-tube functioned normally and bile leakage through drain tube was duly controlled and it did not affect the working of the liver and hence there was not much bile leakage. The discharge card records the summary of OP nos.1 and 2 against this fact. Even in the discharge slip issued by Rajindra Hospital, recording the date of admission, as 15.03.2007 and his discharge date, as 23.03.2007. It is recorded that the patient was admitted for cholangiogram with C/C of loose motion. It is noted, "patient managed conservatively responded well and T-tube cholangiogram done that shows proximal obstruction of CBD. So, patient was referred to PGI Chandigarh surgical ward for ERCP and further management. The reliance of complainant is also on this point, in proving negligence of OP nos.1 and 2 that they had not arranged the services of Gastroenterologist at the time of operation, otherwise the placement of T-tube in common bile duct in place CHD could not have been committed by OP nos.1 and 2 and the First Appeal Nos. 283 & 288 of 2012 27 complainant would have been saved from the complications in the matter of bile leakage. We have examined the discharge slip Ex.C- 45 issued by Rajindra Hospital Patiala on the record as well.
12. The complainant further maintained that for want of facility of ERCP, he was referred to PGI Chandigarh for this purpose and his further management, vide discharge slip Ex.C-45. The OPD card of complainant was prepared at PGI Chandigarh on 23.03.2007, vide Ex.C-46, the OPD card of the complainant was maintained in the PGI Chandigarh on 23.03.2007, when the complainant was discharged from Rajindra Hospital Patiala. The report of Radiologist of PGI Chandigarh is Ex.C-75 on the record pertaining to T-tube cholangiogram. It was observed, interalia, ".... on injecting contrast, there is opacification of only distal CBD and duodenum. Proximal CBD, CHD, inter hepatic biliary ducts are not opacified. Imp: Descriptive". The complainant also adverted to the report of ERCP dated 03.04.2007 Ex.C-31 by PGI Chandigarh on the record. We have also examined the report of ERCP by PGI Chandigarh. It has recorded the final diagnosis as "Narrowing of CBD with bile leakage". Dr. Sunil Taneja CW5 proved that there is an evidence of narrowing and leakage of contrast at the entry of T- tube guide wire not negotiable and narrowing is present above the opening of the T-tube. The complainant argued that the above referred complications took place, because OP nos.1 and 2 were deficient and negligent in placing the T-tube in the common bile duct First Appeal Nos. 283 & 288 of 2012 28 instead of common hepatic duct of the complainant, which caused into biliary fistula with cholangitis after cholecystectomy, as noted in the discharge summary of the complainant issued by the Department of Surgical Gastroenterology, Sir Ganga Ram Hospital New Delhi. It is recorded in the record produced by CW1 Piara Singh Medical Records Supervisor of Sir Ganga Ram Hospital, New Delhi that, "ERCP showed partial stricture Rt. main hepatic duct and CHD, prominent Rt. sided intra hepatic biliary radicals and dilation of Lt. sided intra hepatic biliary radicals. OP nos.1 and 2 had not taken the precaution to identify the stricture in Rt. main hepatic duct at the time of this operation and left sided intra hepatic biliary radicals because either he was oblivious of the same or knowing about the same negligently placed the T-tube in the CBD. For this, the complainant had to be operative with Roux-en-y left hepaticojejunostomy. Vide Ex.C-2, the report of Radiologist Dr. Arun Gupta of Sir Ganga Ram Hospital, he opined that PTBD could be planned, but that was technically difficult and risky. Dr. Anil Arora, Hepatologist, vide Ex.C- 3 dated 18.04.2008 advised Biliary Stenting, which was also difficult as already biliary passage had been created of the complainant. Again stricture in Rt. hepatic duct was reported as would appear from Ex.C-6 dated 21.01.2008 prepared by Dr. Arun Gupta of Sir Ganga Ram Hospital which caused obstruction in right hepatic duct and bile leakage continued for more than about 4-5 months even after the operation, as can be seen from Ex.C-4, the OPD slip dated First Appeal Nos. 283 & 288 of 2012 29 20.09.2008 prepared in Sir Ganga Ram Hospital, New Delhi. Even the expert witness Dr. P.K. Kohli, CW8 has stated in his sworn affidavit Ex.C-37 that the patient still stands the risk of stricture formation, leakage, jaundice and chronic liver disease and their consequences. The complainant also made reference to Ex.C-70 an extract from Surgery of the Liver, Biliary Tract and Pancreas, Fourth Edition, Volume 1, Editor-In Chief by leslie H. Blumgart, BDS, MD, DSc (Hon), FACS, FRCS (ENG, EDIN), FRCPS (GLAS) and under the head Complications of Cholecystectomy, it is provided that symptoms may develop in the immediate postoperative period as a result of direct complications of the surgery or anesthetic. These symptoms include hemorrhage, bile, leakage, hematoma, abscess and injury to the bile ducts.
