State Consumer Disputes Redressal Commission
Harjinder Singh Sidhu vs Ramesh Gill on 26 April, 2018
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.790 of 2017
Date of Institution : 22.11.2017
Order Reserved on: 20.04.2018
Date of Decision : 26.04.2018
1. Dr. Harjinder Singh Sidhu,
2. Dr. Ranpinder Kaur,
3. Amrit Hospital,
all at Amrit Hospital, Sant Nagar, Amritsar Road, Moga,
Punjab.
.....Appellants/opposite parties
Versus
1. Ramesh Gill w/o Sh. Raj Kumar Gill, R/o V.P.O. Bagha
Purana, Distt. Moga, Punjab.
.....Respondent no.1/complainant
2. The New India Assurance Co. Ltd., B.O.-First Floor, 195, Soti
Ganj Meerut, Uttar Pradesh..
.....Respondent no.2/opposite party no.4
First Appeal against order dated
20.09.2017 passed by the District
Consumer Disputes Redressal Forum,
Moga.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member
Smt. Surinder Pal Kaur, Member Present:-
For the appellants : Dr. Harjinder Singh Sidhu, in person with Sh. Saajan Singla, Advocate For respondent no.1 : Sh. Harkaran Singh, Advocate For respondent no.2 : Sh. Parminder Singh, Advocate ............................................ J.S. KLAR, PRESIDING JUDICIAL MEMBER :-
Challenge in this appeal by appellants is to order dated 20.09.2017 of District Consumer Disputes Redressal Forum Moga (in short the 'District Forum'), accepting the complaint of respondent no.1 of this appeal against appellants by directing them to pay First Appeal No.790 of 2017 2 compensation, as detailed in the order. The appellants of this appeal are opposite party nos.1 to 3 (OPs) in the complaint before District Forum and respondent no.1 of this appeal is complainant therein and respondent no.2 of this appeal is opposite party no.4 (OP no.4) therein and they be referred as such hereinafter for the sake of convenience.
2. The complainant filed the complaint against OPs U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act"), on the averments that she was having stone in her gallbladder and she approached OPs to cure her problem. She was admitted in OP no.3 hospital by OP.1 on 03.06.2015 for removal of her gallbladder stone by performing Laparoscopic Surgery. It was further averred that without getting any latest test reports, OP nos.1 and 2 started the process of surgery on her on the basis of the previous test reports only. She was under the impression that OP nos.1 and 2 were educated and degree holders doctors and they would do each and every act, as per medical protocol, but they conducted open surgery instead of Laproscopic Surgery on her without getting her consent or any of her attendants. This fact came to the knowledge of complainant on 05.06.2015 after the surgery, when she felt severe pain and she enquired about the same from OPs as to why she suffered from pain, as her surgery was Laparoscopic and this type of surgery did not cause more pain, but OPs disclosed that they had conducted open surgery instead of Laparoscopic surgery and this act of OPs was totally illegal and against the medical protocol and First Appeal No.790 of 2017 3 norms. She was discharged from OP's hospital on 07.06.2015 and OPs charged an amount of Rs.50,000/- as charges for her surgery. She further incurred the expenses of Rs.50,000/- on medicines and her special diet. Thereafter, she was called for opening of stitches on 10.06.2015, when OPs opened the stitches, then stool was coming from one of her stitches. OPs stated her that again a minor surgery would have to be conducted, because there was complication in the earlier surgery and they demanded Rs.50,000/- for this new procedure. It was further averred that she was not satisfied with OPs, and she was taken to Dr. Mittal for the ultrasound, who referred her to some reputed and renowned hospital, because her condition was very critical. She was taken to CMC Hospital, Ludhiana and she got admitted thereat on 11.06.2015, where again a surgery was conducted upon her on 12.06.2015 and it was found by the doctors of CMC Hospital, Ludhiana that her earlier surgery was not conducted properly and so many veins of her were ruptured by OPs by stitching them wrongly, which was incurable. Due to this act and conduct of the OPs, her condition was still critical and she was lying admitted in ICU of CMC Hospital, Ludhiana and it all had happened due to the negligent act and deficient conduct of OPs. The complainant came to know that such like wrong acts were committed by OPs with many other patients, who already died, but they had been able to cover up the matter with the help of money. She sent legal notice dated 17.06.2015 to OPs, but to no effect. Due to the above negligent act and conduct of OPs, she suffered undue mental First Appeal No.790 of 2017 4 tension, harassment and financial loss. The act of OPs amounted to deficiency in service and unfair trade practice on their parts. She prayed that OP nos.1-3 be directed to refund the amount of Rs.50,000/- charges of surgery; further to pay Rs.5,00,000/- as compensation for medical expenses incurred by her in CMC Hospital Ludhiana; further to pay Rs.10,00,000/- as compensation for deficiency in service and unfair trade practice; to pay Rs.11,000/- as legal expenses.
