State Consumer Disputes Redressal Commission
Buta Mal vs Dr. R.D.Singh on 20 February, 2018
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
Consumer Complaint No.202 of 2015
Date of Institution : 13.08.2015
Date of Reserve : 29.01.2018
Date of Decision : 20.02.2018
1. Buta Mal son of Sh. Lal Masih son of Sh. Bhola Masih
2. Prince Blesson son of Sh. Buta Mal son of Sh. Lal Masih
Both residents of House No. 41, Harman Nagar, Ward No.
10, Ichhe Wala Road, Ferozepur City.
....Complainants
Versus
1. Dr. R.D. Singh, M.S. (General Surgery), Fraces Newton
Hospital, Ferozepur Cantt.
2. Frances Newton Hospital, Near Railway Station, Ferozepur
Cantt. through its Director.
....Opposite parties
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member.
Shri Rajinder Kumar Goyal, Member
Present:-
For the complainants : Ms. Ruchi Sekhri, Advocate
For the opposite parties: Sh. Sandeep Khunger, Advocate
with Dr. Anurag Amin, Director/
Medical Superintendent of Frances
Newton Hospital-Op No.2
Consumer Complaint No. 202 of 2015 2
GURCHARAN SINGH SARAN, PRESIDING JUDICIAL MEMBER
ORDER
Complainants have filed the present complaint against the opposite parties (hereinafter referred as Ops) under Section 17 of the Consumer Protection Act, 1986 (for short the Act) on the averments that Smt. Renu Bala wife of complainant No. 1 and mother of complainant No. 2 got her medical check-up in OPD of Dr. R.D. Singh Op No. 1 employed in Op No. 2 on 17.7.2014 with problem of stone measuring 8.6 MM in size in her Gall Bladder and she was diagnosed as 'Choleliathesis' and was advised laparoscopic cholecystectomy . On the same day in the evening, the patient Renu Bala was got admitted in the said hospital for Gall Bladder Stone Surgery vide Unit No. 236439 and she was posted for surgery by Dr. R.D. Singh Op No. 1 and Laparoscopic Cholecystectomy was started by Op No. 1. During the course of procedure, Op No. 1 got the consent of complainant No. 1 for converting the laparoscopic surgery into open cholecystectomy surgery on the ground that Gas was not inflating in the abdomen of patient and it took two hours for removal of the gall bladder whereas normal surgery is performed within 45 to 60 minutes. The complainant No. 1 is also Medical Lab Technician in Civil Hospital, Ferozepur and remained present during the course of surgery and observed that the patient was suffering from Tachycardia i.e. heart rate above the normal range, fast respiration, fast pulse rate, fall in blood pressure, chest pain, excessive drainage fluid output and Consumer Complaint No. 202 of 2015 3 poor urine output. These problems were brought to the notice of Op no. 1 during his visit in the morning on 18.7.2014, who stated that these are due to general anesthesia and are bound to occur. But these complications are typical signs and symptoms of internal organ injury, which was not taken into consideration and were not disclosed by the Doctor in the discharge summary with an intention to conceal the material medical negligence committed by the Doctor. Even the required investigations like X-ray, Ultrasound, CT Scan and MRI were not performed. The required life saving measures were not taken by the treating doctor during the treatment of the patient. There was complete lack of proper care, supervision and observation about the condition of the patient. No timely advice for shifting the patient to some other advanced hospital equipped with higher modern facilities was given. Keeping in view the deteriorating condition of the patient and failure of Doctor to adopt the required necessary measures, there is lot of apprehension in the minds of the complainant about the condition of the patient. They had completely lost the faith in the said Doctor and decided to shift the patient to CMC & Hospital, Ludhiana for further treatment. Accordingly, the patient was got referred on 19.7.2014 at about 1.30 a.m. Immediately thereafter, the patient was shifted to CMC Hospital, Ludhiana where the patient was admitted in casualty at 4.30 a.m. for further medical treatment vide hospital Unit No. C7529510. At the time of admission, the patient was dehydrated and was altered sensorium and her blood pressure was unrecordable. She was started on intravenous fluids and broad Consumer Complaint No. 202 of 2015 4 spectrum antibiotics and was shifted to ICU for further resuscitation. She had flexocath in Situ in the Morrisons, which has approximately 700 ML of bile present. Chest Tube was inserted at right side in CMC and Hospital, Ludhiana, which drained 200 ML of Bile Stained pleural fluid. In ICU, her general condition improved over 3 days and was shifted to Surgical HDU on 23.7.2014. On 25.7.2014, CT Scan and MRI of whole abdomen and MRCP was done, which detected a right hepatic duct injury alongwith duodenum perforation and following findings were observed during the surgery:-
a) Bile stained discharge from main wound.
b) 3.5 CM Duodenal injury inD1 and D2 junction with bile coming out.
c) Right Hepatic Duct ligated with silk and knot present.
d) 3 x 3 CM Perforation in the ILEUM with ILEUM loop stuck to umbilical port site.
e) Bile stained Peritonial Fluid in the morrisons left and right subphrenic space and the pelvis.