13. Under Table 39.2 given under the head Postcholecystectomy problems classification of cause of Postcholecystectomy symptoms has been given as under:-
Biliary CBD stones, Benign stricture, Tumor, Biliary enteric Fistula, Sump syndrome, Papillary disorder, Dysfunction, Primary stenosis, Secondary Stenosis, Periampullary problems, Postsurgical Immediate Trauma, Hemorrhage, Biliary peritonitis, Early Hematoma, Bile collection, Abscess, Fistula, Late Cystic duct stamp problem, Neuroma, Stone, Inflammation.First Appeal Nos. 283 & 288 of 2012 30
14. The complainant submitted that the root cause of Biliary Fistula with Cholangiolitis was due to the injury to the CBD and CHD caused by OP No.1 during the operation on account of carelessness handling of the operation. The injury caused to the CBD and CHD is clarified by CW8, Dr.P.K. Kohli, Sr. qualified and experienced surgeon of 30 years standing working as consultant in surgery at Artemis Health Institute, Gurgaon having an extensive experience of open as well as laparoscopic cholecystectomy and having imparted structured training in laparoscopic surgery to over 400 surgeons under approval of Indian Medical Association and Indian Association of Gastro-intestinal Endoscopic Surgeons in his sworn affidavit, Ex.C37 that the likely mode of injury is that the surgeon retracts the gall bladder very strongly and in the wrong direction, pulling the CBD in line with the cystic duct, exposing the posteriorly placed portal vein. While dissecting/encircling the CBD (thinking it to be cystic duct, and the portal vein to be CBD), the portal vein may be injured. The portal vein injury calls for immediate conversion, resort to immediate and effective packing or a Pringle's manoeuvre (in which a finger is inserted in the Foramen of Winslow, anterior to which lie the CBD, Hepatic Artery & Portal vein, and these vessels are pressed between the finger and the thumb), which controls the ongoing bleeding. The blood is then sucked, area washed & cleaned, control on the vessel achieved by vascular clamps while removing the finger from the Foramen. If haphazard or panicky First Appeal Nos. 283 & 288 of 2012 31 attempts are made to control such a bleeding, one is likely to lose lot of blood and is liable to cause injuries to the important strictures lying nearby, including the CBD, CHD (Common Hepatic Duct), Right hepatic duct, hepatic artery & even inferior vena cava with disastrous results. It is further disclosed by the above expert witness in his aforesaid affidavit that it appears that during attempt to control brisk bleeding from the injured portal vein other injuries were caused to the common hepatic duct and the right hepatic duct. The records suggest that the injury to the common hepatic duct and right hepatic duct was partial in nature and not a complete transaction. Vide C-44 discharge slip; the complainant was referred to Gastroenterologist for further management/surgery, because the open surgery was not successful. Vide Ex.C-45, the discharge summary it is noted, interalia, "drain in Morison's pouch draining 200 ml bile per day. T- tube non functional mild peritubal leakage". Ex.C-45, the discharge slip of the Rajindra Hospital Patiala, in the case summary, it is recorded, "patient admitted in surgical ward as already operated case from outside for cholelithiasis (laparoscopic cholecystectomy converted into open cholecystectomy with suturing of portal vein and sub total cholecystectomy with T-tube placement and drain). Patient admitted with c/c of loose motions at Rajindra Hospital Patiala. Patient managed conservatively. Respondent well and T tube cholangiogram done that shows proximal obstruction of CBD. So patient is referred to PGI Chandigarh surgical ward for ERCP and First Appeal Nos. 283 & 288 of 2012 32 further management". For management of the bile leakage but T- tube could not be removed as there was a leakage of bile at the rate of 300-400 per day, as per the record of the Rajindra Hospital, Patiala and it continued for four months continuously and uninterruptedly for more than about two years, which proved the medical negligence of OPs. The complainant contended that due to failure of laparoscopic surgery, cutting his portal vein and resorting into open surgery and causing injury and thereby he suffered a lot by moving to different hospitals for getting relief by spending the lot of money thereon. He has suffered physical disability on account of the above said medical negligent act of OP nos.1 and 2 and also retained foreign bodies in his body for a long time, as detailed in Ex.C-142. The holes caused in the body for inserting drain pipe and T tube and U tubes have not healed properly and bile, fluid and pus continued to leak from one or the other hole, which caused a lot of physical pain, suffering, mental agony, trauma, torture and restlessness every day to him. Even after major surgery, he retained foreign bodies in his body i.e. drain pine for 90 days, T tube for 77 days, U tube for 3 months, Urine tube for about 70 days and Kanula for 45 days.
