National Consumer Disputes Redressal
Shergill Multispeciality Hospital & ... vs Harinder Kaur & Ors. on 17 June, 2020
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 297 OF 2011 (Against the Order dated 01/06/2011 in Complaint No. 29/2007 of the State Commission Punjab) 1. HARINDER KAUR AND OTHERS WIDOW OF LATE SHRI JARNAIL SIONGH,
R/O VILLAGE & POST OFFICE DHOTIAN, TARN TARAN CHANDIGARH 2. JASWINDER SINGH, SON OF LATE SHRI JARNAIL SINGH, R/O VILLAGE & POST DHOTIAN, DIST. TARN TARAN AT PRESENT RESIDING AT HOUSE NO.80, GURU HAR RAI AVENUE OPPOSITE KHALSA COLLEGE, AMRITSAR. 3. SMT. RUPINDER KAUR D/O. LATE SHRI JARNAIL SINGH, AND W/O. LATE SHRI HUKAM SINGH, 130, RAILWAY LINK ROAD, AMRITSAR PUNJAB 4. SMT. RUPINDER KAUR, DAUGHTER OF LATE SHRI JARNAIL SINGH AND WIFE OF SHRI JASWINDER SINGH, S/O SUNDER SINGH, R/O MUSTAFABAD, BACKSIDE POWERHOUSE, VERKA, AMRITSAR. 5. SMT. JATINDER KAUR, D/O LATE SHRI JARNAIL SINGH AND WIFE OF SHRI BHUPINDER SINGH, R/O ALIWAL ROAD, BATALA, DIST. GURDASPUR. ...........Appellant(s) Versus 1. SHERGILL MULTISPECIALITY HOSPITAL AND OTHERS THROUGH DR. INDERJIT SINGH SERGIL, MAJITHA ROAD, OPPOSITE CANARA BANK, GOPAL NAGAR, AMRITSAR, 2. DR. INDERJIT SINH SHERGILL, MULTISPECIALITY HOSPITAL, MAJITHA ROAD, OPPOSITE CANARA BANK, GOPAL NAGAR, AMRITSAR. 3. - - 4. DR. AMITABH JAIRATH, MD (GASTRO-ENTEROGIST), FORTIS HOSPITAL, RANJIT AVENUE, AMRITSAR. 5. DR. ARINDAM GHOSH, MD (GASTRO-ENTEROLOGIST), SURGEON, SATGURU PRATAP SINGH, APPOLO HOSPITAL, LUDHIANA. 6. DR. MONA BASAL, MD, SENIOR RESIDENT, SGRD INSTITUTE OF MEDICAL SCIENCE AND RESEARCH, DEPT. OF ANESTHESIA, SGRD HOSPITAL, AMRITSAR ...........Respondent(s) FIRST APPEAL NO. 465 OF 2011 (Against the Order dated 01/06/2011 in Complaint No. 29/2007 of the State Commission Punjab) 1. SHERGILL MULTISPECIALITY HOSPITAL & ANR. Through Dr. Indejit Singh Shergill, Majitha Road, Opposite Canra Bank, G Gopal Nagar Amritsar 2. DR. INDERJIT SINGH SHERGILL Sherill Multispeciality Hospital, Majitha Road, Opposite Canra Bank, Gopal Nagar Amritsar ...........Appellant(s) Versus 1. HARINDER KAUR & ORS. W/o Late Shri Jarnail Singh,
R/o. Village & Post Office Dhotian,
District-Tarn Taran 2. JASWINDER SINGH S/o. Late Shri Jarnail Singh, R/o. H. No. 80, Guru Har Rai Avenue, Opp. Khalsa College Amritsar 3. - - - 4. SMT. RUPINDER KAUR D/o. Late Shri Jarnail Singh, W/o Sh. Jaswinder Singh, R/o Mustfad B/s Power House, Verka Amritsar 5. SMT. JATINDER KAUR D/o. Late Shri Jarnail Singh, W/o. Sh. Bhupender R/o Aliwali Road, Bhatla, Distt- Gurdaspur 6. - - - 7. - - - 8. - - - 9. - - - 10. - - - ...........Respondent(s)
BEFORE: HON'BLE DR. S.M. KANTIKAR,PRESIDING MEMBER HON'BLE MR. DINESH SINGH,MEMBER
For the Appellant : For the Respondent :
Dated : 17 Jun 2020 ORDER
APPEARED AT THE TIME OF ARGUMENTS
FA/297/2011
For the Appellants
:
Mr. Kawaljit Singh Bhatia, Advocate
For the Respondent 1 & 2
:
Mr. K. G. Sharma, Advocate
For Respondent No. 3
:
already deleted
For Respondents No. 4 to 6
:
NEMO
FA/465/2011
For the Appellant
:
Mr. K. G. Sharma, Advocate
For the Respondent 1 to 5
:
Mr. Kawaljit Singh Bhatia, Advocate
For Respondent No. 6
:
already deleted
For Respondents No. 7 to 9
:
NEMO
PRONOUNCED ON: 17th June 2020
ORDER
PER DR. S. M. KANTIKAR, PRESIDING MEMBER