After surgery on 27.7.2014, the patient was extubated and shifted to ICU. However gradually due to Sepsis, the condition of the patient deteriorated and patient developed with respiratory distress and had to be intubated on 29.7.2014. On 1.8.2014 at 4.15 a.m., she had Bradycardia and inspite of all resuscitative measures patient could not be revived and unfortunately, she was declared dead. In death summary, multi causes of death were mentioned. Keeping in view the investigation and treatment given by CMC and Consumer Complaint No. 202 of 2015 5 Hospital, it is clear that Op No. 1 had complete lack of knowledge and medical skills specifically in laparoscopic surgery and there was lack of modern equipment and facilities with Op No. 2 and patient died due to gross professional medical negligence of Op Nos. 1 & 2. Injuries were caused to the right heptic duct injury during surgery due to negligence of Op No. 1. Lateron, he tried to repair it but could not do it, tried to conceal it by not referring it in the discharge summary nor it was disclosed to the attendants of the patient. The patient was working as Staff Nurse at Mini Primary Health Centre, Village Khosa Dal Singh, Tehsil Zira, District Ferozepur, aged about 53 years. Presently, the complainant is getting pension @ Rs. 26,779/- per month. On account of death of the patient, the complainant suffered a loss of salary of Rs. 11,74,068/-. She was also entitled to enhancement of pension. The complainant incurred medical expenses of Rs. 4,63,839.75p on the treatment of the patient in CMC & Hospital, Ludhiana and Rs. 21,699.80p with Op No. 2 and Rs. 1 Lac to perform the last rites of the deceased patient, a sum of Rs. 2 Lacs has been claimed on account of damages and accordingly, a sum of Rs. 82,56,827.55p has been sought alongwith interest @ 12% p.a. from the date of death of the deceased till realization.
2. Upon notice, Op No. 1 appeared and in its written reply took the preliminary objections that at the time of treatment, Op No. 1 was Director/Medical Superintendent with Op No. 2 and Op No. 2 had obtained insurance cover "Error & Ommission - Medical Establishment" from Oriental Insurance Co. Ltd., Branch Office, Consumer Complaint No. 202 of 2015 6 Ferozepur having policy No. 233704/48/2015/245 valid for the period 16.5.2014 to 15.5.2015 and Oriental Insurance Co. Ltd. is a necessary party; the complaint on behalf of the complainants is not maintainable because no application under Section 12(1)(c) of the Act has not been filed; complaint involves complicated questions of facts and medical terminology, which cannot be adjudicated in summary procedure, therefore, the matter be relegated to the Civil Court; the complainants have not approached the Commission with clean hands and had suppressed the material facts and have not attached the complete record of Op No. 2; Op No. 1 is an experienced Surgeon having performed 1000 surgeries in Op No.
2. He joined Op No. 2 in March, 1994 and since then he has been working as general surgeon with Op No. 2 and hospital has been performing laparoscopic surgery for gall bladder that is why the patient had chosen Op No. 2 for the surgery; he is MBBS and MS from highly reputed Medical College CMC Vellore. He also received a certificate of meritorious service in the year 2013. He is also a visiting Laparoscopic surgeon in Adesh Hospital, Muktsar, teaching Professor for D.N.B. Course in E.H.A. Hospital, Herbertpur, Uttarakhand and also worked as Medical Superintendent in Mission Hospital, Mussoorie. It has been denied that Op No. 1 had complete lack of knowledge and skills especially in laparoscopic surgery. Op No. 2 is 122 years old charitable institution, serving humanity and that as per the report of the Board of Doctors, there was no negligence in the treatment on the part of Ops. On merits, it is admitted that patient was employed as staff Consumer Complaint No. 202 of 2015 7 nurse at Primary Health Centre, Kassoana at Zira. It was denied that she got checked up in OPD on 17.7.2014 and after medical examination, the patient was diagnosed to have "Choleliathesis". However, as per patient Unit No. 236439, patient came with Ultrasound report showing Gall Bladder stone. OPD record does not mention that Op No. 1 advised immediate surgery. The factual position is that the patient was seen by Op No. 1 in OPD, which showed a calculus in her gall bladder. She had history of two big surgeries in the past, one Caesarean Section and other Laparotomy for Ectopic Pregnancy years back. Op No. 1 advised her Cholecystectomy operation for removal of stone in the gall bladder and was admitted as indoor patient in Op No. 2. Laparoscopic cholecystectomy surgery was planned for the patient with the consent of the patient and her family but during her operation, it was found that her gall bladder was found to be densely adherent to the surrounding structure due to chronic nature of the disease and on account of previous two abdominal surgeries, the patient had intra abdominal adhesions, therefore, laparoscopic was difficult and with the consent of Op No. 1, it was converted to open surgery. The surgery was completed without any obvious injury to any surrounding structure. All the bleeding points and cystic duct were ligated in usual manner and a large tube drain was kept due to difficult nature of the surgery. The patient was uneventful at night and there was no seen of deterioration in her condition and she was allowed to take oral fluids. However, in the evening round the patient complained of pain, nausea, palpitation Consumer Complaint No. 202 of 2015 8 and breathing difficulty and her drainage was found to be high, therefore, strict watch was kept on her condition. Decreased urine output was also cause of concern, which was associated with a fall in blood pressure. The condition of the patient did not improve and vital parameters were becoming unstable. In view of the large amount of bile drainage, a bile duct injury was suspected. The patient was treated with standard protocol of ABC i.e. Airway, Breathing and Circulation. The required measures were taken to stabilize the patient before referring the patient to the higher centre for making it fit for transport. The investigations like ERCP, MRCP was required to diagnose the site and type of bile duct injury, after which only further action could be taken but that investigation was not available with Op No. 2. The Doctor in CMC, Ludhiana in emergency casualty was informed on phone and about the patient and arrangement of her shifting. Op No. 2 provided a staff nurse to accompany the patient and patient was sent to CMC, Ludhiana with intravenous line and continuous IV fluid. The patient was admitted in casualty of CMC, Ludhiana at 4.28 a.m. on 19.7.2014 and continued with the treatment i.e. intravenous fluid and antibiotics. The chest tube was inserted by CMC Hospital after 2 days and 200 ml of bile fluid was drained, which can be due to right sub diaphragmatic bile collection. During the stay of the patient with Op No. 2, all measures to stabilize were taken despite lot of interference from the relatives of the patient. As per the report of the CMC and report of the Medical Board, Faridkot Medical College, the condition of the patient improved and became stable Consumer Complaint No. 202 of 2015 9 after initial treatment at CMC Hospital and MRI was conducted on 25.7.2014. It shows that the patient's condition was improving and drainage was working well. The patient underwent 2nd operation on 27.7.2014 on the basis of radiological findings. 