Jammu & Kashmir High Court
Dr. Yash Pal Gandotra vs Dr. Renu Gupta And Anr. on 19 July, 2017
Equivalent citations: AIR 2017 JAMMU AND KASHMIR 129
Bench: Alok Aradhe, Sanjeev Kumar
Regular list
Item No. 6
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CIMA No.202/2015, MP Nos.1/2015 & 1/2016
c/w
Cross Appeal (C) No.11/2015
Date of order: 19.07.2017
Dr. Yash Pal Gandotra v. Renu Gupta and Anr.
Renu Gupta v. Dr. Yash Pal Gandotra
Coram:
Hon'ble Mr. Justice Alok Aradhe, Judge
Hon'ble Mr. Justice Sanjeev Kumar, Judge
Appearing counsel:
For the Appellant/petitioner(s) : Mr. V. Bhat, Advocate.
For the Respondent(s) : Mr. S C Mansotra, Advocate.
i/ Whether to be reported in : Yes
Press/Media
ii/ Whether to be reported in : Yes
Digest/Journal
Per-Alok Aradhe, J:-
Both these appeals have been filed against the order dated 07.07.2015 passed by the State Consumer Disputes Redressal Commission, Jammu (hereinafter referred to as „the Commission‟) by which the claim of the claimant, namely, Smt. Renu Gupta has been allowed and a sum of Rs.4,35,000/- has been awarded as compensation to her on account of negligence by appellant in CIMA No.202/2015, while performing the operation. Being aggrieved by the aforesaid order, the appellant Dr. Yash Pal Gandotra has filed CIMA No.202/2015, whereas the claimant, namely, Smt. Renu Gupta has filed the cross appeal for enhancement of CIMA No.202/2015, MP Nos.1/2015 & 1/2016 c/w Cross Appeal (C) No.11/2015 Page 1 of 17 2 the amount of compensation. Since common questions of law and facts arise for consideration in both the aforesaid appeals, they were heard analogously and are being decided by this common order. For the facility of reference, facts from CIMA No.202/2015 are being referred to.
2. The respondent No.1 approached the respondent No.2 in the month of May, 2000 to get the stones in gallbladder removed by Laparoscopic Surgery in which body is not cut open and person can resume his/her normal activities within two-three days. It was pleaded in the petition filed before the Commission that the respondent No.2 further claimed that the appellant who is a visiting doctor is an expert in Laparoscopic surgery and has vast experience, special skills and knowledge in the field of Laparoscopic surgery. Relying on the advice tendered by the respondent No.2, the respondent No.1 got herself admitted in the hospital of respondent No.2 on 20.06.2000 for removal of gall bladder through Laparoscopic surgery. It was further pleaded in the complaint that instead of performing Laparoscopic surgery for the reasons unknown to the respondent No.1 and her family members, the cut was administered to the respondent No.1 and open surgery was performed and the gall bladder was removed. It was also averred in the complaint that neither the respondent No.1 nor her family members were informed CIMA No.202/2015, MP Nos.1/2015 & 1/2016 c/w Cross Appeal (C) No.11/2015 Page 2 of 17 3 about the complications of the normal surgery and the fact that open surgery has been performed instead of Laparoscopic surgery. It was also averred that some equipments and medicines were brought by the family members of the complainant on the request of the doctor attending the operation. It was stated in paragraph 3 of the report that all tests conducted before and after the operation were retained by the respondent No.2. After the operation, the respondent No.1 was discharged from the hospital on 27.06.2000 and drain pipe remained attached with the respondent No.1 up to two-three months after the operation. Thereupon the respondent No.1 again contacted the appellant to ascertain why drain pipe is not being removed, however, the appellant did not give any specific reply and kept on giving ten days time for removing the drain pipe and extended the period several times till three months and ultimately called the respondent No.1 to his clinic at Pathankot to remove the drain pipe in the month of October, 2000.
