National Consumer Disputes Redressal
M. K. Chowdhury vs Max Super Specialty Hospital & 4 Ors. on 27 November, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 189 OF 2014 1. M. K. CHOWDHURY R/o B-2, South Ganesh Nagar, DELHI - 110092. ...........Complainant(s) Versus 1. MAX SUPER SPECIALTY HOSPITAL & 4 ORS. Through its Chairman/CEO, 2, Press Enclave Road, Saket, NEW DELHI - 110017. 2. Shri Analjit Singh, Chairman & CEO, Max Super Specialty Hospital, 2, Press Enclave Road, Saket, NEW DELHI - 110017. 3. Dr. Vikas Panwar, Max Super Specialty Hospital, 2, Press Enclave Road, Saket, NEW DELHI - 110017 4. Dr. Vivek Sachan, Max Super Specialty Hospital, 2, Press Enclave Road, Saket, NEW DELHI - 110017. 5. Dr. Vivek Saxena, Max Super Specialty Hospital, 2, Press Enclave Road, Saket, NEW DELHI - 110017. ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER
For the Complainant : Mr. Asit Kumar Roy, Advocate For the Opp.Party : Mr. Sajad Sultan, Advocate
Ms. Swekcha, Advocate
Dated : 27 Nov 2017 ORDER
JUSTICE V.K.JAIN, (ORAL)
The complainant was admitted to Max Super Specialty Hospital at Saket, New Delhi on 15.11.2013, with complaints of Epigastric pain for last 3 days relating to right Hypochondrium, which was associated with history of one episode of vomiting and fever for one day. He had a past history of Diabetes Mellitus Type-II and Coronary Artery Disease, post PTCA. He was optimised for Laparoscopic Cholecystectomy with abdominal drain, which was done under GA on 17.11.2013. He was discharged on 19.11.2013.
2. On 23.11.2013, the complainant again went to respondent No.3 Dr. Vikas Panwar with complaint of pain in the abdomen.
3. On 21.12.2013, the complainant consulted with one Dr. D Sengupta of Max Hospital who advised a whole abdomen ultrasound to him. The said ultrasound of the whole abdomen was done on 23.12.2013 and revealed a 1.5 cm x 1.8 cm sized thin walled anechoic cyst in the periportal region. A 4.2 cm x 5.9 cm sized cystic mass with irregular solid tissue was noted in the GF fossa region. However, no gall bladder was seen in the aforesaid ultrasound report.
4. After some time, the complainant consulted one Dr. Ashwani Kumar of Max Hospital who advised a CT scan. The said CT scan was done on 7.4.2014. As per the report of the CT scan, there was a fluid density lesion at the junction of segments 5 & 8 measuring 2 cm in diameter, likely to be a simple cyst. A calculi was also seen in the distal body region. On 10.4.2014, the fluid collection was drained under ultrasound guidance and total 40 ml of green fluid was aspirated.
5. The allegation of the complainant is that his gall bladder was not completely removed by the doctor who performed the surgery on him and his liver was also damaged on account of the negligence of the operating doctor. This is also his case that MRCP and ERCP should have been done before draining fluid from the gallbladder area. Alleging aforesaid negligence on the part of the OPs, the complainant is before this Commission seeking compensation etc.
6. The complaint is resisted by the OPs who have denied any negligence on their part in the treatment of the complainant. It is alleged in the written version filed by the OPs that the complainant underwent USG followed by MRCP and was diagnosed as a case of Empyema Gall Bladder with Calculus Cholecystitis which develops when the main opening to the gallbladder, called cystic duct, gets blocked by a gallstone or by a biliary sludge. It is further stated in the written version that preoperative ultrasound had shown multiple gallbladder calculi with peri-cholecystic fluid collection and the finding of the MRCP had suggested of Gall-stones with cholecystitis. He was advised Laparoscopic Cholecystectomy Surgery with abdominal drain placement under general anaesthesia implying removal of infected gallbladder along with the stone, since such a gallbladder has infection and puss. The laparoscopic cholecystectomy with abdominal drain placement was done on 17.11.2013 and he was discharged in stable condition on 19.11.2013.
7. It is also stated in the written version filed by the OPs that since the complainant had Empyema gallbladder, with dense adhesions and gangrenous changes at Calot's triangle, separate identification and ligation/clipping of cystic duct and cystic artery was not possible. Therefore, laparoscopic stapler was applied, to avoid any common bile duct injury and abdominal drain was placed, which indicated that there was no bile duct injury and the procedure was successful and uneventful.
8. It is pointed out that in the USG report dated 23.12.2013, there is no mention of any damage of the liver and CECT and pelvis report mentioned fluid density lesion at the junction of segments 5 and 8 likely a simple cyst which was very much present before the surgery, as would be evident from the MRCP report and the said cyst was not a consequence of the cholecystectomy.
9. It is also alleged that pre-operative ultrasound report and intra-operative findings were consistent with presence of peri-cholecystic collection and post-operative ultrasound and CT scan were suggestive of collection of fluid in gallbladder fossa, which was due to prior infection.