2nd surgery was done in view of the large drainage from the incision site, low drainage and suspected duodenal perforation on the 10th post operative day whereas there were no signs of any peritonitis and BP and pulse were normal. The surgery of 10th day was due to bile and intestinal leak is a difficult operation and there is always a danger due to damage to organs and due to the friable nature of all the tissues. Therefore, most of surgeons preferred to wait and manage such patients conservatively for atleast 6-8 weeks. During the stay of patient with CMC, she developed all complications like septicemia, septic shock and multi organ failure after the 2nd operation. Blood culture and sensitivity test came positive with a growth of Klebsiella, which was done on 29.7.2014 after the 2nd surgery. Moreover, the patient was diabetic and diabetic patient are at a greater risk of developing infections as sugar levels are high in blood and possibility of hospital acquired Nosocomial infection cannot be ruled out. No attempt was made to repair right heptic duct. It was reported to be ligated, which means that it was tied, which was done if the bile leak is suspected from aberrant. It was denied that as a Medical Lab Technician, complainant had got complete medical clinical knowledge. It was denied that patient was suffering from Tachycardia, heart rate above the normal range, fast respiration, fast pulse rate, fall in blood pressure, chest pain, Consumer Complaint No. 202 of 2015 10 excessive drain fluid output and poor urine output. Whereas as per the hospital record, these were adequate. It was denied that Op No. 1 overlooked the signs and symptoms of complication. In fact the patient was stable in the morning round as per the medical record. The overnight drainage did not show significant amount (50 Ml) reddish i.e. no bile stained. It was denied that Op No. 1 overlooked unstable condition of the patient. In fact the patient started to deteriorate approximately 24 hours after surgery. It was denied that no treatment or care was provided for 2 days. Since the patient was in a surgical ICU, which is highly dependency unit, it was denied that the patient was not getting the proper care in the said unit. When the urine output and blood pressure had fallen with 650ml of bile in the drain, indicate hypovolemic shock, therefore, the patient was started I/V fluids, I/V antibiotics, Oxygen was administered and all necessary measures were taken as noted in the medical record. To improve the patient's blood pressure, injection Dopamine Drip was started. Anesthetist or medicine doctor were called for and case was discussed with them. The required investigation was ordered. The condition of the patient was explained to the relatives and advised to shift the patient to teritiary centre / CMC Hospital for further investigation and management. Emergency services were arranged in CMC Ludhiana and they were explained about the condition of the patient and shifting of the patient. The patient was accompanied by surgical ICU, Staff Nurse Mr. Vikram with necessary resuscitation equipment, therefore, there was no lack of proper care and Consumer Complaint No. 202 of 2015 11 supervision. Shifting of the patient is always possible only when patient stabilized and to reach higher centre. After admission of the patient with CMC, emergency services were given to the patient. The patient was referred even without clearing the pending bills. It was also denied that patient was dehydrated and was in altered sensorium, rather, the patient was conscious and oriented. As per the record of the CMC, the patient was in septic shock means infection in blood or in other words septicemia/sepsis. The findings of the CMC are contrary to their own Microbiological Department report No. 5018 dated 19.7.2014, which clearly shows blood culture as 'no growth'. From the perusal of the discharge summary/referral to CMC, it is clear that 'subhepatic drainage' was mentioned as 650ml Bilious Green, therefore, it was clear that there was some internal injury/complication because in normal circumstances, there cannot be 650ml bilious green fluid, therefore, the Doctors of CMC were required to investigate the cause. The patient was stabilized on 21.7.2014 whereas CT scan and MRI was conducted on 25.7.2014. The injuries extracted on the medical record have been exaggerated because from the CT Scan and MRI report, it is clear that injury mentioned in Clause (d) is not there in the CT Scan, therefore, possibility cannot be ruled out that the said injury was caused during the 2nd surgery. It was denied that after the surgery in CMC, Ludhiana, the general condition of the patient was stable for a day, however, the patient was in respiratory distress and was shifted to ICU for further management and the patient also developed sepsis only after the 2nd surgery in CMC. The condition Consumer Complaint No. 202 of 2015 12 of the patient deteriorated only after 2nd surgery. The complainant have not preferred for post mortem to ascertain the real cause of death. As per the detail given by CMC, the cause of death is bile duct injury, duodenal perforation, Ileal perforation, right pleural effusion, sepsis and septic shock, ARDS, Acute kidney injury and MODS. However, the said report is false because these cannot be cause of death because in the 2nd surgery all these injuries were repaired. Sepsis can lead to MODS and ARDS and acute renal injury are part of MODS. Op No. 1 had sufficient medical experience and sufficient equipment and facilities were available with Op No. 2. Op No. 1 has correctly discharged his duty but while discharging duties, there is always chances of complication/injuries. It was denied that Op No. 1 had not deliberately disclosed the injury in the discharge summary because in the operation notes, no bile leak was noted and operation notes of CMC, Ludhiana does not state any evidence of attempted repair. Therefore, risk of complication is associated with Laparoscopic cholecystectomy. It was denied that complainant suffered any harassment on account of conduct of the Op. Complaint is without merit, it be dismissed.