3. Upon notice, OP nos.1-3 appeared and filed written reply by raising preliminary objections that the complaint is only an abuse of process of law. The complaint is alleged to be baseless, frivolous and vexatious being founded on wrong premise. There is no report of the board of doctors specialized in the field of surgery before filing the complaint and hence the complaint is not maintainable. No medical negligence or deficiency in service has been involved on the part of OPs in treating the complainant. The complainant has not pleaded as to what was required under medical practice which ought to be done, which has not been done or what was done, which was not required for constituting the medical negligence in this case. If doctors perform their duty with due exercise of ordinary degree of professional skill and competence, they cannot be held medically negligent. There is no evidence documentary or other evidence which could point out the medical negligence on the part of answering OPs to the effect that she was not treated, as per medical procedures. No case of medical negligence is made out against the First Appeal No.790 of 2017 5 answering OPs, which warranted allowing the complaint in favour of the complainant and against them. The complainant has not come before this Forum with clean hands and has concealed the material facts from this Forum. The complaint has been filed by the complainant only with the sole objective of harassing and blackmailing the answering OPs to extort huge amounts of money from them. There was no medical negligence, if doctors perform their duties and exercise ordinary degree of, professional skill and competence, and mere deviation from normal professional practice is not necessarily evidence of negligence. It was further averred that treating doctor i.e. OP no.1 i.e. Dr. Harjinder Singh Sidhu is a well- known medical practitioner (Surgeon) and is a renowned and senior surgeon and has done various successful Surgeries in his long span of career. The said doctor is a respectable and a law-abiding citizen and has always treated his patients with utmost due care and followed all the medial ethics in true spirit and has rendered the true service to humanity. OP no.3 i.e. M/s Amrit Hospital is a well Minimal Access Surgery Centre with an experience of more than 5000 Laparoscopic Surgeries which included laparoscopic abdominal surgery like Gall Bladdar, Appendix, Hernia, Hysterectomy, Ovarian tumors and ectopic pregnancies etc. The doctors at OP no.3 hospital are having substantial experience and skills to administer treatments to their patients. OP no.1 a respectable and a law-abiding citizen and has always treated his patients with utmost due care and followed all the medical ethics in true spirit and has rendered the true service to First Appeal No.790 of 2017 6 humanity. Ramesh Rani complainant was admitted on 03.06.2015 for operation of Gallbladder Stone in OP no.3 hospital by OP no.1. She was posted for Laparoscopic Cholecystectomy. Pre-operative Ultra Sound was done on her showing Chronic Cholecystitis. Hematological Investigation and ECG performed, which were normal. She was found fit for the operative procedure. The risks involved in Laparoscopy Procedure and complications arising therefrom were duly explained to the complainant and her relatives. The Laparoscopy Procedure was undertaken, but due to lots of adhesions at calot's triangle, the vascular and biliary structures were unidentifiable and it was converted into open Cholecystectomy. Drain was put in Morrison's pouch to monitor any biliary or Gut content leakage. The written consent of the complainant and her daughter, before surgery was obtained after explaining the risks involved in the treatment. It was further averred that OP no.1 operated 116 cases of Gall Bladder Stone in one present year from 1 August 2014 till 31 July 2015, out of 116 cases, 115 cases of Gall Bladder Surgery (Laparoscopic) were successful and only one case of the complainant was converted into open Cholecystectomy. Incidence of conversion from Laparoscopic Cholecystectomy to open Cholecystectomy is only 0.86%, which fall well within university of Mary Land Guidelines of 5% conversions, as mentioned on page no.142-143, Surgical Laparoscopy Update by Karl A. Zucker (The Medical Literature). After post-operative two days i.e. on 04.06.2015, the patient was having no vomiting, nor fever and her abdomen was First Appeal No.790 of 2017 7 soft and she passed flatus, drain showing 100 ml of serous discharge was emptied. She was allowed liquid orally with one or two biscuits and made ambulatory on 3rd day i.e. on 05.06.2015. The patient was allowed Liquid with semi solids. Drain showed no discharge hence removed. On 4th day i.e. 06.06.2015, patient