State Consumer Disputes Redressal Commission
Dr. Ujagar Singh Dhaliwal vs Smt. Murti Devi And Another. on 11 April, 2016
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.537 of 2013
Date of Institution: 08.05.2013
Date of Decision : 11.04.2016
Dr. Ujagar Singh Dhaliwal, Proprietor/Partner/Manager, Dhaliwal
Hospital and Nursing Home, 3 Batala Road, Amritsar resident of 8-B,
Circular Road, Amritsar.
.....Appellant/opposite party no.1
Versus
1.Smt. Murti Devi wife of Shri Girdhari Lal resident of Ward no.1,
Backside of Bus Stand, Bhikhi, Tehsil and District Mansa now at
Amritsar.
.....Respondent no.1/complainant
2.Dayanand Medical College and Hospital, Ludhiana through its
Managing Director/Manager.
.....Respondent no.2/opposite party no.2
First appeal against order dated
12.03.2013 passed by the District
Consumer Disputes Redressal
Forum, Amritsar.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Shri H.S. Guram, Member.
Present:-
For the appellant : Sh. Mukand Gupta, Advocate For respondent no.1 : Sh. Dinesh Sharma, Advocate For respondent no.2 : Sh. D.S. Sobti, Advocate ................................................... J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The appellant of this appeal (opposite party no.1 in the complaint) has directed this appeal against the respondent no.1 of this appeal (the complainant in the complaint) and respondent no.2 of this appeal (opposite party no.2 in the complaint), challenging order dated 12.03.2013 of the District Consumer Disputes Redressal Forum, Amritsar (in short the "District Forum"), vide which, the complaint of the complainant was partly accepted by directing OP First Appeal No.537 of 2013 2 no.1 to pay the amount of Rs.2,54,043/- on account of medical expenses, besides Rs.1 lakh as compensation for mental harassment and negligence of OP no.1 and Rs.2000/- as litigation expenses.
2. Complainant Murti Devi has filed the complaint under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that she suffered from gallbladder stone. Finally, she approached OP no.1 in his hospital-cum-clinic on 17.06.2008, where some clinical tests were conducted on her including ultrasound report. OP no.1 recommended button hole surgery for the removal of gallbladder stones existing in the body of the complainant. OP no.1 alongwith team of doctors conducted button hole surgery on complainant on 18.06.2008. On 20.06.2008, the complainant suffered severe pain in her abdomen and OP no.1 was called to checkup, but OP no.1 did not come on the night and came to see the complainant on 21.06.2008 and recommended some medicines and gave injections to the complainant. The complainant lost her senses, despite giving full treatment and OP no.1 discharged complainant immediately during her unconsciousness. OP no.1 charged Rs.30,000/- from complainant without issuing any receipt or bills therefor. The complainant and her attendants were kept in darkness about medicines and treatment provided to her. On returning home, the condition of the complainant became deteriorated and OP no.1 was contacted but he could not satisfy the complainant and asked the complainant to come after 2 to First Appeal No.537 of 2013 3 4 days. It was further averred that condition of the complainant became bad to worse. OP no.1 sent a Jr. doctor to Bhikhi for checking up the complainant, who advised her to get the advice of the local doctor having knowledge of surgery and charged Rs.2000/- from complainant. It was further pleaded that she was carried to Dr. Raj Kumar Jindal at Mansa, who referred her to operating doctor. On 03.07.2008, the complainant approached OP no.1 and he conducted some tests and examinations and complainant also got conducted ERCP examination from Dr. Harpreet Singh, D.M. Amritsar. After discussions and consultations with various doctors, OP no.1 admitted that during operation, a cut had occurred on CBD pipe and OP no.1 further advised to complainant and her attendant to carry her to PGI or DMC by signing the referral card. On 04.07.2008, the complainant was taken to DMC Hospital Ludhiana by her attendants and it was declared that her common bile duct was damaged due to negligence of operating doctor during button hole surgery. Again ERCP clinical examinations and tests, ultrasound etc. were conducted. The infection of the CBD was removed and drains were installed to avoid infections and to relieve to the internal wound by way of open surgery. The complainant was discharged from DMC on 22.07.2008, after removal of drains. The condition of the complainant became more critical on 24.07.2008 and she was again treated and discharged on 27.07.2008. After removal of the drains, the complainant suffered from hunger and thrust and colour of her urine changed and eyes of complainant became extra ordinary yellowish. First Appeal No.537 of 2013 4 It was further pleaded that complainant was again taken to DMC for treatment and was discharged on 05.08.2008. OP no.1 caused damage to CBD of complainant during surgery and due to this reason, complainant have to suffer from above said problems and she also incurred Rs.7 lakhs on her treatment. It was further pleaded that complainant is still under the treatment and she is suffering from heart problem and her heart is working 32% only due to above negligence of OP no.1. The complainant has, thus, filed the complaint against OP no.1 directing him to pay Rs.20 lakhs as compensation for expenses incurred on the medicines and on treatment.