3. When the respondent No.1 went to Pathankot to remove the drain pipe, the appellant suggested the Clingrogram Test which was got conducted by one person at Pathankot. However, the report of the aforesaid test was never handed over to the respondent No.1. In sometime in the month of CIMA No.202/2015, MP Nos.1/2015 & 1/2016 c/w Cross Appeal (C) No.11/2015 Page 3 of 17 4 July, 2001, the respondent No.1 suffered acute jaundice and while undergoing different tests, the respondent No.1 came to know that damage to Common Bile Duct has been caused by the appellant while performing the Laparoscopic surgery which was converted to open surgery. The aforesaid fact was pleaded by the respondent No.1 in paragraph 5 of the complaint in the specific terms which was filed before the Commission. On 20.09.2001, the respondent No.1 went to New Delhi for conducting MRI and MRCP Tests which facility was not available in Jammu and the aforesaid tests were conducted upon the respondent No.1 in Delhi on 23.09.2001. When the report of the aforesaid test was shown to the doctors, the doctors advised another surgery. In order to avoid surgery, the respondent No.1 consulted some more doctors who advised more tests and the respondent No.1 after consultations with the Endoscopist of Indraprastha Apollo Hospital decided to get damaged operation rectified by Stenting and went to New Delhi and got herself admitted in the Apollo Hospital, New Delhi on 12.10.2001 and stenting was attempted by the doctor. However, the Guide wire could not negotiate the stricture, so the stent could not be placed in the damaged region. Thereupon, ERCP was conducted in which it was found that Common Bile Duct was normal but there was complete block close to cystic duct opening. After CIMA No.202/2015, MP Nos.1/2015 & 1/2016 c/w Cross Appeal (C) No.11/2015 Page 4 of 17 5 discharge from the Indraprasha Hospital, the respondent No.1 again contacted Dr. Subash Abrol, Government Medical Hospital, Gandhi Nagar, Jammu who advised Heptatojejunostomy and referred the case to Dr. Adarsh Choudhary, G B Pant Hospital, New Delhi. The respondent NO.1 got herself admitted in G B Pant Hospital, on 27.10.2001 and was operated on 05.11.2001 and was discharged on 12.11.2001.
4. Thereupon the respondent No.1 filed a complaint against the respondent No.2 as well as the appellant for providing deficient service, as a result of which respondent No.1 was made to suffer economically, physically, emotionally and mentally. The respondent No.1 claimed a sum of Rs.10,00,000/- by way of compensation along with interest @ 18 per cent.
5. The appellant in the written statement admitted that he had conducted the general surgery on the respondent No.1 in the hospital of respondent No.2 but denied the negligence or deficiency in service. It was also denied that the Common Bile Duct of the respondent No.1 was damaged during the surgery conducted by him. The appellant also denied that the complainant had undergone various tests and huge expenses were incurred by her. It was also stated that the operation conducted and incision were made as an CIMA No.202/2015, MP Nos.1/2015 & 1/2016 c/w Cross Appeal (C) No.11/2015 Page 5 of 17 6 indispensable requirement and the surgery for which complainant‟s attendants were apprised and they had given consent and shortly after the surgery and not after three months, drain pipe of the respondent No.1 was removed for which she was alerted well before the removal. However, the respondent No.1 never reported even any complications. The respondent No.2 in the written statement took a stand that no medical negligence has been attributed to him/her and the procedure was performed by the appellant and no question of deficiency in service so far as the respondent No.2 is concerned arises in the fact situation of the case.
6. The Commission vide impugned order dated 07.07.2015 held that the appellant was required to perform the Laparoscopic surgery. However, he performed open surgery without obtaining consent of either of the respondent No.1 or her relatives. It was further held that the aforesaid surgery was conducted on respondent No.1 without obtaining her consent or her relatives consent and no pre operative protocol was followed and no tests were conducted before performing the surgery, otherwise the appellant would have known in advance that general surgery is required to be performed. Thus, the appellant switched over to open surgery while performing the Laparoscopic surgery is proof of his negligence and no material has been brought on record by CIMA No.202/2015, MP Nos.1/2015 & 1/2016 c/w Cross Appeal (C) No.11/2015 Page 6 of 17 7 the appellant to show that due to compelling reasons, he had switched over to the open surgery. Accordingly, the Commission exonerated the respondent No.2 of his liability and held the appellant liable to make payment of compensation to the tune of Rs.4,35,000/- along with interest. In the aforesaid factual background, the appellant has filed the CIMA No.202/2015 against the order dated 07.07.2015 whereas the respondent No.1 filed the appeal seeking enhancement of the compensation.
7. Learned counsel for the appellant submitted that the finding recorded by the Commission that on account of negligence in performing the operation, the Common Bile Duct of the respondent No.1 got damaged is perverse. It is further submitted that the Laparoscopic surgery was converted to open surgery as it was not possible to perform the Laparoscopic surgery in view of the fact that the respondent No.1 had abnormal communication of a part of gall bladder i.e. Hartman‟s Pouch with Common Bile Duct and in addition to this, the cystic duct and Hartman‟s pouch were clubbed together and adherent with CBD and therefore the open surgery was the only option and this by itself is not a proof of negligence per se. It is further submitted that the Commission ought to have appreciated that the entire tests were conducted in the nursing home of respondent No.2 and the CIMA No.202/2015, MP Nos.1/2015 & 1/2016 c/w Cross Appeal (C) No.11/2015 Page 7 of 17 8 records were not supplied to respondent No.1 and the appellant was only the visiting doctor who had performed the surgery. From the material available on record, it is axiomatic that no damage was caused to the Common Bile Duct and from the respondent No.1 affidavit itself, it is evident that she was informed about the normal surgery and all reports and tests which were conducted prior to her operation were retained by the respondent No.2. Learned counsel for the appellant has also invited our attention to paragraph 8 of the statement of respondent No.1 and has submitted that the husband of the respondent No.1 had signed the consent form. Therefore, the finding recorded by the Commission that the consent was not obtained is perverse. Learned counsel for the appellant has also referred to the statement of Dr. Adarsh Choushary, Dr. Ajay Kumar and Dr. Praveen Gulati in support of his submissions that no negligence was attributable to the appellant while conducting the surgery. Learned counsel for the appellant has invited the attention of this Court to report of Dr. Ajay Kumar of Indraprashta Apollo Hospital in support of his submission that Common Bile Duct was normal but complete block close to Cystic duct opening. It is further submitted that the findings recorded by the Commission are perverse as they are based on surmises and conjectures. Learned counsel for the appellant has referred CIMA No.202/2015, MP Nos.1/2015 & 1/2016 c/w Cross Appeal (C) No.11/2015 Page 8 of 17 9 to the relevant extracts of tenth edition of Abdominal Operations by Maingots‟.