was advised liquid semi solids. On 5th day i.e. 07.06.2015, patient's abdomen was soft and she was advised for take liquid semi solids, Dal, Roti etc. and she was discharged in satisfactory condition. She was called for checkup and for removal of stitches on 10.06.2015. On 10.06.2015, she walked herself in OPD of OP no.1, OP no.1 enquired about her health condition of her and she was fully satisfied. She gave no history of vomiting fever or any abdominal pain, her pulse and blood pressure were normal. While removing the stitches, the Umbilical Port showed slight biliary discharge, OP no.1 got suspicious of small bowel perforation, he immediately conveyed to the patient and her husband and advised them for admission for another surgery. Patient left the hospital on the pretext of going home and came back after few hours. But she went to M/s Satya Paul Mittal Hospital, Moga, where Dr. Navraj Singh examined her and her ultra sound was performed which turned out to be normal, patient requested to Dr. Navraj Singh to refer her to CMC & Hospital, Ludhiana, which Dr. Navraj Singh did. Even the patient approached OP no.3 hospital on the same day 10.06.2015 at 8 pm for further treatment. The entire case of complainant was discussed with Dr. Satpal Singh Virk, M.Ch. Gastro surgery Professor and Head, Deptt. First Appeal No.790 of 2017 8 Gastro surgery DMC & Hospital Ludhiana, who also opined for conservative management of this low enterocutaneous fistula. These small gut fistulas of low output usually heal (close) in 40% cases in 4 to 6 weeks time, as mentioned on page number 609 of 10th Edition Maingot's Abdominal Operations Text Book followed worldwide. On 11.06.2015 at 3.45 pm, the patient demanded discharge on request and she was discharged. She reached CMC & Hospital, Ludhiana on 11.06.2015, as mentioned in their own record, with discharge summary, there was no other presenting symptoms except discharge from the umbilical port, on examination they found her pulse Blood pressure normal, Abdomen soft non-tender no mass felt bowel sounds present except discharge from the umbilical port, her hematological investigations were normal, no significant collection in the abdomen seen on ultra sound scan and CECT abdomen, Extravasations of contract from proximal ileal loop through a track into the subcutaneous plane in supra-umbilical region suggestive of entrocutaneous fistula. Taking the note of all these investigation and her physical condition, as patient being ambulatory and taking orally, bowls movements normal, passing flatus and stool, no sign of sepsis or peritonitis, patient should have been managed conservatively. From the first day of operation i.e. 03.06.2015 till 12.06.2015 of second operation, which was done at CMC & Hospital, patient's condition was stable hemodynamically with no fever and no vomiting, abdomen soft indicating no need of any emergency surgical intervention. Surgical intervention should have been waited First Appeal No.790 of 2017 9 for 4-6 week giving time for spontaneous closure of entrocutaneous fistula. But this surgical intervention further led to further complications, as mentioned in her own discharge summary, leading to increase in hospital stay and financial burden. In the discharge summary, it was mentioned that post operatively she continued to have feculent discharge from the midline laparotomy wound making higher output entrocutaneous fistula before operation into high output entrocutaneous fistula which endangered the life of the patient, her loop stoma created by surgical procedure did not function leading to this grave feculent discharge from the midline laparotomy wound (high output entrocutaneous fistula). The Bowl injury is a complication of Laparoscopic surgery and it is well evaluated and documented in British Journal of surgery 2004; 91:1253-1258. Of the total evaluated 29532 procedures 105 bowel injuries occurred i.e. 0.36% small intestine was most frequently effected (227 injuries; 55.8%). The laparoscopic instruments that caused injury are summarized in table 5. On page 1256 Bowel injuries occurred most frequently (41.8%) during the access phase of laparoscopy, inflicted by insertion of a veress needle or a trocar. The said complication occurred during the access phase of umbilical port by the guided Trocar. The rate of bowel injury during laparoscopic Cholecystectomy is between 0 to 0.4% in reported cases. The jejunum ileum and colon are susceptible to Veress needle and Trocar injury as mentioned on page 127 of Text Book "Laparoscopic Surgery of Abdomen by Bruce V.MacFadyen, Jr. Senior Editor". First Appeal No.790 of 2017 10 Keeping in view the above stated procedure along with reference, Well documented studies and Text Books of world Repute it's a case of