3. Upon notice, OP no.1 Dr. Ujagar Singh Dhaliwal filed written reply and contested the complaint of the complainant vehemently. It was averred in preliminary objections that complaint is not maintainable. Any medical negligence or deficiency in service or unfair trade practice was vehemently denied by OP no.1 It was further alleged that known complication of a surgical procedure is not negligence. The complainant earlier filed complaint against Dr. Ujagar Singh Dhaliwal before Civil Surgeon Amritsar and it constituted a Board of experts to look into the matter. After investigation, the above Board of experts opined that injury caused to CBD during surgery is one of the known complications and there is no negligence on the part of OP no.1. On merits, this fact was admitted that complainant was admitted in the hospital of OP no.1 on 17.06.2008 with the complaint of pain in abdomen. She was First Appeal No.537 of 2013 5 examined by M.D.(medicine), a retired professor of Medicine and an experienced physician. She was operated upon for cholecystectomy on 18.06.2008. It was further pleaded that OP no.1 is a retired professor of surgery from Govt. Medical College Amritsar and is a medical teacher for the last over 35 years for MBBS and Post Graduate students of surgery. He is a retired Director, Principal of Sri Guru Ram Dass Institute of Medical Sciences Amritsar and is a fellow, life member and office bearer of many National and International Societies of Surgeons and he has done more than 20,000/- cholecystectomies. His hospital is one of the best equipped hospitals and is ISO 9001-2008 certified. It was further pleaded that established procedure was followed in the case of complainant while performing surgery. Although, the complainant had old disease and there were lot of fibrous adhesions in the area of operation. It was further pleaded that post operative recovery was uneventful and complainant was discharged in a satisfactory condition on 21.06.2008. It was further pleaded that discharge card was issued to complainant showing the details of operation and post operative treatment alongwith hospital bills and Rs.13,944/- was charged from complainant. The complainant was asked to come after a week i.e. 26/27 June 2008 for removal of stitches and for follow up treatment, which was negligence on her part. It was further averred that no patient can be discharged while in state of unconscious, as pleaded by the complainant. The complainant was discharged in satisfactory condition. It was further stated that no Jr. doctor was sent for First Appeal No.537 of 2013 6 checkup of complainant, who charged Rs.2000/- from complainant. The complainant has not mentioned the name of Jr. doctor due to above reason. It was further pleaded that ultrasound was got conducted on 01.07.2008 and no CBD cut was shown in the report. Ultrasound was also conducted by Dr. I.S. Nijjar one of the most experienced doctors of the city and report showed small ecozenic focus measuring 5.5 mm size (clot/stone) and there was change in the caliber of he CBD at that level with no other specific abnormalities. ERCP was also done on the same day by Dr. Harpreet Singh DM, which revealed mid CBD block with a filling defect therein. In the absence of OP no.1, Dr. A.S. Multani referred the patient to good surgeon and suggested two centres one was PGI Chandigarh and other was DMC Ludhiana. The complainant was shifted to DMC Ludhiana on 04.07.2008. No doctor in DMC Ludhiana declared or commented that CBD of the complainant had been damaged due to negligence of operating surgeon. The blockage of CBD as it occurred in the case of complainant is one of the known complications of cholecystectomy all over the world in the best of set ups, in the best of hands. A known complication is not negligence on the part of the surgeon and he cannot be responsible for the same. OP no.1 denied any medical negligence on his part and prayed for the dismissal of the complaint.