15. The forceful submission of the OPs in this case that no negligence on the part of OP nos.1 and 2 have been established by the complainant. The contention of counsel for the OPs is that complainant suffered from 7 years old large 25x17mm neglected First Appeal Nos. 283 & 288 of 2012 33 stone in calot's triangle area, which invaded into CBD (Mirizzi's syndrome) having caused Xanthogranulomatous type of cholecystitis, which minced cancer of gall bladder. OP no.1 asked for ultrasound report of the gall bladder and accordingly the complainant had obtained the report, Ex.C-39 from Dr. Narula's X-ray, Ultra sound and C.T. Scan center, Ex.C-41 on 07.03.2010 and only thereafter, OP no.1 had planned for the laparoscopic surgery on complainant on 08.03.2007. It was further submitted by the OPs that the thickening of the wall of the gall bladder was not a problem in proceeding with the laparoscopic cholecystectomy. In this regard, he made a reference to Maingot's Abdominal Operations 11th edition edited by Michael J. Zinner, MD, FACS Surgeon, under the head acute cholecystitis on page 857, it is stated that "Acute cholecystitis may be treated successfully by laparoscopic cholecystectomy. Intervention during the early phase reveals an inflamed, thick-walled, tensely distended organ. To gain adequate traction on the gallbladder with the grasping forceps, it may be necessary to decompress the gallbladder by aspirating its contents with a large gauge needle. The OPs also relied upon medical literature of Shackelford's surgery of the alimentary tract sixth edition by Charles J. Yeo, MD, Samuel D.Gross Professor and Chair Department of Surgery, Thomas Jefferson University, Philadelphia, Pennsylvania, under the head Partial Cholecystectomy, it is stated, "on rare emergent situations, a First Appeal Nos. 283 & 288 of 2012 34 cholecystectomy may become hazardous due to inability to identify most of the gallbladder and the triangle of calot, excessive bleeding (portal hypertension, cirrhosis), or patient instability. In these circumstances, the less desirable partial cholecystectomy may be performed." The counsel for the OPs also made a reference to the affidavit Ex.C-37 of Dr.P.K. Kohli CW8 to the effect that it was good that the surgeon converted to an open surgery. It is further submitted that in para 17(e) of the affidavit, it is stated that it appears that during attempts to control the brisk bleeding from the injured portal vein, injuries were caused to the Common Hepatic Duct and the Right Hepatic Duct. Doing subtotal cholecystectomy under the circumstances is acceptable. The OPs justified their conversion to open surgery on account of above referred circumstances. The OPs further relied upon the evidence of Dr. P.K.Kohli that injury to bile duct and right hepatic duct is partial in nature and not a complete transaction. The submission of counsel for the OPs is that there was no lack of care and skill on the part of OP nos.1 and 2 in performing partial cholecystectomy with the help of laparoscopic cholecystectomy and then having converted the same into open surgery. OPs placed reliance upon the law laid down in "Mamta Sridhar Iyer & Anr. Vs. Kunjannam Poulose (Dr.) & Anr. reported in 2008 (II) CPJ-411" by Hon'ble Maharashtra State Consumer Disputes Redressal Commission, Mumbai that when a doctor faced a case of emergency, it was a sort of S.O.S. call and First Appeal Nos. 283 & 288 of 2012 35 emergency of the patient prompted doctor OP no.1 to take emergent steps to save the life of patient and to relieve the patient from unbearable pain. It is primary duty to stop profuse bleeding, which otherwise would have caused the death of the patient, hence there was no breach of duty committed by OP nos.1 and 2 and, therefore, the complainant cannot ask for any compensation by attributing any negligence to the OPs. The counsel for the OPs further argued that negligence consists of three ingredients i.e. 'duty', 'breach' and 'resulting damage'. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of medical profession.