1. On 15.08.2006 Jarnail Singh (hereinafter referred to as the 'patient') suffered severe pain in upper abdomen and back with sweating and weakness. The local practitioner in the village gave pain killer injections, but no relief. In the afternoon on the same day he got admitted in Shergill Multi Speciality Hospital (for short 'Shergill Hospital', OP-1). Dr. Shergill (OP- 2) examined the patient and started treatment but pain did not subside. On 18.08.2006 Dr. Shergill performed laparoscopic cholecystectomy (removal of gall bladder) under spinal anaesthesia. It was alleged that the OP-2 was negligent at every step of treatment i.e. making diagnosis, during operation and the post-operative care. He did not follow standards of practice and did not possess reasonable degree of skill. The patient was discharged prematurely from the OP-1 hospital. It was alleged that the patient was actually suffering from acute pancreatitis, but OP-2 wrongly diagnosed it as acute cholecystitis with cholelithisis (gall stone). To pin point the diagnosis, OP-2 did not do any confirmatory tests, radiological study and scanning from the experts. Most of the laboratory investigations were done from his own hospital laboratory. Though, Dr. Shergill was not a qualified radiologist, he performed the Ultrasonography (USG) of the patient on 16.08.2006 and opined about presence of stones in the gall bladder, but he failed to diagnose acute pancreatitis. The surgery could be avoided and only medical treatment would have helped the patient. During the hospital stay Serum Amylase test of the patient was not done. The reports were not shown to the patient or to the attendants. The histopathology report showed no evidence of gall stones, therefore it was not a case of acute cholecystitis. Thus, Dr. Shergill failed to diagnose acute pancreatitis and made false USG report. The OP-2 conducted the surgery hastily without considering that the patient's diabetic status, the patient's blood sugar level was 360.4mg% on 18.08.2006. After the surgery, the drain tube was kept in the abdomen for six days and blood stained fluid was coming from the tube which was an indication of acute pancreatitis. It was alleged that the laparoscopic cholecystectomy was done under spinal anaesthesia, but it was mentioned in record as done under general anaesthesia. The patient was discharged on 22.08.2006 though pain remained continued. Patient lost his appetite; he was unable to take solid food but was only taking liquid and semi-liquid diet. On 25.08.2006, the patient approached the OP-1 hospital for removal of stitches. On 27.08.2006 for symptoms of the pain in abdomen the OP-2 referred the patient for abdominal CT scan at Nijjar Centre and it was reported as 'acute pancreatitis with early septic changes'. The complainant further alleged that due to inadequate medical/paramedical or nursing staff, in the Shergill Hospital, the patient was taken to Fortis Hospital, Amritsar on 27.08.2006 and admitted under the treatment of Dr. Amitabh Jairat (OP- 4) till 06.09.2006. Another USG study and 2nd CT Scan was performed at Nijjar Centre on 02.09.2006 and 05.09.2006 respectively which confirmed it as 'pancreatic abscess'. On 06.09.2006 for the treatment of pancreatic abscess the patient was discharged and referred to Satguru Pratap Singh Apollo Hospital, Ludhiana (in short Apollo Hospital). There he was operated by Dr. Arindam Ghosh (O.P. No. 5) for removal of pancreatic abscess on 07.09.2006. Further, the patient underwent an emergency exploratory laparotomy on 13.09.2006, but the patient could not recover, he died on14.09.2004 in Apollo Hospital.
2. The complainant further alleged that the patient was insured with Medsafe Healthcare Ltd. and covered under Sanjivani Scheme for members of Cooperative Society but Dr. Shergill wrote to the insurance co. that the patient was alcoholic; therefore, the cashless facility from the insurance co. was rejected.
3. Being aggrieved by the misdiagnosis and the wrong treatment given by OP-2 causing death of the patient, a complaint was filed by Harinder Kaur, wife of patient seeking compensation of Rs. 99,91,737/- before the State Commission.
