State Consumer Disputes Redressal Commission
Baljeet Kaur vs Dhaliwal Hospital on 5 June, 2017
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.562 of 2015
Date of Institution: 29.05.2015
Order reserved on:02.06.2017
Date of Decision : 05.06.2017
Mrs. Baljeet Kaur W/o Sh. Jaspal Singh R/o 3917, Gali No.3, Kot
Baba Deep Singh, Sultanwind Road, Amritsar.
.....Appellant/complainant
Versus
1. Dhaliwal Hospital, Near Govt. Dental College, Batala Road,
Amritsar through its Prop./Partner/Managing Director/Principal
Officer.
2. Dr. U.S.Dhaliwal C/o Dhaliwal Hospital, Near Govt. Dental
College, Batala Road, Amritsar.
3. The New India Assurance Company Limited, D.O.Court Road,
Amritsar, service through its Divisional Officer.
.....Respondents/opposite parties
First appeal against order dated
29.04.2015 passed by the District
Consumer Disputes Redressal
Forum, Amritsar.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member
Smt. Surinder Pal Kaur, Member Present:-
For the appellants : Sh. Sukhandeep Singh, Advocate For respondent nos.1&2 : Sh. Mukand Gupta, Advocate For respondent no.3 : Sh. Rajesh K. Sharma, Advocate ................................................. First Appeal No.562 of 2015 2
AND 2) First Appeal No.573 of 2015 Date of Institution: 03.06.2015 Order reserved on:02.06.2017 Date of Decision : 05.06.2017
1. Dhaliwal Hospital, Near Government Dental College, Batala Road, Amritsar through its Proprietor/Partner/Director/Principal Officer.
2. Dr. Ujagar Singh Dhaliwal, C/o Dhaliwal Hospital, Near Government Dental College, Batala Road, Amritsar.
.....Appellants/opposite party nos.1 &2 Versus
1. Mrs. Baljeet Kaur W/o Sh. Jaspal Singh resident of 3917, Gali No.3, Kot Baba Deep Singh, Sultanwind Road, Amritsar.
.....Respondent no.1/complainant
2. The New India Assurance Company Limited, D.O.Court Road, Amritsar service through its Divisional Officer.
.....Respondent no.2/opposite party no.3 First appeal against order dated 29.04.2016 passed by the District Consumer Disputes Redressal Forum, Amritsar.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member Smt. Surinder Pal Kaur, Member Present:-
For the appellants : Sh. Mukand Gupta, Advocate For respondent no.1 : Sh. Sukhandeep Singh, Advocate For respondent no.2 : Sh. Rajesh K. Sharma, Advocate ................................................. 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 out of the same order dated 29.04.2016 of the District Consumer Disputes Redressal First Appeal No.562 of 2015 3 Forum, Amritsar (in short the 'District Forum), as such, they can be disposed of together. The order shall be pronounced by us in main first appeal no.562 of 2015 titled as "Mrs. Baljeet Kaur Vs. Dhaliwal Hospital & others", which has been filed by the complainant for enhancement of compensation The appellant of this appeal is complainant in the original complaint before the District Forum and respondents of this appeal are opposite parties therein and they be referred as such hereinafter for the sake of convenience.
2. First appeal no.573 of 2015 has been filed by OP nos.1 and 2 now appellants against order dated 29.04.2016 of the District Forum, partly allowing the complaint of the complainant by directing OP nos.1 and 2 to pay compensation to the complainant of Rs.1,00,000/-, besides to pay costs of litigation of Rs.5000/- to her.
The appellants of this appeal are OP nos.1 and 2 in the complaint before the District Forum and respondent no.1 of this appeal is the complainant and respondent no.2 of this appeal is opposite party no.3 therein and they be referred as such hereinafter, as arrayed in the complaint.