insignificant, very low output entero-cutaneous fistula of ileum (small gut), a complication of laparoscopic surgery, could have been managed well by conservative treatment (as 7% cases were managed conservatively as show in the current study). OP no.2 also submitted that she has no relation with the alleged allegations made against her in the alleged complaint, as the said OP did not give any treatment of surgery to the patient/complainant. The complaint was contested by OP nos.1-3 even on merits on the above referred grounds by denying any medical negligence and deficiency in service on their part. The answering OPs prayed for dismissal of the complaint. OP no.4 was proceeded against exparte by the District Forum.
4. The complainant tendered in evidence her affidavit Ex.C-1 alongwith copies of documents Ex.C-2 to Ex.C-116 and closed the evidence. As against it, OP nos.1-3 tendered in evidence affidavit of Dr. Harjinder Singh Sidhu Ex.OP1,2,3/1, affidavit of Dr. Satpal Singh Virk Ex.OP1,2,3,/2 alongwith copies of documents Ex.OP1,2,3/3 to Ex.OP1,2,3/16 and closed the evidence. On conclusion of evidence and arguments, the District Forum accepted the complaint as referred to above. Aggrieved by above order, OP nos.1-3 now appellants have preferred this appeal against the same.
5. We have heard appellant no.1 in person and learned counsel for the parties and have also examined the record of the First Appeal No.790 of 2017 11 case. Evidence on the record has to be referred to, coupled with the pleading of the parties to come this conclusion as to whether any medical negligence in the surgery of the complainant has been established on the part of OP no.1 in the hospital of OP no.3 or not. The complainant tendered in evidence her affidavit Ex.C-1 and she stated that OP no.1 conducted the surgery of her removal of gallbladder stone on the basis of previous reports without any fresh investigation. She further stated that her laparoscopic surgery was converted into open cholecystectomy, but her consent was never taken nor this fact was explained to her by OPs and hence it is grave negligence on the part of OPs. It has further transpired in her statement that she started feeling pain after surgery conducted by OP no.1. While removing the stitches, it was stated to her by OP no.1 that there was some problem in the previous surgery and to correct that fresh surgery would be required and OPs demanded Rs.50,000/- for it again. She further stated that she contacted Dr. Mittal and thereafter she was referred to CMC Hospital Ludhiana, where her surgery was again conducted. The doctors at CMC Hospital Ludhiana found that the earlier surgery was not conducted properly and her many vein were ruptured by OP no.1 and were stitched wrongly thereafter. She remained admitted in CMC Hospital Ludhiana due to this complication caused due to negligent act of OPs. She served legal notice Ex.C-2 dated 17.06.2015 in this regard, coupled with postal receipt Ex.C-3. Ex.C-4 is the list of expenses. Ex.C-5 is copy of discharge summary issued by OP no.3 First Appeal No.790 of 2017 12 hospital. Ex.C-6 is her ultrasonography report. Ex.C-7 is the copy of discharge summary issued by C.M.C. Hospital Ludhiana, where she was diagnosed as entero-cutaneous fistula, status laparoscopic converted into open cholecystectomy (3.6.15) (outside). In brief history, she was stated as 60 years old lady, status laparoscopic converted to open cholecystectomy on 03.06.2015 (outside) presented with chief complaints of feculent discharge from umbilical port site x 1 day. She suffered the complication of entero-cutaneous fistula due to performance of surgery conducted by OP no.1 and was referred to CMC for this purpose, where she was treated vide Ex.C-7. Ex.C-8 to Ex.C-116 are the bills for medicines and expenses incurred by her on her treatment. The submission of counsel for complainant during arguments is that the discharge summary of CMC Hospital Ludhiana Ex.C-7 has proved this fact on the record that she suffered entero-cutaneous fistula due to this surgical procedure conducted by OP no.1 at OP no.3 hospital earlier in a negligent manner. Her laparoscopic status was converted to open cholecystectomy and she presented with chief complaints of feculent discharge from umbilical port site from first day. The submission of counsel for complainant is that no consent of complainant was taken nor it was explained to her that OPs was converting the laparoscopic surgery to open cholecystectomy and also bowel injury to her resulting into above referred complications. The submission of counsel for complainant is that, even no tests of the complainant First Appeal No.790 of 2017 13 were conducted before starting the surgery by OPs and they are deficient on this point.