3. Written reply of Op No. 2 was not taken on the record because it was not filed within the prescribed period as provided under Section 13 of the CP Act and in view of the judgment of the Hon'ble Supreme Court in "New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd.", 2015 (6) R.A.J. 551. Consumer Complaint No. 202 of 2015 13
4. The parties were allowed to lead their respective evidence in support of their complaint. Complainant in his evidence has tendered affidavit of Buta Mal Ex. CW1/A and documents Ex. C-0 to C-113. On the other hand, Op No.1 have tendered affidavit of Dr. R.D. Singh as Ex. OP-1/A and documents Exs. Op-1/1 to Op-1/23 and affidavit of Dr. M.P. Monga as Ex. Op-1/B. Op No. 2 has tendered affidavit of Dr. Anurag Amin as Ex. Op-2/A and documents Ex. Op-2/1 to Ex. Op-2/22.
5. We have heard the counsel for the parties and have carefully gone through the pleadings of the parties, evidence and documents on the record.
6. An objection has been taken that complaint has been filed by two complainants and no application under Section 12(1)(c) of the Act has not been moved. The claim has been filed by both the complainant i.e. legal heirs of deceased Renu Bala. Claim is one, application under Section 12(1)(c) of the Act is required in case two consumers having similar claim filed a joint complaint but it is no so in this case and during the course of arguments, the counsel for the Ops has also not taken this objection seriously, therefore, we do not agree with the plea taken by the Ops.
7. It has been further stated that complicated and legal preposition is involved, therefore, the matter be relegated to the Civil Court. We do not see that any complicated questions of law and facts are involved, which cannot be adjudicated by this Commission and the matter needs to be referred to the Civil Court. The benches of this Commission are headed by retired High Court Consumer Complaint No. 202 of 2015 14 Judges/retired District & Session Judges, who have long experience at their back and are fully competent to decide such like matters. In this regard, we are fortified by the judgment of "Dr. J.J. Merchant and others Vs. Shrinath Chaturvedi", 2002(6) SCC 635 wherein it was held 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'. Further reference can be made to "Shiv Kumar Agarwal versus Arun Tandon and another", 2007(2) CLT 287, decided by the Hon'ble National Commission. In that case a plea that case involves complicated questions of fact 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. Therefore, we are of the opinion that this Commission is fully competent to decide this complaint and no cause of action is made out to refer the case to the Civil Court.
8. As per the facts of the case, it is an admitted fact that patient Renu Bala wife of the complainant No. 1 Buta Singh and mother of complainant No. 2 Prince Blesson had come to Op No. 2 on 17.7.2014 for check up. When the patient was checked by Op No. 1 Dr. R.D. Singh, she had cholethiasis with no history of jaundice, no history of acute cholethiasis, history of previous 2 surgeries, no history of DM/HT. She had ultrasound got conducted Consumer Complaint No. 202 of 2015 15 on 9.8.2013 and other formal investigation was conducted in the hospital and she was diagnosed with cholethiasis/ gallstones. She was recommended for Cholecystectomy. She was admitted in Op No. 2 on 17.7.2014 and Laparoscopic Cholecystectomy of the patient was started but during the process of Laparoscopic Cholecystectomy due to adhesions, surgery was converted into open surgery after getting the consent of the complainant No.1. However, in the post operative, there were complications and typical signs and symptoms of internal organ injury. On 18.7.2014, the condition of the patient started getting deteriorated. At about 2.00 p.m. on 18.7.2014, the health condition of the patient was unstable, respiratory rate was very fast despite giving continuous O-2(Oxygen therapy) and from 8.00 p.m. to 2.00 a.m. the respiratory rate of the patient was going low and by that time, the Blood Pressure was unrecorded. The complainant was requesting the Ops that keeping in view the condition of the patient, she may be shifted to CMC Hospital, Ludhiana and at about 2.00 a.m. she was recommended for shifting to CMC Hospital, Ludhiana and at about 4.28 a.m. on 19.7.2014, she was admitted in CMC, Ludhiana. In the discharge summary Ex. C-2, it was mentioned that the patient had 650ml Bilious Green due to subhepatic drainage. ERCP, MRCP was not available in the Op Hospital. Even Op No. 1 is filed the affidavit to the extent that it was not available in Ferozepur City. The patient in CMC Hospital, Ludhiana was made stable and on 25.7.2014 the required Radiological investigations were conducted. The MRCP showed right heptic bile duct injury, Consumer Complaint No. 202 of 2015 16 small perforation, duodenum and ileal perforation at the umbilical trocar. On 27.7.2014, the injuries enlisted were repaired by means of surgery but the condition o the patient deteriorated gradually due to sepsis and she died due to multiple organ failure on 1.8.2014 in CMC Hospital. As per the death summary recorded by CMC Ex. C- 14, the cause of death in this case has been mentioned as under:-
"1. Bile duct (right hepatic Duct) injury following laparoscopic cholecystectomy
2. Duodenal perforation following the same surgery
3. Ileal perforation following the same surgery.
4. Right pleural effusion
5. Sepsis and septic shock
6. ARDS
7. Acute kidney injury
8. MODS"
It has been argued by the counsel for the complainant orally as well as in written submissions that the main cause for the death of the patient are due to internal injuries caused to the other parts of the body by Op No. 1 during the operation, which ultimately could not be controlled by the Ops as they did not have the proper investigation system in their hospital i.e. ERCP, MRCP and when condition of the patient became serious, she was referred the patient to CMC, Ludhiana. They have tried their best but ultimately, due to the injuries and some other problem i.e. Sepsis, ARDS & MODS, the patient died in CMC Hospital.