3. The complainant brought complaint under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the allegations that she felt trouble of dyspepsia and heaviness in her abdomen and she underwent ultrasonography on 04.01.2011 at Mata Kaulan ji Bandi Chhor Charitable Hospital Amritsar and ultrasonography report showed the impression of First Appeal No.562 of 2015 4 'cholelithiasis'. She accompanied by her husband approached OP no.1 by meeting OP no.2 in the morning of 02.02.2011. She was admitted at the hospital of OP no.1 for above referred complaints. Surgery in the evening on the same day was performed upon her by OP no.2 at OP no.1 hospital for removal of gall bladder. She was discharged on 04.02.2011, while she was still complaining of abdominal pain and distention and that too without any further ultra sonography probe. After discharge, her condition was not normal and she was feeling heaviness, distension, fever and abdominal pain and she approached OP No.2 with above problems at OP no.1 hospital, but OP no.2 ignored it on the pretext that they were post operative complications and would be set right soon. Her condition continued worsening and she again reported to OP no.2, but he assured that there was nothing wrong with her, as her surgery was successful one. He condition continued deteriorating and she approached another doctor Dr. Varinder Singh at Amritsar, who referred her to Dr. Jagdeep Singh Arora, who is known gastroenterologist. The said doctor diagnosed the biliary leakage and renal dysfunction and advised MRCP to her. She got conducted the said investigations including MRCP and the report was to the effect that there was CBD (common bile duct) injury and renal dysfunction. Said doctor advised her for hospitalization for corrective surgery for the damage to the CBD, caused by previous surgery conducted by OP no.2 at OP no.1 Hospital. The complainant again approached Dr. Varinder Singh, who after going through the said First Appeal No.562 of 2015 5 investigation reports advised her to approach PGI, Chandigarh for corrective surgery for the damage to her CBD caused by the previous surgery conducted by OP no.2 at OP no.1 hospital. She before shifting to PGI, Chandigarh approached OP no.2 at OP no.1 Hospital and showed him the investigation reports and diagnosis made there under, OP no.2 admitted his fault and damage caused to her CBD during the surgery, which further damaged her renal function and showed his helplessness. She was admitted in PGI Chandigarh on 27.02.2011 and the biliary fluids were extracted and it was again diagnosed that there was CBD injury caused by OP no.2 at OP no.1 Hospital, while conducting surgery for removal of her gall bladder on 02.02.2011. The doctors at PGI, Chandigarh after extracting the biliary fluids, managed the further collection of biliary fluids by using the PIGTAIL technique and discharged her on 11.03.2011 with the continuous follow up advice, as the corrective surgery could not be planned at that stage, because she suffered with fever, jaundice, abdominal distention at that time and kept on regular follow up with the PGI, Chandigarh, as advised. The complainant was further managed for the renal dysfunction caused by the damage to the CBD and collection of biliary fluids. The complainant was again admitted at PGI, Chandigarh on 13.05.2011 for the corrective surgery of the CBD damage. She underwent corrective surgery on 19.05.2011 at PGI, Chandigarh and was further managed for the renal dysfunction caused by the damage to the CBD and collection of biliary fluid due to the damaging surgery First Appeal No.562 of 2015 6 conducted by OP no.2 Doctor at OP no.1 Hospital on 02.02.2011. She was discharged from the PGI, Chandigarh on 06.06.2011, after the corrective surgery and management by the doctors at PGI, Chandigarh with the advice of follow up treatment. She had to face a lot of trauma and to undergo again complicated surgery due to the damaging surgery conducted by OP no.1. Besides physical suffering, she had to suffer financially due to negligent and deficient acts of OP nos.1 & 2 and the she had to spend an amount of Rs.3 lakhs on her further treatment and on medicines. She alleged deficiency in service and medical negligence on the part of OP nos.1 and 2. She prayed for refund of medical expenses of Rs.3,00,000/- spent by her on her treatment from 02.02.2011 onwards alongwith interest due thereon from the date of payment till realization, besides compensation of Rs.15,00,000/- and litigation expenses.