4. OP no.2 filed its separate written reply and contested the complaint of the complainant vehemently. It was averred in preliminary objections that the Forum has no jurisdiction to try the First Appeal No.537 of 2013 7 complaint, because OP no.2 Hospital is located at Ludhiana. On merits, it was pleaded by OP no.2 that complainant was admitted with OP no.2 on 05.07.2008 in Gastroenterology Unit under Dr. Ajit Sood, as a case of biliary collection. The ultrasound of the complainant was done on the same day, which showed status post cholecystectomy with dilated central IHBR's and proximal CBD with stricture at distal end of CBD with ascites. Accordingly upper GI endoscopy was done on the same day, which showed blockage of CBD in middle part and accordingly surgery consultation was taken from Dr. Kuldip Singh and patient was taken up for surgery by Dr. Kuldip Singh for biliary collection drainage. The complainant was discharged on 22.07.2008 with plan for definitive surgery after three months. The complainant was gain admitted on 24.07.2008 with OP no.2 with complaint of fever and vomiting. The complainant was managed conservatively and she started accepting orally and passing stools and she was discharged in satisfactory condition on 27.07.2008. The complainant was again admitted on 02.08.2008 with complaint of obstructive jaundice and decreased appetite. The complainant was managed conservatively with IV fluids and antibiotics. The complainant was discharged on 05.08.2008, on the request of attendants of the complainant. The complainant was again admitted on 11.08.2008 and she was prepared for surgery and on 19.08.2008, hepatico-jejunostomy with Roux-en-Y Jejuno- jejunostomy was done. The complainant developed congestive heart failure. Echocardiography was done on 11.09.2008, which showed First Appeal No.537 of 2013 8 global hypokinesia of LV, LVEF of 32%, moderate MR, mild AR, moderate TR and minimal pericardial effusion. Accordingly, the cardiac consultation was taken and complainant was managed accordingly. The general condition of the complainant improved and she was discharged on 19.09.2008 in a satisfactory condition. It was alleged to be wrong that after examining the complainant and test reports, it was declared that CBD has been damaged due to negligence of OP no.1 during button hole surgery. OP no.2 prayed for the dismissal of the complaint.
5. The complainant tendered in evidence affidavit and documents Ex.C-1 to C-72 and closed the evidence. As against it, OPs tendered in evidence affidavits Ex.RW1/A, Ex.RW2/A and Ex.R-1 alongwith documents Ex.R-2, Ex.R-1(b), Ex.R-3 to Ex.R-9 and closed the evidence. On conclusion of evidence and arguments, the District Forum partly accepted the complaint of the complainant. Dissatisfied with the order of District Forum, OP no.1 now appellant directed this appeal against the same.
6. We have heard the learned counsel for the parties and have also examined the record of the case. The complainant has alleged that she suffered common bile duct injury on account negligence on the part of OP no.1, the present appellant. The case of the complainant is based on cut to her common bile duct, which further deteriorated her condition insisting her for further treatment. On the other hand, the present appellant has denied it in toto in his written version. OP no.2 has taken the specific stand in the written First Appeal No.537 of 2013 9 version filed by it before District Forum. That it has been declared by OP no.2 that CBD has not been damaged of complainant due to negligence of OP no.1 during button hole surgery. OP no.2 specifically pleaded this fact in the last line of para no.4 of the written reply on merits. We have to determine this fact on the file with the aid of evidence as to whether any medical negligence is proved on the part of OP no.1 for injury to her in CBD in button hole surgery carried out by OP no.1 leading to further serious complications. There is denial on the part of OP no.2 that OP no.1 conducted button hole surgery in negligent manner. OP no.1 has taken specific stand that there were blockage of CBD of complainant and no injury was caused to her CBD. As per pleaded case of the complainant, she felt some pain in abdomen and she approached the hospital of OP no.1, where certain tests were conducted including ultrasound and OP no.1 recommended for button hole surgery for removal of gallbladder stone of the complainant. OP no.1 conducted the button hole surgery on 18.06.2008 in this regard. Ex.C-1 and C-2 are the affidavits of complainant filed by her in support of her averments. Ex.C-3 is the bills for the expenses incurred by the complainant. Ex.C-4 is the complaint from complainant to D.C. Amritsar regarding medical negligence of OP no.1. Ex.C-5 is the letter by District Welfare Officer to complainant. Legal notice sent by complainant is Ex.C-6. Ex.C-7 to Ex.C-9 are the postal receipts thereof. Ex.C-10 to C-36 are payment receipts issued by DMC Ludhiana. Similarly, we have examined the other bills Ex.C-37 to C-65 on the record. Ex.C-66 is First Appeal No.537 of 2013 10 the copy of out patient card of complainant issued by DMC Ludhiana. Ex.C-67 is the copy of discharge slip of complainant issued by Dhaliwal Hospital.