Consumer Complaint No. 202 of 2015 17
9. Counsel for the complainant has raised number of questions to pin-point the negligence on the part of Ops. Firstly with regard to the pre-operative investigation, as per OPD record Ex. C-1, the ultrasound is dated 9.8.2013. Therefore, Ops before going for surgery, which was not an emergency surgery as admitted by Ops should have preferred an other ultrasound to know the exact position of gall bladder stone. The patient in her history had also given that she had two earlier surgeries and in those conditions, possibility of adhesions could not be ruled out. No doubt that Ops should have conducted pre-investigative tests, which they have not done but it is a matter of record that the complainant had gall bladder stone and for that surgery was required, therefore, even if no further detailed investigation was conducted on the basis of ultrasound already with the patient, she had a problem of gall bladder stone, suffering from Cholethiasis and Cholecystectomy was required. Laparoscopic Cholecystectomy is a known procedure, therefore, if the Ops opted for laparoscopic cholecystectomy then it cannot be said to be case of medical negligence. However, when the Doctor had gone further for the surgery, there were adhesions, therefore, it was difficult for the Doctors to separate the various internal organs near the gall bladder, therefore, he opted for open cholecystectomy surgery. To support this preposition, counsel for the Ops has referred the medical literature Ex. Op-1/3 'what necessitates the conversion to open cholecystectomy' wherein it has been observed under the column 'objective' as under:-
Consumer Complaint No. 202 of 2015 18
"Laparoscopic cholecystectomy (LC) has become the gold standard for the surgical treatment of gallbladder disease, but conversion to open cholecystectomy is still inevitable in certain cases. Knowledge of the rate and impact of the underlying reasons for conversion could help surgeons during preoperative assessment and improve the informed consent of patients. We decided to review the rate and causes of conversion from laparoscopic to open cholecystectomy."
In the column of results, it has been observed that the most common reasons for conversion were severe adhesions caused by tissue inflammation. He has referred to another article Ex. Op-1/4 'Conversion of Laparoscopic Cholecystectomy into open cholecystectomy' wherein it has been observed that most common causes of conversion was dense adhesions followed by obscure anatomy at Calot's triangle. He has further referred to another article Ex. Op-1/5 'Conversion from Laparoscopic to Open Cholecystectomy' wherein it has been observed that adhesions at the calot's triangle was the common reason for conversion from laparoscopic to open cholecystecomy. Counsel for the complainant has not been able to rebut this medical literature. Moreover, the Doctor at the operation table is master of the things. He is to judge it whether he could continue with the laparoscopic surgery or to go for open cholecystecomy. Therefore, conversion from laparoscopic to open cholecystecomy cannot be said to be case of medical negligence.
Consumer Complaint No. 202 of 2015 19
10. However, it is a matter of record that after surgery on 17.7.2014, on 18.7.2014, the condition of the patient get deteriorated specifically in the evening hours. Respiratory rate was very fast from 2.00 p.m. to 7.00 p.m., from 24 it had gone to 48 and O-2 (Oxygen therapy) was started and was recommended by the Doctor to continue it. As is clear from the record of hospital Ex. Op- 2/2 (page 513), vital signs checked. Page No. 514 of vital signs chart shows that by 2.00 a.m., BP was unrecorded. Since evening the complainant was requesting the Ops to refer the patient to some teritiary hospital i.e. CMC Hospital, Ludhiana but when the condition of the patient became more critical only then they referred the patient to CMC Hospital. In its affidavit filed by Op No. 1 in para No. 13, it has been mentioned that the condition of the patient was not improving and higher centre has facility to correct diagnose the reasons for bile leak through CT Scan, ERCP, MRCP and expert management but shifting of the patient is always possible when the patient stabilize to travel and reach higher centre. Then the Ops take up the matter with emergency services of CMC and the patient was referred to CMC Hospital. An official of Ops travelled with the patient where he was admitted at 4.28 a.m. Normally the patient is required to stabilize, fit for travelling before shifting to another hospital and in this case the patient was to travel 2½ hours, therefore, stable condition of the patient was necessary and the Ops made their every effort by way of Oxygen and other medicines to stabilize the condition of the patient but when it did not improve, they had no reasons to keep the patient but to refer the patient to Consumer Complaint No. 202 of 2015 20 CMC Hospital and accordingly, the patient was referred there. Referring the patient to another hospital for higher treatment is not a negligence, it has been so observed by the Hon'ble National Commission in 2017(4) CPR 552(NC) "Ajay Khandel & Anr. Versus Prakash Nursingh Home and Anr."