10. It is further stated that when the complainant again visited the hospital on 9.4.2014, his ultrasound guided aspiration of fluid from gallbladder bed was done on 10.4.2014. He had an episode of vaso-vagal attack which causes a rapid drop in heart rate and blood pressure and may occur in a person of any age post-aspiration procedure. The complainant was managed in the emergency and responded to the treatment. It is also claimed that having previous history of CAD and PTCA, the complainant was susceptible to such an attack.
11. The OPs have also denied the allegation that the surgery on the complainant was performed by some junior doctors. It is stated that he was operated by OP-3 who was assisted by OP-4 during the said procedure.
12. No expert evidence has been led by the complainant to prove the alleged negligence on the part of the OPs in his treatment. Neither any affidavit nor any opinion from a doctor or a hospital has been filed to prove the alleged negligence.
13. When this matter came up for hearing for 20.9.2016, it was agreed between the parties that Max Super Specialty Hospital shall constitute, at its own cost, a Medical Board, to examine the entire record relating to the treatment of the complainant in the aforesaid hospital and shall report to this Commission as to whether there was any negligence in the treatment of the complainant in the said hospital or not. The Board was to comprise of three senior doctors and none of the doctors associated with the treatment of the complainant was to be a member of the Board. The Board was also to give an opportunity of hearing to the parties, before submitting its report to this Commission.
14. In compliance with the aforesaid consent order, a medical board comprising Dr. Kamal Fotedar, MD, Director Anaesthesia, Dr. Anil Sharma, MS, FICS, FRCS and Dr. Sonia Dhall, MBBS, MD was constituted and a report dated 26.12.2016 was submitted to this Commission. The aforesaid report to the extent it is relevant, reads as under:-
"'Observation:
This medical board is of the view, that care of patient was treated with due diligence during his stay in Max Hospital and subsequent follow up. The operation was performed by Dr Vikas Panwar as is evident from operation theatre notes. There was no injury to liver caused by operation. There is no evidence of liver injury according to medical records. Patient was having altered liver functions before operation, possibly because of infection in biliary system which are reinforced by lab reports showing raised TLC, fever, uncontrolled diabetes, fever vomiting etc. Pre-operative MRl Cholangiography (MRCP) done on 16th Nov 2013 shows a cyst in liver. It is this cyst in Liver to which Mr. Chowdhury has referred to in his complaint alleging injury to liver (Ref. to brief facts of the case 5E in his complaint).
The ultrasound report of 23ml Dec 2013 (done from outside) mentions "Gall Bladder not seen". This by itself shows that gall bladder was removed."
It would thus be seen that the Medical Board did not find any negligence on the part of the treating doctors in the treatment of the complainant at Max Hospital, Saket. In the absence of an expert opinion to the contrary, there is no good reason to reject the aforesaid opinion given by three independent doctors of the hospital. Their report cannot be rejected merely because they happen to be from the same hospital since the Board comprising of doctors from the same hospital was constituted with the consent of the complainant who was also given an opportunity of hearing before the said board.
15. Even otherwise, I feel that the complainant has failed to prove the alleged negligence in his treatment. His first allegation is that his liver was damaged during the course of the procedure performed on him. However, there is no evidence of his liver having actually been damaged. Neither in the ultrasound nor in the CT scan, the liver of the complainant is stated to be injured. Therefore, it is not correct to say that the liver of the complainant was damaged during the course of the procedures performed on him.
16. The second allegation of the complainant is that his gallbladder was not fully removed, meaning thereby that the gallbladder was partly removed though whole of it ought to have been removed. However, there is no evidence to prove that part of the gallbladder still exists in his body. In fact in the ultrasound report, it is stated that gallbladder was not seen. This clearly shows that whole of the gallbladder has been removed.
17. The learned counsel for the complainant referring to the ultrasound report dated 23.12.2013 submits that 4.2 cm x 5.9 cm mass was noted in the GB fossa region which according to him shows existence of the part of the gallbladder. I however, find myself unable to agree with the learned counsel. There is no material on record to shows that the GB fossa region means whole or the part of the gallbladder. It according the learned counsel for the OPs means the region from which the gallbladder has been removed.
18. As regards, the allegation that MRCP and ERCP was not done before the puss was drained on 10.4.2014, again I find that there is no medical evidence either in the form of an opinion or in the form of literature to shows that the aspiration ought not to have been done without first undertaking MRCP or ERCP. In fact as far as MRCP is concerned, that had been done even before the gallbladder from the body of the complainant was removed. Though one Dr. Binod Samal advised ERCP and MRCP to the complainant on 12.5.2014, he has not stated that the aforesaid tests were necessary before the fluid was drained on 10.4.2014. Therefore, I do not find any merit in the aforesaid allegation of the complainant.
19. As regards collection of the mas sized 4.2 cm x 5.9 cm in GB fossa region, it is stated in the written version filed by the OPs that a small collection of this size is possible in spite of keeping a drain. There is no medical opinion or literature to show that the said collection could not been possible without any negligence on the part of the doctors in undertaking the procedures performed upon the complainant i.e. the removal of the gallbladder and drainage of the fluid at a later date.
20. For the reasons stated hereinabove, I hold that no negligence on the part of the OPs in the treatment of the complainant has been established by the complainant. The complaint is, therefore, dismissed with no order as to costs.
......................J V.K. JAIN PRESIDING MEMBER