16. Having considered the written submissions of both the sides on the record and their submissions before us, we find that the point for adjudication is whether there is any medical negligence on the part of the OP nos.1 and 2 in this case or not. We are of this view that Dr.S.P.S. Narula, Radiologist gave the report that impression study reveals fatty infiltration of liver with cholelithiasis with significant thickening of the walls of the gall bladder with sludge in the gall bladder. He advised liver function tests & CT scan for evaluation of the gall bladder. His next report is Ex.C-41 on the record dated 07.03.2007 recording this fact that thickened wall of the gall bladder shows evidence of mild contrast enhancement. Minimal stranding of adjoining pericholecystic fat is seen. Fat planes with adjoining right lobe are not clearly defined, however no obvious focal area of altered attenuation is common, bile duct is not dilated. The First Appeal Nos. 283 & 288 of 2012 36 OP nos.1 and 2 had not bothered to garner to complete the procedure and rather relied upon this half-hearted diagnosis only. The OPs took the plea that complainant suffered from difficulty due to 7 years old large 25x17mm neglected stone in calot's triangle area, which had invaded into CBD (Mirizzi's Syndrome) having caused Xanthogranulomatous type of cholecystitis, which mimicked cancer of gall bladder. If the OPs suspected any cancer of the gall bladder and there was inflammation of gall bladder, then there was no emergent situation for them to resort to this operation forthwith. It was imperative for them to have applied conservative treatment followed by elective cholecystectomy at an interval of six weeks to three months, as per the believers of this treatment, as referred to in Ex.C-69 explaining that most cases of acute cholecystitis subside on conservative management, without consequent complications (ii) Acute Inflammatory changes obscure the anatomy and lead to technical errors, if the operation is performed early without conservative management; (iii) In early stages there is vascular congestion and vigorous inflammation and surgery may be injurious by spreading infection; (iv) Many of the patients with this disease may have associated diseases, which should be excluded and be treated before one ventures for cholecystectomy. Even in Maingot's Abdominal Operations 11th edition edited by Michael J. Zinner, MD, FACS Surgeon referred to by the learned counsel for the OPs, it has been observed that under the head Acute Cholecystitis, that if First Appeal Nos. 283 & 288 of 2012 37 the anatomy is unclear, cholangiography must be performed before clipping or dividing tissue. When acute inflammation has been present for several days or weeks before operation, the pericholecystic tissue planes may be obliterated by thick, "woody" tissue that is difficult to dissect bluntly. The surgeon may therefore need to convert to open cholecystectomy, if the minimal access approach is initially attempted during this sub acute phase". No cholangiography was done by the OPs before performing the operation and therefore, it led to the cutting of the CBD/CHD and portal vein of the complainant that too being tense, because of the brisk bleeding having taken place from the portal vein. It has been stated by CW8 Dr. P.K. Kohli, in his sworn affidavit, Ex.C-37 in para 7 that the portal vein injury during laparoscopic surgery is very rare because the portal vein lies behind the common bile duct. The portal vein injury calls for immediate conversion, resort to immediate & effective packing or a Pringle's manoeuvre, which controls the outgoing bleeding. If haphazard or panicky attempts are made to control such a bleeding, one is likely to face loss of blood and is liable to injuries to the important structures lying nearby, including the CBD, CHD, right hepatic duct, left hepatic duct, hepatic artery & even inferior vena cava, with disastrous results.