11. It has been further argued by the counsel for the complainant that the Ops kept the patient in dark about the bile duct injury and nothing has been mentioned in the discharge summary. Even there is no expression of suspicion about the possible bile duct injury. Whereas in the written statement in para No. 2, it has been mentioned that in view of large amount of bile drainage in the drainage tube, a bile duct injury was suspected. The patient was treated with the standard protocol of ABC i.e. Airway, Breathing and Circulation with oxygen and IV fluids and stronger antibiotics. In the patient history dated 19.7.2014 Ex. Op- 2/2, it has been mentioned that the post operative condition of the patient was septic, hypovolemic shock was explained to the relative of the patient and patient was advised for discharge for further management in CMC, Ludhiana. In the CMC Ludhiana, after management of the patient, MRCP/ERCP was conducted and efforts was made on 27.7.2014 to plug the injuries by way of corrective surgery but in the meantime due to sepsis and other conditions of the patient, the patient died and in the cause of death as referred above, 3 injuries have explicitly come on the record i.e. Bile duct (right hepatic Duct) injury, Duodenal perforation and Ileal perforation. Exs. C-112 & C-113 are the pictures of stomach gall Consumer Complaint No. 202 of 2015 21 bladder, duodenum and Ileum. The duodenum may be near the gallbladder but bile duct and Ileum are quite away from the gallbladder. If sepsis and hypovolemic shock have developed, these have also developed due to the injuries to the internal organ of the patient referred above. Counsel for the complainant has referred one medical literature showing 'what is hypovolemic shock' and its causes, which reads as under:-
"Injuries from a deep cut or hard impact as well as illnesses could lead to hypovolemic shock. These include:
• Broken bones around your hips • Cuts on your head • Damage to organs in your belly, including your spleen, liver, and kidneys, because of a car accident, bad fall, or other trauma • A tear in your heart or a large blood vessel, or a weakened spot in a large blood vessel that could burst • Problems with your digestive tract, such as ulcers"
And in the signs of hypovolemic shock including little or no pee and low blood pressure and both the symptoms were in the case of this patient and in the case of diagnose, it has been referred how you may need lab tests and imaging studies like X-rays, ultrasound or CT scan to help figure out the cause of the shock. However, as explained by the Ops, ERCP and MRCP, which were the latest techniques to know the actual place of the injury inside the abdomen, the facilities were not available in the hospital of the Op Consumer Complaint No. 202 of 2015 22 or in the City of Ferozepur whereas the X-ray could be done. The chest X-ray was done, it may be relating to the chest function but actually when the Ops were suspected bile duct injury then they should have also gone for abdomen X-ray, which was not done. With regard to the sepsis, the counsel for the complainant has referred to an other article 'Medscape' for health care professional and in its overview, it has referred Sepsis as under:-
"Sepsis is not a random occurrence and is usually associated with other conditions, such as perforation, compromise, or rupture of an intra-abdominal or pelvic structure. Intrarenal infection (pyelonephritis), renal abscess (intrarenal or extrarenal), acute prostatitis, or prostatic abscess may cause urosepsis in immunocompetent hosts. Urosepsis has also been reported after prostatic biopsy. An abdominal wall abscess is present on the CT scan shown below."
and its signs and symptoms are as under;-
"The history and physical examination may suggest the likely source of the septic process and thereby help determine the appropriate antimicrobial therapy. General signs and symptoms may include the following:
• Fever, with or without shaking chills • Impaired mental status (in the setting of fever or hypoperfusion) • Increased breathing rate resulting in respiratory alkalosis Consumer Complaint No. 202 of 2015 23 • Warm or cold skin, depending on the adequacy of organ perfusion and dilatation of the superficial vessels of the skin."
It is possible on account of perforation, which is present in the present case and its symptoms were there on account of increased breathing rate resulting in respiratory alkalosis. The counsel for the complainant in support of his claim has referred to the judgment of the Hon'ble National Commission reported in 2015(3) CPJ 71 "Dr. Hari Ram Gupta Vs. Ashok Kumar Rawat & Ors.". It was also a case of surgery performed for cholecystectomy. There were severe abdominal pain reported revealed cut-off of common bile duct. Corrective surgery performed. It was observed by the Hon'ble National Commission that no doubt the medical literature produced by the Ops revealed that the bile duct injuries are common, medical study revealed that 15% of the injuries are recognized at the time of operation and 85% post operatively. 97% of the injuries are caused due to visual perceptual illusions and 3% due to technical skills. Operative and histopathological findings confirmed about the chronic cholecystitis and due to adhesions, Op No. 2 expressed difficulty during resection of gall bladder adhesions. It was observed by the Hon'ble National Commission that Op should have been more cautious during the surgery, therefore, it was a mistake, a lack of care by which the CBD was mistaken for cystic duct. Therefore, it was failure of duty, deficiency in services because medical record clearly established that there was delay i.e. Op No. 2 failed to diagnose the post operative complications and Consumer Complaint No. 202 of 2015 24 compensation was allowed and the revision petition filed by the hospital and the Doctor was dismissed. She has referred to another judgment 2017 (3) CPR 204 "Dr. D.K. Majumdar versus Anjana Basu Roy & Ors.". It was a case of operation of Inguinal Harnia and hysterectomy, during which injury to urinary bladder. It was observed that as per medical text, during surgery of Inguinal Harnia, there will be remote possibility of injury to urinary bladder, which may be a case of hysterectomy operation. It was held that it is established medical negligence. A reference has been made to another judgment 2007(3) CPJ 189 "Saroj Chandhoke versus Ganga Ram Hospital and Anr." It was a case of simple hysterectomy operation in which the complainant lost her ovaries and left kidney and she was required to undergo an other operation for control of fecal discharge from vagina. It cannot be said that because a surgeon is expert in the field, then he/she can carry out the surgery of his choice. If he does so, he/she does it at his/her own risk and after relying upon the principle of res ipsa loquitur, it was held the case of medical negligence and compensation was awarded. Here in this case, while performing cholecystectomy, Op No. 1 caused injuries to bile duct (right heptic duct), duodenum and Ileum and all the 3 injuries are not possible in case proper care should have been observed while conducting the surgery when Op No. 1 had opted for open cholecystectomy surgery. The case of the complainant is duly covered under the judgments referred above.