6. The OPs led rebuttal evidence on the record to refute the allegations of complainant. Ex.OP1,2,3,/1 is the affidavit of Dr. Harjinder Singh Sidhu in evidence on the record. He has stated that he is qualified surgeon and has done various successful surgeries in his long span of career. OP no.3 hospital is a well minimal access surgery centre with an experience of more than 5000 laparoscopic surgeries, which included laparoscopic abdominal surgeries like gall bladder, appendix, hernia, hysterctomy, ovarian tumors and ectopic pregnancies etc. OP no.3 hospital is having substantial experience and skills to administer treatments to its patients admitted at OP no.3 hospital. He further deposed that incidence of conversion from Laparoscopic Cholecystectomy to open Cholecystectomy is only 0.86%, which fall well within university of Mary Land Guidelines of 5% conversions as mentioned on page no.142-143, Surgical Laparoscopy Update by Karl A. Zucker (The Medical Literature). After post-operative two days i.e. on 04.06.2015, the patient was having no vomiting, no fever and her abdomen was soft, passed flatus, drain showing 100 ml of serous discharge was emptied. She/patient was allowed liquid orally with one or two biscuits and made ambulatory on 3rd day i.e. on 05.06.2015. The patient was allowed Liquid with semi solids. Drain showed no discharge hence removed. On 4th day i.e. 06.06.2015, patient was advised liquid semi solids. On 5th day i.e. 07.06.2015, patient's abdomen was soft First Appeal No.790 of 2017 14 and she was advised for take liquid semi solids, Dal, Roti etc. and she was discharged in satisfactory condition by OP no.1. She was called for checkup and for removal of stitches on 10.06.2015. On 10.06.2015, she walked herself in OPD of OP no.1, OP no.1 enquired about her health condition and she was fully satisfied with the procedure carried out by OP no.1. This witness has further testified on oath that the Bowl injury is a complication of Laparoscopic surgery and it is well evaluated and documented in British Journal of surgery 2004; 91:1253-1258. Of the total evaluated 29532 procedures 105 bowel injuries occurred i.e. 0.36% small intestine was most frequently effected (227 injuries; 55.8%). The laparoscopic instruments that caused injury are summarized in table
5. On page 1256 Bowel injuries occurred most frequently (41.8%) during the access phase of laparoscopy, inflicted by insertion of a veress needle or a trocar. The said complication occurred during the access phase of umbilical port by the guided Trocar. The rate of bowel injury during laparoscopic Cholecystectomy is between 0 to 0.4% in reported cases. The jejunum ileum and colon are susceptible to Veress needle and Trocar injury, as mentioned on page 127 of Text Book "Laparoscopic Surgery of Abdomen by Bruce V.MacFadyen, Jr. Senior Editor". Keeping in view the above stated procedure along with reference, Well documented studies and Text Books of world Repute it's a case of insignificant, very low output entero-cutaneous fistula of ileum (small gut), a complication of laparoscopic surgery, could have been managed well by First Appeal No.790 of 2017 15 conservative treatment (as 7% cases were managed conservatively as show in the current study). Dr. Satpal Singh Virk (M.ch Gastro Surgery) tendered his affidavit in evidence Ex.OP1,2,3,/2 and testified that OP no.1 Dr. Harjinder Singh Sidhu approached him with complete treatment record of Ms. Ramesh Gill complainant for getting his consultation. He gave due consideration to the facts available in the aforesaid documents in details and after carefully going through these documents, he gave the observation as under:
(i) That complainant was admitted on 03.06.2015 for gall stone operation. She was posted for laparoscopic cholecystectomy.