17. We further conclude after appraisal of record that no blood was arranged by the OP nos.1 and 2 before conducting the surgery on the complainant. Without arrangement of blood, any First Appeal Nos. 283 & 288 of 2012 38 complication could occur at the operating table to the patient and the arrangement of blood before operating the patient is an essential element. Undisputedly, there was loss of 1500 ml blood on the operation table of the complainant and blood had to be arranged at the asking of OP nos.1 and 2 for arranging the blood at that juncture, which tantamounts to negligence of OP nos.1 and 2. In such type of cases, when the attendants of the complainant were present and available there and they had not signed the consent form for open surgery and hence there was no informed consent for open surgery. The complainant, his wife and daughter had all signed informed consent Ex.RX/1 for DVL, laparoscopic cholecystectomy only, when the OPs had already obtained the consent, even before resorting to open surgery. Even the consent form Ex.RX/1 appears in different hand and it also raised doubt as to whether there was any genuine informed consent given by the family members of the complainant for converting to open surgery.
18. The OPs took the plea that large stone was impacted in the neck of gall bladder completely obliterating calot's triangle stone, which invaded into adherent CBD (Mirizzi's Syndrome), thus making dissection impossible in that area. On the other hand, in ultrasound report dated 07.03.2007 Ex.C-41, it was remarked that common bile duct was not dilated and hence any injury to CBD and CHD is ruled out. The discharge card Ex.C-44 points out by recording that T-tube was not functioning and there was mild peritubal leakage, First Appeal Nos. 283 & 288 of 2012 39 which could be possible only in case there was an injury to the common bile duct of the patient. The OP nos.1 and 2 recorded this fact in the operation notes that common bile duct could not be identified separate from the pouch. No other common bile duct stricture could be found. No bile oozing from any other place. There is no explanation with OPs as to how T-tube was inserted into lower end of the duct and pouch and why the same was not placed in the CHD, where there was the point of obstruction. It is proved that injury to common bile duct was caused during the operation. Dr. Sunil Taneja of PGI Chandigarh, vide Ex.C-31, ERCP report deposed that "from the films and the report, we can see that there is injury to bile duct probably in the mid region". In the ERCP report, Ex.C-31, the impressions have been noted "narrowing of CBD with bile leakage". Even CW8 Dr.P.K. Kohli in his sworn affidavit has deposed that it appears that during attempts to control the brisk bleeding from the injured portal vein, injury was caused to common hepatic duct and right hepatic duct. The complainant relied upon law laid down by our own State Commission in "Smt. Gurmit Mahal Versus Chauhan Nursing Home and Another reported in 1998 JRC-314, wherein it has held that a doctor can be held guilty of medical negligence only when he falls short of the standard of reasonable medical care. A doctor cannot be found negligent merely because in a matter of opinion, he made an error of judgment. When there are genuinely two responsible schools of thought about management of a clinical First Appeal Nos. 283 & 288 of 2012 40 situation, the court could do no greater disservice to the community or the advancement of medical science that to place the hall mark of legality upon one form of treatment. It was held in this authority that it was established in operation notes that it was common bile duct, which was mended. A type of bye pass was provided in the common bile duct connecting the intestines. This clearly established that the common bile duct was cut during the operation of removal of gall bladder, which was conducted by Dr. Niraj Aggarwal. It has been held in para 19 in this cited judgment that OP doctor had cut the common bile duct, which per se amounts to negligent act. In the performance of laparoscopic surgery, care, caution and specialist skill is required. As far as care is concerned, it may also include post or past operation in the matter of treatment of the patient. No doubt, the drain was provided, while closing the wound by the doctor, but that per se will not absolve him from his negligent act of cutting the common bile duct. It is only on account of cutting the bile duct that the excessive leakage was expected and instead of converting the operation to open surgery. The patient required specialized treatment in specialized hospital due to injury to common bile duct, which was a negligent act of the doctor. The Apex Court has also held in "Nizam Institute of Medical Sciences Vs. Prasanth S. Dhananka & ors." reported in 2009(II) CPJ (SC)61 that complete investigation prior to operation not