4. Upon notice, OP nos.1 & 2 appeared and filed written reply by raising preliminary objections that complaint is not maintainable. There is no negligence, deficiency in service and unfair trade practice on the part of OPs. On merits, this fact was admitted that the complainant was admitted in OP no.1 on 02.02.2011 with the complaint of pain in her right abdomen for the last two months quite severe one since last about 20 days and dyspepsia since last three months. She was diagnosed to be a case of acute Cholecystitis with Choliolithiasis. She was given best of the treatment, as per standard medical surgical literature by OP no.2 at OP no.1 hospital and there was no negligence on the part of the First Appeal No.562 of 2015 7 OPs, while operating the complainant. They denied that the complainant was pushed to death bed because of their negligence. In fact, the complainant was discharged in a fully satisfied condition. The complainant was diagnosed to be a case of acute Cholecystitis with Choliolithiasis for which cholecystectomy had to be carried out. However, as per standard books on the subject, there are known complications to such surgery which include bile leak, bile duct obstruction or stricture and infection and these facts were duly informed to her and her next of kin (husband) at the time of taking informed consent from them for surgery. After fully investigating and assessing her clinically and considering her suitability for surgery by Dr. A. S. Multani Ex-Prof. and Head Deptt. Of Medicines, Government Medical College, Amritsar, she was operated upon on the same day i.e. 02.02.2011. Her post operative recovery was uneventful and on 04.02.2011, she was discharged from the hospital in a satisfactory condition. At the time of discharge, she was not having any pain or distention of abdomen. However, during surgery, the Gall Bladder was found to be badly infected and her attendants were fully informed and explained about the bad adhesion with thick walled, inflamed, adherent gall bladder and full of pus, as seen on needle aspiration of the Gall Bladder. The gall bladder had acute chronic inflammation with abnormal anatomy of the bile duct. There was no need for further ultra sonography before discharge of complainant, as she never complained of any problem. As per the operation notes/ record, the cystic duct was long and was going low First Appeal No.562 of 2015 8 around the CBD. The CBD was well defined and cleared off. However, the dissection was difficult and had to be done carefully and slowly taking over one hour with uneventful completion. Cystic Artery and Duct were ligated separately. The pus removed and the badly inflamed gall bladder was shown to the husband of the complainant immediately after the surgery and the same was mentioned in the discharge card of the patient, given at the time of discharge to her. After operation, the complainant came to OP no.2 for removal of stitches only after 8 days from her discharge. At that time, wound was healed up well, but was slightly infected which was expected in such an infected gall bladder. Complainant was given necessary treatment for the same. The complainant was never put off saying that it was post operative complication for few days and shall stand corrected within a week's time. Her complaints/ problems were properly attended too. The complainant at that time never complained of any abdominal fullness, pain or fever. There was nothing wrong with the surgery and complainant after removal of stitches never met OP no.2. She never complained about her alleged deteriorating condition or about the alleged pain in abdomen, fever, distention and heaviness. Bile leakage is one of the known complications of cholecystectomy. There was bile leakage which was conservatively managed by putting a pigtail drain. There was no bile duct injury. The PGI, Chandigarh authorities drained off the bile alongwith fluid accumulated in the peritoneal cavity. The complainant never visited OP no.1 after removal of her stitches, hence there was First Appeal No.562 of 2015 9 no question of any deficiency in service or medical negligence. There was nothing wrong with the surgery performed by OP no.2 upon complainant. There is no question of any negligence or deficiency in service on the part of the OP no.2. OP nos.1 and 2 prayed for dismissal of complaint.
5. OP no.3 appeared and filed written reply by raising preliminary objection that it has been unnecessarily impleaded without any cause of action and even otherwise, keeping in view the facts and circumstances of the case and the insurance coverage, no liability can be fastened upon it, as such, the present complaint merits dismissal. Moreover, without admitting any liability on the part of OP nos.1 & 2, in this case, OP no.3 has no direct liability towards complainant. OP no.3 will indemnify insured on their satisfaction subject to policy terms and conditions. OP no.3 controverted the other allegations of the complainant and prayed for dismissal of complaint.
6. Complainant tendered in evidence affidavits alongwith documents Ex.C1 to Ex.C7 and closed the evidence. OP nos.1 and 2 tendered in evidence affidavit of Dr.U.S.Dhaliwal Ex.R1 alongwith hospital file of the patient Ex.R2 and closed the evidence. OP no.3 tendered in evidence the affidavit of Sh.Sunil Mahajan Ex.OP3/1 alongwith documents Ex.OP3/2 and Ex.Op3/3 and closed the evidence. On conclusion of evidence and arguments, the District Forum partly allowed the complaint of the complainant, as referred to above. Aggrieved by above order, OP nos.1 and 2 now appellants of First Appeal No.562 of 2015 10 first appeal no.573 of 2015 have filed this appeal against the same whereas, complainant has preferred first appeal no.562 of 2015 for enhancement of amount of compensation.
7. We have heard the learned counsel for the parties at considerable length and have also examined the record of the case. We have to determine this point in above appeals, as to whether there is any medical negligence or deficiency in service on the part of OPs so involved in this case, entitling the complainant to compensation against them. Firstly, we touch this point as to whether OP no.2, who performed surgery on the complainant was a competent surgeon with due qualifications. There is nothing on the record proved by the complainant in this regard on the file. On the other hand, it has appeared in Ex.C-2, the document of complainant that OP no.2 is a qualified surgeon and his affidavit is Ex.R-1 on the record to this effect. The onus is on the complainant to prove medical negligence or deficiency in service on the part of OPs. There is nothing on the record to hold that OP no.2 was not a qualified surgeon and lacked competence in this regard in conducting cholecystectomy on the complainant. Even this point has not been pleaded or pressed before us by counsel for the complainant specifically.