4. The OPs - 1 & 2 have filed their written versions and submitted that the complaint was totally vexatious and misconceived; it deserves to be dismissed with heavy cost. The OPs denied that at initial stage, the patient showed any symptoms of acute pancreatitis. The patient was presented with right sided upper abdominal pain without radiation. There was no sweating, no fever, no cyanosis or state of shock. The patient's vital signs were normal, he was passing urine normally. The patient was also examined by Dr. O.P. Sharma (a retired Professor and Head of Medicine). On 17.08.2006 the serum amylase value was at normal level. There were no signs of increase in white cell count (leucocytosis) or increase in serum amylase and serum lipase levels, therefore acute pancreatitis was ruled out. The x-ray abdomen did not show air under diaphragm, which ruled out the possibility of perforated peptic ulcer. The normal ECG and ECHO also ruled out myocardial infarction (MI). The biochemical tests (LFT) also ruled out hepatitis. Therefore, OP-2 diagnosed the patient as case of acute cholecystitis with cholelithiasis. According to OP-2 the USG is often not helpful in diagnosis of acute pancreatitis. The USG study is 90% specific for diagnosis of gall stone whereas only 40 to 60% specific for acute pancreatitis which could be missed by trained radiologist also. The OP-2 further submitted that after the operation, the gall stones and gall bladder were put into the container and handed over to the relatives of the patient to get done the histopathology examination (HPE). It was reported as chronic cholecystitis. The patient was discharged in good condition five days after the operation. The patient was brought to the hospital on 25.08.2006 for removal of stitches and he complained of pain in umbilical region. The provisional diagnosis of acute pancreatic was made, and patient was sent to Advance Diagnostic for USG and serum amylase test. The USG was suggestive of acute pancreatitis, but the serum amylase level was normal.
5. The State Commission on hearing both the sides and based on the evidence, partly allowed the complaint against OP-1 & 2 and awarded Rs.5 lakh as compensation.
6. Being aggrieved, parties on both the sides filed two separate appeals before this Commission. The first appeal no. 297 of 2011 has been filed by the complainants for enhancement of compensation and the first appeal no. 465/2011 has been filed by the OPs for dismissal of the complaint.
7. We have heard the learned counsel for both sides and perused the entire material on record. Learned counsel on both the sides have reiterated and made their submissions as stated in their respective affidavits of evidence. The learned counsel for the complainants argued that as a result of misdiagnosis and performed wrong operation by OP-2 on 18-8-2006, the patient suffered acute pancreatitis and further complication as Pancreatic Abscess. Therefore, the patient underwent operations on 7-9-2006 and 13-9-2006 at Apollo Hospital. The learned counsel for OPs vehemently argued and denied the negligence of OPs. The counsel for OPs reiterated the affidavits of evidence filed by the respective OPs.
8. The crux of this case is whether negligently OP-2 diagnosed the case as acute cholecystitis with cholelithiasis instead of acute pancreatitis, wherein surgery could have been avoided.
9. We have carefully perused the entire medical record. The history recorded by OP-2 on 15.08.2006 that;
"Acute pain upper right abdomen- 1 day xxxx....
No h/o vomiting, hematemesis, malena or jaundice.
Pt gives h/o taking alcohol for many years."
Provisional diagnosis: 1. Ac.Cholecystitis with cholelithiasis
2. Ac. Pacreatitis
3. Ac. MI
4. Hepatitis We note depending on the symptoms, on 16-8-2006 abdominal USG, X-ray chest, ECG and blood tests were advised.
On 17.08.2006 :
The vitals Normal, Patient shown some improvement.
Called Dr.O.P.Sharma for medical assessment and opinion.
Advised Blood LDH, PTI and Sr. Amylase.
Pre-anaesthetic check-up call given to Dr. Mona Bansal.
On 18.08.2006 patient was operated. We find the proper informed consent is on record.
Post-operative period was uneventful; no signs of biliary leak and patient was discharged on 22.08.2006, and called on 25.08.2006 for removal of stitches.
10. Thus, it is clear that based on the patient's symptoms of pain in abdomen OP-2 himself performed the USG and reported as presence of gall stones in gall bladder. The complainant alleged that USG study requires a skilled operator and OP-2 does not possess any qualification in Radio-Diagnosis (M. D. - Radiology) as he was M. S. in general surgery. In our view in a routine practice, an experienced surgeon or a gynaecologist can do the USG., however the treating doctor arrive to the diagnosis on the basis of clinical examination, signs and symptoms of the patient. Thus, in our view, OP-2 has not committed any breach of duty of care or deviation from the standard of practice. It is pertinent to note that sometime the experienced radiologist also fail to detect gall stones during USG study, because few artefacts mimic gallstones. It may amount to the error of judgment, but not negligence under such circumstances. The histopathology diagnosis confirmed it as chronic cholecystitis.