carried out proved. Paraplegia resulted due to cutting of blood supply to spinal cord as a result of First Appeal Nos. 283 & 288 of 2012 41 operation to remove tumour proved. Attending doctors seriously remiss in not associating neurosurgeon at pre-operative and at stage of operation. Paraplegia set in due to negligence proved. The OPs mainly relied upon law laid down in "Kusum Sharma & Ors. Vs. Batra Hospital & Medical Research Centre & Ors." reported in 2010(2) CPC (SC)-15 by the Apex Court that negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. We find that injury to CBD of complainant took place during the operation conducted by OP nos.1 and 2. Dr. Sunil Taneja CW5, vide Ex.C-31 has proved this fact that from the films injury proved to bile duct was probably in the mid region in ERCP report Ex.C-31. The impression narrowing of CBD with bile leakage has been recorded. Dr. P.K. Kohli CW8 has also proved that during attempt to control the active bleeding in the portal vein of the complainant, injury was caused to common hepatic duct and right hepatic duct of the complainant. The District Forum concluded that the T-tube or any tube should have been placed in the common hepatic duct rather than in common bile duct to drain the bile and it was wrongly placed by OP nos.1 and 2 and it remained non-functional, while there was peritubal leakage and drainage in the sub hepatic duct. It proved that injuries to common bile duct, common hepatic duct and right hepatic duct were caused during operation. The plea of the OPs is that on account of Mirizzi's syndrome and cancer of gall bladder, their action is justified, First Appeal Nos. 283 & 288 of 2012 42 as they sought support from the statement of CW8 Dr. P.K. Kohli, as he stated that diagnostic laparoscopic is one of the further investigations done when there is suspicion of cancer of gall bladder. The above expert witness found that there was no evidence of Mirizzi's syndrome or cancer of gall bladder on the basis of pre operative investigations shown to him. Dr. S.P.S. Narula, M.D. Radiodiagnosis in his affidavit Ex.C-38 proved that complainant underwent an ultrasound examination for gall bladder and pancreas and he conducted the scan and study revealed fatty infiltration of liver with stone in the gallbladder with thickening of the walls of gallbladder and evidence of sludge in the gallbladder. There was no obvious stone seen in visible part of common bile duct. No obvious dilatation of intra-hepatic biliary channels could be seen at the time of examination.
19. We find that the complainant was admitted with OP nos.1 and 2 upto 15.03.2007, but they have not joined any Gastroenterologist to control the bile leakage of the complainant. It appears that OP nos.1 and 2 have not taken proper care of the problem of bile leakage and the same stood aggravated necessitating his referring to Rajindra Hospital Patiala, because they were not able to manage him. It all indicates that OP nos.1 and 2 took no proper care and skill in conducting the operation of gallbladder of the complainant, otherwise the portal vein injury and common bile duct injury to the complainant could have been First Appeal Nos. 283 & 288 of 2012 43 avoided. Dr. P.K. Kohli CW8 stated that portal vein injury is serious surgical accident and it is a life threatening and a successful handling of this injury reflects competence of the surgeon, who operated the patient. The District Forum Patiala rightly repelled this submission of OPs that gynecologist was second surgeon for giving second opinion, that they only converted into open surgery when they found themselves confused having cut the portal vein of the complainant and they further caused injury to CBD on account of non-identification of anatomy by the OPs. OP nos.1 and 2 also wrongly placed T-tube in lower part of CBD instead of CHD and hence it remained non-functional providing no help to the complainant in distress to drain out the bile. OP nos.1 and 2 also failed to avail the services of physician, radiologist, gastroenterologist or biliary surgeon before starting the operation, when the circumstances led to that point of complications. The above referred negligent act of OP nos.1 and 2 insisted the reference of the complainant to Rajindra Hospital Patiala and it further referred the complainant to PGI Chandigarh and then for further treatment to Sir Ganga Ram Hospital at New Delhi. The complainant was diagnosed for post cholecystectomy biliary fistula and stricture of left hepatic duct and the operation of Raux en y left hepaticojejunostomy was performed on 02.05.2007, which started at 03:40 PM and lasted upto 11:30 PM. The complainant suffered the complications and problems due to above injuries caused to the First Appeal Nos. 283 & 288 of 2012 44 portal vein, CBD and by wrong placement of T-tube by OP nos.1 and 2 in the above half hearted operation conducted by operating surgeon.