12. However, the counsel for the Ops has stated that such type of injuries are common complications of the procedure and in Consumer Complaint No. 202 of 2015 25 this case he has referred to the medical literature i.e. Gastrointestinal surgery Ex. Op-1/10 in which it has been mentioned that incidence of BDI during cholecystecomy has been reported to 0.3% to 0.6%. It has been further observed that these injuries are recongnized intraoperatively and immediate repair in the form of an RYHJ by an expert is the recommended approach. He has further referred to another article Ex. Op-1/11 that majority of BDI go unrecognized during the index of cholecystectomy. It has been also observed in the said article that 15% of the injuries are recognized at the time of operation and 85% of cases, the injury declares itself post-operatively. In another article Ex. Op-1/13, it has been observed that bile leak occurs in approximately 1% of laparoscopic cholecystectomy cases and most often are noted only after the patient has been discharged and symptoms typically arise 1 to 10 days after the procedure. He has referred another article Ex. Op-1/14 in which common bile duct injury and bowel injury (2.6%). It was further observed that in GB surgery, which included injury to common bile duct, followed by perforation of small bowel and colon and vascular injuries. In 2/3 cases, these remained unidentified till the conclusion of the procedure. No doubt that bile duct injuries may be common complication but it has also observed in Article Ex. Op-1/10 that 25% to 32% of bile duct injuries are recognized intraoperatively and immediate repair in the form of an RYHJ by an expert is the recommended approach. Here in the present case within one day of the operation, bile upto 650ml was collected, it was clear cut indication of suspected bile duct injury Consumer Complaint No. 202 of 2015 26 and it has been so admitted by the Ops in their written reply but immediately no corrective measures were taken by the Op Hospital. In article Ex Op-1/13, it has been observed that only 1% of the laparoscopic cholecystectomy cases while bile leak occur and its symptoms are noted from 1 to 10 days. In the present case on the next day on account of collection of bile, indication was there of injury but no corrective measures were taken. Rather Ops put their hands off that they does not have the proper procedure to identify the injuries and referred the patient to the hospital. No doubt that it took time to stabilize the patient. On 27.7.2014, corrective surgery was performed but in the meantime due to septic and hypovolemic shock, other complications arose and ultimately, it was case of MODS and the patient died. However, the problem started with the injuries caused during GB surgery. Other complications are its outcome. Therefore, Ops cannot save themselves to say that there were other causes for the death of the patient.
13. A plea has been taken by the Ops that there is no post mortem report to check the actual cause of death because the complainant did not opt for the post mortem, otherwise, post mortem would have been conducted in CMC. However, CMC has given the reasons for the death in their report Ex. C-15 referred above in which 3 injuries i.e. bile duct (right heptic duct), duodenal perforation and ileal perforation occur during Cholecystectomy has been reported. Other reasons right pleural effusion, sepsis and septic shock, ARDS, Acute kidney injury and MODS are the Consumer Complaint No. 202 of 2015 27 outcome of these injuries. It has been argued by the counsel for the complainant that non-presence of post mortem report will not absolve the negligence of Op Doctor, which has been so held by the Hon'ble National Commission in the case titled as "Pushpa Bhatnagar versus M/s Varun Hospital and others", 2016(4) CPJ 140, therefore, mere absence of post mortem report does not absolve the negligence of the Doctor. However, Ops could not deny about the presence of 3 injuries referred above identified in CMC Hospital and those too occurred during Cholecystectomy operation conducted by Ops and with regard to the known complication, it has been discussed in detailed in the judgment of the Hon'ble National Commission "Dr. Hari Ram Gupta & Anr. Versus Ashok Kumar Rawat & Ors." (supra) wherein it was observed that in case such an injury has occurred, it shows that proper care and caution was not taken by the Doctor. In that case, there was injury to the CBD but here apart from the injury to the CBD (right heptic duct), there is injury to the duodenum as well as ileal perforation. In the present case, the Ops had also taken a recourse to the open surgery and in case the operation has been conducted in open surgery then all these injuries may be less possible in case proper care is taken. Therefore, presence of such type of injuries during gall bladder operation are clear cut indication of medical negligence and our stand is further fortified from the other judgment of "Dr. D.K. Majumdar versus Anjana Basu Roy & Ors." (supra) and "Saroj Chandhoke versus Ganga Ram Hospital and Anr." (supra).
Consumer Complaint No. 202 of 2015 28
14. Counsel for the Ops has relied upon the judgment of "Jacob Mathew Vs. State of Punjab & Another" 2005(3) RCR (Crl.) 836. In this judgment, civil as well as criminal liability of the Doctor in the case of negligence has been identified, whether it is intentional or lack of care or negligence. Here there is no point of any criminal negligence. It is a case of only civil negligence. He has referred to another judgment of the Hon'ble Supreme Court reported in 2009 (3) BCR 770: 2009(2) CLT 530 "Ms. Ins. Malhotra versus Dr. A. Kriplani & Ors." In that judgment, it was held that the Doctor were duly qualified and Doctors tried their best to save life of the patient. The findings of any specific case depends upon the facts of that case, therefore, those findings cannot be applied to the present case only general observations can be followed.