8. Now, we touch this point, that there was any common bile duct injury caused by OP no.2 to the complainant in this case or not. The onus rests on the complainant to prove this fact. We have examined the record of the case coupled with the pleadings of the First Appeal No.562 of 2015 11 parties. Laparoscopic surgery, which is called button hole surgery as well, was performed by OP no.2 on complainant at OP no.1 hospital on 02.02.2011 for cholecystectomy. The complainant pleaded this fact that she sustained common bile duct injury due to negligent and deficient act of OP no.2 at OP no.1 hospital. The complainant tendered her affidavit Ex.C-1 on the record and affidavit of her husband Jaspal Singh Ex.C-7. Only two affidavits appeared on the record in support of her version. The complainant relied upon prescription slip Ex.C-3, Ultrasound report Ex.C-4 and record of PGI Ex.C-5. We have examined the PGI record Ex.C-5. The diagnosis is recorded in it as "post button hole cholecystectomy biliary pistula". The complications are recorded in it as "uneventful" and management recorded in it as "conservatively by pigtail drainage and SHD for gross Ascites". The PGI record, as referred to above, has not recorded this fact in it that there was any common bile duct injury in the surgery done by OP no.2 at Hospital of OP no.1. Vide PGI record Ex.C-6, produced by complainant, the diagnosis was recorded as "Type II biliary stricture with biliary fistula". She was managed at PGI by providing the treatment. The PGI record Ex.C-5 and C-6 does not record it specifically that there was any common bile duct injury caused in the surgery by OP no.2 in the hospital of OP no.1. Dr. Ujagar Singh Dhaliwal OP no.2, tendered his affidavit Ex.R-1 and he denied any common bile duct injury caused by him to complainant in the above operation. It is neither recorded in the First Appeal No.562 of 2015 12 treatment record of OPs now in PGI that common bile duct was injured of complainant in the procedure conducted by OP no.2.
9. The PGI record Ex.C-5 and C-6 has proved this fact that there was bile leakage in this case. This fact stands proved that there was bile leakage sustained by the complainant in the surgery, which was performed by OP no.2 at OP no.1 hospital. The OPs have produced on record the medical literature regarding Complications in Surgery (Medical Literature of Michael W. Mulhollan Gerard M. Doherty). In introduction, it records as "Most complications following surgical procedures on the biliary system are related to iatrogenic injury. They include bile leak, bile duct obstruction or stricture and infection". It is recorded in complications of cholecystectomy that "Complications of laparoscopic and open cholecystectomy can be classified as major, typically involving injury to the common bile duct or common hepatic duct, or minor, usually evidenced as a bile leak with ensuing bile peritonitis or biloma". It is also recorded in this medical literature that "laparoscopic cholecystectomy is associated with a higher incidence of biliary injuries relative to the open procedure". In Bailey & Love's short practice of surgery (Medical literature) record that about 15% of injuries to the bile ducts are recognized at the time of operation. In 85% of case, the injury declares itself post-operatively by: (1) a profuse and persistent leakage of bile if drainage has been provided, or bile peritonitis if such drainage has not been provided; and (2) deepening obstructive jaundice. In medical literature by Michael J. Zinner Seymour I. First Appeal No.562 of 2015 13 Schwartz. Harold Ellis, Volume II at page no.283 of file, it is recorded that "perhaps the most significant complication that can arise during open or laparoscopic cholecystectomy is bile duct injury. Numerous reports in the literature including this large population based study indicate that the risk of bile duct injury during open cholecystectomy is between 0.1% and 0.2%. Similarly morbidity and mortality data has been reported by other large series. Major complications occur in 1% to 5% of patients. The incidence of common bile duct injury is difficult to ascertain, although most authors suggest that this complication occurs in upto 0.7% of patients". At page 299 of file, it is recorded that bile leak from the gall bladder fossa occurs as a result of division or damage to smaller biliary radicles or liver injury and is self limiting. Cystic duct stump blow out and leaks due to lateral rents can be managed by endoscopic stenting.