7. OP no.1 Dr. Ujagar Singh Dhaliwal tendered his affidavit Ex.R-1 and stated that he is a retired professor of surgery from Govt. Medical College Amritsar and is a medical teacher for the last over 35 years for MBBS and Post Graduate students of surgery. He is a retired Director, Principal of Sri Guru Ram Dass Institute of Medical Sciences Amritsar and is a fellow, life member and office bearer of many National and International Societies of Surgeons and he has done more than 20,000/- cholecystectomies. His hospital is one of the best equipped hospitals and is ISO 9001-2008 certified. Ex.R-2 is the affidavit of Dr. Amrik Singh Multani to the effect that there is no medical negligence on the part of OP no.1. Ex.R-3 is the copy of patient's record file of complainant by Dhaliwal Hospital. The matter was referred by the Deputy Commissioner to Civil Surgeon Amritsar, who constituted the board of doctors. The board of doctors gave opinion Ex.R-5 that CBD injury is one of the vital complications in the cholecystectomy and the board of doctors found no medical negligence in this case. Affidavit of Dr. Kuldip Singh, Professor Department of Surgery DMC & Hospital Ludhiana is Ex.RW-1/A on the record. He stated that ultrasound of the complainant was done on 05.07.2008, which showed status post cholecystectomy with dilated central IHBR's and proximal CBD with stricture at distal end of CBD with ascites. He further stated that case of the complainant First Appeal No.537 of 2013 11 was CBD blockage and not case of CBD cut. The case summary of complainant is Ex.R-1/A issued by DMC Hospital Ludhiana on the record. It is recorded in it that complainant was 50 years old female and was admitted on 05.07.2008, vide CR no.68048, Adm. No.23328 in gastroenterology unit under Dr. Ajit Sood as a case of biliary collection. The patient was discharged with plan for definitive surgery after three months on 22.07.2008. Affidavit of Dr. Sandeep Puri, Medical Superintendent of DMC Hospital Ludhiana is on file. He stated in his affidavit that OP no.1 did not cause any injury to CBD of the complainant while performing the surgery and rather pleaded in their written version in para no.4 in the written reply on merits that it is wrong that doctors of OP no.2 declared that CBD has been damaged due to negligence of OP no.1 during button hole surgery.
8. In view of our above discussions and conclusion as recorded above, the case of the complainant is CBD blockage and not CBD injury caused by OP no.1. The medical literature placed on record contained at page no.457 of the file records that complication 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%. The incidence of common bile duct injury is difficult to ascertain, although most authors suggest that this complication occurs in up to 0.7%. The National Commission has held in "Tilat Chaudhary and another First Appeal No.537 of 2013 12 Vs. All India Institute of Medical Sciences and another"
IV(2012)CPJ-610(NC) that CBD injury is a well known complication of laparoscopic cholecystectomy procedure (LCP). It must be presumed that incidence of CBD injury is a well known risk when patient undergoes LCP. Same cannot be correlated as the act of negligence or carelessness on part of operating surgeon. We rely upon law laid down by the 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 well as they performed their duty with reasonable skill according to medical standard practice and they are qualified in that matter and hence cannot be held medically negligence.
9. As a result of our above discussions, we hold that order of District Forum Amritsar cannot be sustained in this appeal.
10. As a corollary of our above discussions, we accept the appeal of the appellant by setting aside above order of the District Forum Amritsar. The complaint of the complainant filed before District Forum is ordered to be dismissed.
11. The appellant had deposited the amount of Rs.25,000/- with this Commission at the time of filing the appeal and further deposited Rs.1,00,000/- in compliance with order of this First Appeal No.537 of 2013 13 Commission. These amounts with interest, which accrued thereupon, if any, be remitted by the registry to the appellant by way of a crossed cheque/demand draft after the expiry of 45 days.
12. Arguments in this appeal were heard on 05.04.2016 and the order was reserved. Now the order be communicated to the parties. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR)
PRESIDING JUDICIAL MEMBER
(H.S.GURAM)
April 11, 2016 MEMBER
(MM)