Pre-operative ultra sound was done showing chronic cholecystitis cholethiasis. Haemotoligical investigation and ECG performed was found to be normal. She was found fit for the operative procedure.
(ii) Thereafter, the laparoscopic surgery was undertaken, due to lots of adhesions at calots triangle, the vascular and biliary structures were unidentifiable, for which open cholecystectomy procedure was adopted.
(iii) That drain to monitor any intra abdominal collection of bile or fecal contents was placed in Morrison pouch which indicated no biliary or fecal content leakage intra-abdominally during post operative period.
(iv) That patient was called on 10.06.2015 for follow up. On removal of stitches a very slight discharge from umbilical port First Appeal No.790 of 2017 16 was noticed. This low output entero cutaneous fiscula could be managed by conservative treatment within 4-6 weeks." This witness further stated that as per his opinion, Dr. Harjinder Singh Sidhu OP no.1 managed the case, as per prescribed protocol applicable to the case. Ex.OP1,2,3/3 is the medical treatment record of complainant issued by OP no.3 hospital. Ex.OP1,2,3/4 is the ultrasonography report of complainant dated 10.06.2015 by Dr.Satya Pal Mittal. Ex.OP1,2,3/5 is the slip for referring the complainant to CMC Hospital Ludhiana by Dr. Satya Pal Mittal. Ex.OP1,2,3/6 and 7 are the ultrasound reports of complainant. Ex.OP1,2,3/8 is the discharge card issued by OP no.3 hospital to complainant. Ex.OP1,2,3/9 is medical bill issued by OP no.3 hospital of Rs.15,230/- with test reports. Ex.OP1,2,3/10 to 13 are the medical literatures on the record. The submission of counsel for OPs is that OP no.1 is qualified surgeon and he undertook the due care, as expected of him in conducting the surgery upon complainant. It is further submitted that there is no medical negligence in this case, because the surgeon followed the medical protocol, while carrying out above procedure for removal of gallbladder stone of complainant. The counsel for OPs further argued that complaint is an abuse of process of law filed just to extract money from OPs by her.
7. From careful appraisal of evidence on the record and hearing the respective submissions of counsel for parties, we have come to this conclusion that during surgery conducted by OP no.1 at OP no.3 hospital of complainant, she faced bowel injury therein. No First Appeal No.790 of 2017 17 prompt efforts were made by OP no.1 to repair this bowel injury on the complainant. The complainant suffered consequences on account of this fact and she suffered from entero cutaneous fistula. There was feculent discharge from umbilical port site from first day, as recorded in the discharge summary Ex.C-7 issued by Christian Medical College & Hospital Ludhiana (CMC). The complainant was suffering from no such consequences before she was operated upon for gallbladder stone surgery by OP no.1 in this case. OP no.1 conducted open cholecystectomy instead of laparoscopic on complainant at OP no.3 hospital for removal of her gallbladder stone. After surgery, she suffered complications and experienced pain. OP no.1 asked her for another surgery and demanded Rs.50,000/- from her for that purpose. She went to Dr. Satya Pal Hospital, where her ultrasonography was conducted and report Ex.C-6 dated 10.06.2015 recorded that gall bladder not visualized and she was referred to CMC Hospital Ludhiana on request. Now the point for consideration is whether the bowel injury suffered by complainant during her surgery conducted by OP no.1 is deficiency in service and medical negligence on the part of OP no.1 or not. The submission of counsel of OP nos.1-3 is that on account of adhesions of calot's triangle, the anatomy was not property identifiable. Our attention has been drawn to Ex.C-5 and Ex.OP1,2,3/3, the patient record. There is nothing on the record brought to our notice that this injury was inevitable. OPs should have taken the help of the medical instruments to properly identify the situ of gallbladder stone, so as to avoid this biliary injury. First Appeal No.790 of 2017 18 Even if this injury was caused, even then efforts should have been made by OPs to correct it by repairing it to avoid further damage. Nothing has been done in this case by OPs. OP no.1 demanded further money for another surgery, whereupon the complainant contacted Dr. Mittal, who found entero cutaneous fistula in her case being the consequence of post gallbladder surgery performed by OP no.1 and referred her to CMC Hospital Ludhiana. The counsel for OPs drew our attention to medical literature Ex.OP1,2,3/10 to the effect that the biliary fistula is the second most