11. The treating doctor shall choose the mode of treatment depending on his clinical diagnosis. On 15.08.2006, the patient had abdominal pain but there were no signs or symptoms of acute pancreatitis; therefore serum amylase estimation was not warranted at that time. We note the serum amylase done on 25.08.2006 and 26.08.2006 was 18 u/L and 21 u/L. Both values were normal and not suggestive of acute pancreatitis. The CT scan dated 27.08.2006 showed pancreatitis with early septic changes, but there was no biliary leak, injury or perforation which may cause septic changes. The serum amylase (38 u/L) and lipase (134 u/L) were normal. Therefore, we do not agree with the contention of complainant that the OP-2 failed to do the serum amylase test during the hospitalisation, and failed to make an early diagnosis of acute pancreatitis.
12. As per the medical literature, the pancreatic abscess is sequelae of acute pancreatitis. It is evident from the reports from Advanced Diagnostics, the Nijjar Lab, the Fortis Hospital, and Apollo Hospital that the findings were suggestive of Acute Pancreatitis which subsequently developed pancreatic abscess. In the instant case, on 02.09.2006 i.e. two weeks after the Cholecystectomy the patient showed radiological signs of acute pancreatitis. Thus, it was a mere presumption and misbelief of the complainant that it was the case of acute pancreatitis which OP-2 failed to diagnose at the initial stage on 18.08.2006. Thus, we do not agree that the cholecystectomy was unnecessarily performed by OP-2. Though the histopathology report did not mention about gall stones, but it was the case of chronic cholecystitis which was properly treated by Cholecystectomy. It is evident from the medical record that OP-2 performed cholecystectomy after excluding other possibilities of abdominal pain including acute pancreatitis with due investigations. In our considered view, there was no deficiency or breach in the duty of care from OP-2, who treated the patient reasonably as per the standard of practice. Our this view dovetails from the decisions of Hon'ble Supreme Court while dealing with medical negligence in the Jacob Mathew's case (2005) SCC (Crl.) 1369 enunciated that,
25. xxx.....
Court further observed that, "When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions."
In another case of Achutrao Haribhau Khodwa and others versus State of Maharashtra and others (1996) 2 SCC 634, has observed as follows:
"The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession, and the Court finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence."
13. We further have gone through the standard books on Surgery [Bailey & Love's Short Practice of Surgery, 24th ed, Maingot's Abdominal Operations]12th ed] and Surgical Gastroenterology [Blumgart's Surgery of the Liver, Pancreas and Biliary Tract, 5th ed].
Chronic cholecystitis is a state of prolonged gallbladder inflammation typically caused by recurrent episodes of cystic duct obstruction by gallstones. It may resolve spontaneously or progress to cause complications including biliary colic, cholecystitis, cholangitis, or pancreatitis. The presenting symptoms of acute pancreatitis are typically abdominal pain and elevated pancreatic enzymes, which are evident in blood and urine testing because of an inflammatory process in the pancreas. These clinical manifestations may present with an "acute abdomen" and shock. About half of patients experience radiation to the back, nausea and vomiting occur in 85% of patients before admission to hospital. Abdominal examination shows tenderness with guarding in the upper abdomen. Acute pancreatitis may also present without abdominal pain but with symptoms of respiratory failure, confusion, or coma. Low-grade to moderate fever is not uncommon in acute pancreatitis. Tachycardia and hypotension, mild jaundice, and pleural effusion may be found.
In the instant case the patient did not show such symptoms or signs.
14. Based on the medical references from standard books and the discussion above it was the case of acute abdomen. Initially, the patient did not show symptoms or signs of acute pancreatitis. Therefore, OP-2 advised relevant blood and radiological investigations. Before arriving to the diagnosis of Acute Cholecystits and Cholelithiasis, theOP-2 ruled out the other possibilities like Gastric Perforation, Acute M.I. or Hepatitis. Thus, in our view it was a reasonable standard practice and duty of care from a treating surgeon. It was neither deviation from standard practice nor breach of duty of care. It is pertinent to note that post cholecystectomy pancreatitis is an uncommon and rare complication. In the instant case the patient developed pancreatitis after one week of cholecystectomy operation. There appears no fault or negligence while performing the laparoscopic cholecystectomy. As per medical text, patient developed pancreatic abscess as sequel of acute pancreatitis, which has no relation with laparoscopic cholecystectomy.
15. Based on the foregoing discussion, in the given facts and the entire evidence adduced before us, it is not feasible to attribute negligence / deficiency on the OP-1 hospital and OP-2 doctor, it is difficult to conclusively establish medical negligence / deficiency on the said OP hospital and OP doctor; as such, the State Commission erred to hold the OP-1 hospital and the OP-2 doctor liable for medical negligence / deficiency. The impugned order dated 01.06.2011 of the State Commission is set aside. The appeal FA 465 of 2011 is allowed and the appeal FA 297 of 2011 is dismissed. Resultantly the complaint is dismissed.
...................... DR. S.M. KANTIKAR PRESIDING MEMBER ...................... DINESH SINGH MEMBER