20. The order of the District Forum holding OP nos.1 and 2 to be medical negligent is justified for above referred reasons and needs no interference in first appeal no.288 of 2012 by us.
21. On the point of as to whether the matter needs to be referred to competent Civil Court due to complex matter, we are unable to agree with the contention of the OPs in this case. The Hon'ble National Commission in "Shiv Kumar Agarwal versus Arun Tandon and another" reported in 2007(2) CLT 287 held that case involves complicated questions of act and law and will need expert evidence, which is not possible in the summary proceedings adopted by the Consumer Fora repelled - Consumer Forum which is headed by Senior Judicial Officers, are capable of dealing with even complex questions. When both the parties have completed their evidence, then it is not proper to relegate the matter to the Civil Court and the District Forum should have decided the matter. These points could be decided on the basis of documents on the record as the District Fora are headed by senior officers of the rank of the District Judges and High Court Judges and they are fully competent to examine the complicated questions. A reference can be made to the judgment of the Hon'ble Supreme Court in the case of "Dr. J.J. First Appeal Nos. 283 & 288 of 2012 45 Merchant and others Vs. Shrinath Chaturvedi" reported in 2002 (III) CPJ-8 (SC) that "the State Commission and District Forum are headed by retired High Court Judges and officers of District Judge level and in our view, this is not such a case which cannot be decided by the 'Consumer Fora' after obtaining evidence and if need be after getting an expert opinion". The District Forum has rightly repelled the submission of OPs that matter can be adjudicated by Civil Court only. We concur with the findings of the District Forum on this point.
22. The complainant has now filed the first appeal no.283 of 2012 as appellant for enhancement of the amount of compensation. The complainant has contended that he has suffered a lot and inadequate compensation has been awarded to him by District Forum. We find that complainant has pleaded in the complaint that he be awarded the compensation of Rs.15,40,000/-. The complainant prayed for compensation of Rs.4 lakhs for actual expenses and for future costs for five years for follow up treatment. Rs.10 lakhs for irrecoverable and incurable injury by cutting of portal vein of the complainant and Rs.90,000/- as loss of leave encashment and Rs.50,000/- as costs of litigation. The District Forum has rationally awarded the compensation to the complainant as detailed in its order both under pecuniary and non pecuniary counts covering the reasonable expenses incurred by the complainant and to be incurred by the complainant inclusive First Appeal Nos. 283 & 288 of 2012 46 compensation for loss of leave encashment. When tested on the evidence on the record, we find that the order of the District Forum on the amount of compensation is quite reasonable. We do not find any illegality or infirmity in the order of the District Forum Patiala on the point of quantum of compensation awarded by it to the complainant. We find that the District Forum has already awarded adequate compensation to the complainant alongwith interest @10% per annum from the date of filing the complaint till its realization. We do not find any valid ground to further raise the compensation to the complainant against the OPs in this appeal.
23. As a result of our above discussions, by upholding the order of the District Forum Patiala dated 23.12.2011, we dismiss the first appeal no.283 of 2012 filed by Sukhdev Raj Kaushal complainant, now appellant of this appeal for enhancement of compensation.
24. Similarly, we also dismiss the fi rst appeal no.288 of 2012 filed by the OPs, now appellants of this appeal.
25. The appellants of First Appeal no.288 of 2012 had deposited an amount of Rs.25,000/- with this Commission, at the time of filing the appeal. This amount be remitted by the registry alongwith interest, which accrued thereupon, if any, to Sukhdev Raj Kaushal complainant, now respondent in this appeal within 45 days. First Appeal Nos. 283 & 288 of 2012 47 Remaining amount shall be paid by the OPs, now appellants of this appeal to the complainant, now respondent in this appeal as per the order dated 23.12.2011 of District Forum Patiala.
26. Arguments in both the appeals were heard on 03.06.2015 and the orders were reserved. Now the orders be communicated to the parties.
27. The above appeals could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (VINOD KUMAR GUPTA) MEMBER (H.S. GURAM) MEMBER June 11, 2015.
(MM)