common complication occurring after pancreatoduodenectomy. Herein, in this case, if there was any complication accrued, then prompt efforts should have been made by OPs to repair it, which has not been done in this case, leading to further complications. Sepsis is the most common complication of enterocutaneous fistulas after this surgery. In this case, on account of non-repair of biliary injury postoperatively, which complicated this matter leading her admission in CMC hospital, the damage was caused to complainant. The incidence of bowel perforation is 0.22%, which is virtually non existent and coming to reduction point with the help of technology. The complainant suffered from main complaint of feculent discharge from umbilical port site on one day. The counsel for the appellants referred to slew of authorities on this point by relying upon law laid down in "Jacob Mathew (Dr.) Vs. State of Punjab & another" III(2005)CPJ-9(SC) by the Apex Court that negligence in context of medical profession necessarily calls for treatment with difference; difference between First Appeal No.790 of 2017 19 occupational negligence and professional negligence : Standard to be applied to hold professional negligent : Simple lack of care, error of judgment or accident is not proof of negligence on part of medical professional : Failure to use special or extraordinary precautions which might have prevented particular happening cannot be standard for judging alleged negligence : Res ipsa loquitur is only rule of evidence and operates in domain of civil law especially in cases of torts and helps in determining onus of proof in actions relating to negligence. Reference was also made to law laid down in "Kusum Sharma & Others Vs. Batra Hospital & Medical Research Centre & others" 2010(1)CPC-460 by the Apex Court that negligence cannot be attributed to a doctor so long as he performed his duty with reasonable skill and competence.
8. The next submission of counsel for OPs is that there is no expert body's report holding any medical negligence on the part of OPs. The counsel for OPs also relied upon affidavit of Dr. Satpal Singh Virk to the effect that OPs provided the proper line of treatment to the patient. Much emphasis has been laid on this point that that without the report of expert body of doctors, no negligence can be found against the doctors. We find no force on this point, because the Apex Court has held in "V. Kishan Rao Vs. Nikhil Super Specialty Hospital and another" in Civil Appeal no.2641 of 2010 arising out of SLP (C) no.15084/2009 that expert medical witnesses not required in each and every case. Some time, the principle of res ipsa loquitur applies and the Court can judge the First Appeal No.790 of 2017 20 negligence on the basis of evidence. The uncaring attitude after surgery in repairing the biliary injury tantamounts to negligence of OPs in our view. This circumstance is sufficient to point out the needle of negligence towards OPs in this case. No specific consent of complainant was taken for converting laparoscopic procedure to open surgery procedure in this case. The consent of complainant should have been taken by OPs and this fact has neither been explained to complainant nor she was informed by OPs about this fact. The OPs are deficient on this point as well by keeping the complainant uninformed regarding the conversion of laparoscopic surgery to open surgery. Undoubtedly, the complainant has to prove the negligence, but once the initial onus has been discharged by complainant, the onus then shifts to the doctor to satisfy the Forum about lack of negligence. Why, OPs demanded another amount of Rs.50,000/- from complainant for another surgery instead of repairing the biliary injury, is negligence and deficiency of OPs in this case. We, thus, find no illegality or infirmity in the order of the District Forum under challenge in this appeal and the same is affirmed by us.
9. As a result of our above discussion, there is no merit in the appeal and the same is hereby dismissed.
10. The appellants had deposited the amount of Rs.25,000/- at the time of filing the appeal. This amount with interest, which accrued thereupon, if any, be remitted by the Registry to respondent no.1 being complainant by way of crossed cheque/demand draft First Appeal No.790 of 2017 21 after 45 days from the date of this order, subject to stay order, if any. Remaining amount shall be paid by OPs to complainant, as per order of the District Forum.
11. Arguments in this appeal were heard on 20.04.2018 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.
12. The appeal 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 April 26, 2018 MM