10. From appraisal of record of the case, we have reached this conclusion that there was bile leakage of the complainant, even as the record of PGI in this case indicates bile leakage, but its origin is not known. The record of PGI further records that leakage of bile is probably from the side of gallbladder. There is no medical literature proved by the complainant nor any expert witness is examined to prove this fact that renal dysfunction was directly an outcome of this bile leakage. The medical literature placed on the record shows that bile biliary leakage or common bile duct injury is known complication of this cholecystectomy. Even medical literature does not establish this fact that laparoscopic surgery or open surgery is not recognized First Appeal No.562 of 2015 14 by the standard medical literature. Even laparoscopic surgery is also a recognized surgery for conducting the surgeries. We cannot hold the OP medically negligent simply on the point that OPs preferred for laparoscopic surgery upon complainant than open surgery.
11. Even, the Hon'ble National Commission has held in "Tilat Chaudhary & another Vs. All India Institute of Medical Sciences & another" IV(2012)CPJ 610(NC) that incidence of CBD injury is a well known risk, when patient undergoes LCP. Merely because the laparoscopic cholecystectomy had to be converted to open cholecystectomy procedure, it cannot be said that LCP adopted by surgeon was counter indicative. CBD injury is well known injury of laparoscopic cholecystectomy, as held by the National Commission in above referred authority.
12. The counsel for the complainant further submitted that no post operative care has been taken by the OPs to repair the cause of bile leakage in this case. We have to examine this point on the basis of evidence whether complainant visited OP nos.1 and 2 after removal of her stitches again and complained of any post operative complications or not. On this point, the complainant only placed her affidavit and affidavit of her husband on the record. OP no.2 also tendered his affidavit in evidence denying this fact on the record. There is affidavit and counter affidavit of the parties in this regard. No slip has been produced on record by the complainant that she visited OPs post operatively complaining of any complication. On the other hand, OP no.2 in his affidavit out rightly denied the fact of First Appeal No.562 of 2015 15 visiting him by the complainant after removal of the stitches of above surgery. We need corroboration of this fact by the complainant because her oral version stands contradicted by OPs on the record in this regard. There is nothing on the record that complainant got her OPD slip prepared and then contacted OP no.2 in this regard. Even date and month of the visit have not been mentioned by the complainant, when she approached OP no.2. We are unable to rely upon vague statement of the complainant, which is equally rebutted by OPs on the record in this regard.
13. It is settled principle of law, as held by Supreme Court of India in "Kusum Sharma Vs. Batra Hospital" I(2010)CPJ-29(SC) that negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. He would not be liable if the course of action chosen by him was acceptable to the medical profession. No doctor can assure the recovery to the patient from any complication. As long as they performed their duty with reasonable skill according to medical standard practice and they duly are qualified in that matter, hence cannot be held medically negligence. The counsel for complainant relied upon law laid down by the National Commission in "B.R.S. Heart Institute and Research Centre Vs. Kuljit Kaur and others" 2011(3)CPJ-78, wherein it has been held that the doctor is negligent in case, he has not attended the post operative management of patient. The complainant was normal, when she was discharged from the hospital of OP no.1. She came for removal of stitches and had not First Appeal No.562 of 2015 16 complained of any complication, as no such record is on the file to prove it. The post operative negligence can be attributed to doctor in case the patient visited the doctor for follow up treatment.
14. As a result of our above discussion, we are unable to find any medical negligence or deficiency in service on the part of OPs. The complainant herself has not visited OPs after removal of her stitches and OPs cannot be held medically negligent, if the patient herself failed to appear before the doctor at post operative stage with any complication. We do not agree with the reasoning of the District Forum under challenge in this case. Consequently, the order of the District Forum Amritsar is held to be erroneous and the same is set aside. We accept first appeal no.573 of 2015, which has been filed by OP nos.1 and 2 and set aside order of District Forum. Another first appeal no.562 of 2015, which has been filed by the complainant now appellant for enhancement of the compensation, also stands dismissed, leading to the dismissal of complaint of complainant.
15. In First Appeal No.573 of 2015, appellant no.2 had deposited an amount of Rs.25,000/- in this Commission at the time of filing the appeal and further deposited an amount of Rs.33,000/- in compliance with order of this Commission. These amounts alongwith interest, which accrued thereon, if any, be remitted by the registry to appellant no.2 of this appeal by way of crossed cheque/demand draft after the expiry of 45 days.
First Appeal No.562 of 2015 17
16. Arguments in above referred appeals were heard on 02.06.2017 and the orders were reserved. Certified copies of the orders be communicated to the parties as per rules.
17. The appeals could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER June 05, 2017 (MM)