15. Counsel for the Ops argued that during the admission of the patient in the hospital, the patient acquired Klebsiella, ESBL positive, as is clear from the report at page No. 774 of the CMC record. But as per the reasons of death given in the death summary of CMC, these reasons has not been given. Therefore, when there are other major problems to the patient i.e. 3 major injuries referred above, which further lead to sepsis and hypovolemic shock, ultimately leading to ARDS and MODS, then mere Klebsiella, ESBL cannot be said to be the cause of death. The matter was also referred to the Expert Board of Doctors and their report is Ex. C-110 and this Board in their opinion that probable cause of the death in this case cannot be ascertained Consumer Complaint No. 202 of 2015 29 only on the basis of record as no post mortem was conducted and referred for the expert hospital like tertiary hospital like medical college and then matter was referred to Guru Granth Singh Medical College, Faridkot and they in their opinion has referred that the patient died due to septic shock and MODS, which can be attributed to the injuries at the time of cholecystectomy at Op No. 2. Therefore, the Expert Board of the Doctors also suggested that septic shock and MODS is attributed to the injuries at the time of cholecystectomy, therefore, every probable cause for the death of the patient is the injuries at the time of cholecystectomy at Op No. 2 and not the Klebsiella ESBL as suggested by the counsel for the Ops.
16. As discussed above, the patient had gone for gallbladder operation only. No doubt that on account of adhesions, Ops converted the Laparoscopic to the Open Cholecystectomy surgery. To that extent, there is no negligence on the part of Ops and referring the patient to another hospital is also not a negligence. But during the operation, 3 major injuries were caused to the patient and when they could not control it they referred the patient to CMC, Ludhiana. In the history, when they have come to know that 650ml bile had collected then it was a suspected case of internal injuries to the bile duct or other parts. No doubt that some medicines were given to the patient to stabilize her but injuries were not identified by going for any X-ray report. ERCP and MRCP was not available in their hospital, Corrective surgery was performed in CMC, Ludhiana but in the meantime due to sepsis, Consumer Complaint No. 202 of 2015 30 hypovolemic shock and other complications, the patient could not be survived. Causing 3 major injuries to the patient i.e. Bile duct (right hepatic Duct), Duodenal perforation and Ileal perforation are not routine injuries. These have happened due to lack of proper care at the time of operation, which leads to negligence on the part of operating Doctor, otherwise, injury to the Ileal, which is quite below from the gallbladder is not possible. So far as common complication was 0.3% to 0.6% may be to the nearby organ and not to the organs far away from the gallbladder and then immediately these were not identified. The medical literature also suggest that 15% injuries are identified during the operation and remaining immediately after the operation. Therefore, such type of injuries clearly indicate the medical negligence on the part of Ops. Therefore, we hold that Ops were medically negligent while conducting the Cholecystectomy of the patient.
17. The next point is with regard to the quantum of compensation to be awarded to the complainants. As per the averments in the complaint, the patient was working as Staff Nurse at Mini Primary Health Centre at Village Khosa Dal Singh, Tehsil Zira, District Ferozepur and her salary was Rs. 54,733/-. She was aged 53 years and after the death, the complainant is receiving family pension of Rs. 26,799/-, therefore, final loss has been assessed by the complainant on account of salary loss of Rs. 11,74,000/-. In this case, both complainant No. 1 and deceased were employed. In case deceased would have been alive then 25% of salary can be taken for her own expenses, therefore, actual loss Consumer Complaint No. 202 of 2015 31 to the complainants is Rs. 8,80,500/-. Otherwise, after the retirement the deceased was to get the same pension as is being received by the complainants, therefore, there is no loss to the complainants on account of pension. A sum of Rs. 4,73,000/- was spent by the complainants on medical treatment at CMC & Hospital, Ludhiana on account of corrective surgery conducted at CMC & Hospital, Ludhiana and in case operation would have been successful operation without any medical negligence on the part of Ops then the complainants would not have suffered this amount. After adding love and affection to the family, mental physical inconvenience and shock to the family, we are of the opinion that lumpsum loss of Rs. 20 Lacs (including litigation expenses) to the complainants would be a sufficient compensation.
18. Sequel to the above, we direct the Ops to pay a lumpsum compensation of Rs. 20 Lacs to the complainants on account of medical negligence by the Ops for causing the death of wife of complainant No. 1 and mother of complainant No. 2. They are directed to pay this amount in equal shares to the complainants within a period of 45 days from the date of receipt of the copy of the order, failing which they will be liable to pay interest @ 9% p.a. from the date of order till payment.
19. In case Ops failed to comply with the order then the complainants shall be at liberty to execute the order by filing application under Sections 25 & 27 of the CP Act against the Ops. Consumer Complaint No. 202 of 2015 32
20. If the Ops are insured with any Insurance Company during that period then they can lodge their separate claim with that Insurance Company after making payment to the complainants.
21. The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases.
22. The counsel for the parties/parties are directed to collect free certified copy of the order from the office of the Commission within a period of 15 days from the date of pronouncement.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (RAJINDER KUMAR GOYAL) MEMBER February 20, 2018.
as