8. On the other hand, learned counsel for the respondent No.1 has taken us through the entire judgment of the Commission and has submitted that the judgment passed by the Commission is well considered and the negligence on the part of the appellant is writ large in the facts of the case. It is submitted that the negligence was conducted by respondent No.2 at the pre operative stage inasmuch as no tests were conducted by the appellant as well as by performing the surgery inasmuch as no consent was obtained from the relatives of the respondent No.1. It is further submitted that the respondent No.1 remained with drain pipe for three months and the report of the tests which were conducted by the appellant was not supplied to her. It is further submitted that the respondent No.1 has not been awarded just compensation even though she has undergone sixty to seventy tests and her suffering still continues. It is submitted that the Commission has undertaken painstaking exercise and has meticulously recorded the finding which do not call for any interference. It is further submitted that a sum of Rs.7,84,0426/- ought to have been awarded as compensation to the respondent No.1. It is further submitted that in the fact situation of the case, no expert evidence is CIMA No.202/2015, MP Nos.1/2015 & 1/2016 c/w Cross Appeal (C) No.11/2015 Page 9 of 17 10 required. In support of his submissions, learned counsel for the respondent No.1 has relied on decisions of the Supreme Court in the case of Spring Meadows Hospital and another v. Harjol Alhuwalia and anr., AIR 1998 SC 1801, V. Krishna Kumar v. State of Tamil Nadu and others, 2015 (3) Law Herald (SC) 2597, Pally Srikanth and another v. Krishna Institute of Medical Sciences and others, (2016) 4 Law Herald (SC) 3420.
9. We have considered the submissions made by learned counsel for the parties and have perused the record. The central issue in an action for medical negligence is the standard of care. In Law, the test for breach of duty is in the tort of negligence is whether the defendant‟s conduct was reasonable in all the circumstances of the case. In Bolam v. Friern Hospital Management Committee (1957) 2 ALL (E) (R) 118, the classic test of professional negligence was laid down which is widely known as "Bolam Test" by Mcnair J and it was held that the test is the standard of the ordinary skill man exercising and professing to have that special skill. A man need not possess the high expert skill at the risk of being found negligent. It is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. It has further been held that a doctor is not guilty of negligence if he has acted in accordance with the CIMA No.202/2015, MP Nos.1/2015 & 1/2016 c/w Cross Appeal (C) No.11/2015 Page 10 of 17 11 practice accepted as proper by a responsible body of medical men skilled at that particular art. In the case of Morris vs. West Hartlepool Steam Navigation Co. Ltd, (1956) AC 552, it has been held that as a general rule within the tort of negligence where the defendant has acted in accordance with the common practice of others in similar situation, this will be a strong evidence that he has not been negligent. The "Bolam Principle" was considered by the Supreme Court in the case of Nizam's Institute of Medical Sciences v. Prasanth S. Dhanaka, (2009) 6 SCC 1 and it was held that mere misjudgment by itself would not be decisive of the negligence towards the patient and the knowledge of medical practice and procedure available at the time of the operation and not at the time of trial is relevant. The aforesaid principle was also reiterated by the Supreme Court in the case of V. Kishan Rao v. Nikhil Super Specialty Hospital, (2010) 5 SCC 513. The Supreme Court in the case of Kusum Sharma and others. vs. Batra Hospital and Medical Research Center and others, (2010) 3 SCC 480, has held that a doctor must have reasonable degree of skill and knowledge and he must exercise care of a reasonable degree and would be liable only where his conduct falls below that of a reasonably competent practitioner in his field. In P V Desai v. State of Maharashtra, (2013) 15 SCC 481, it has been held CIMA No.202/2015, MP Nos.1/2015 & 1/2016 c/w Cross Appeal (C) No.11/2015 Page 11 of 17 12 that distinction has to be drawn between negligence and recklessness and to reserve the criminal punishment for the latter.
10. In the backdrop of the aforesaid well settled legal position, we may now examine whether in the instant case the appellant in CIMA No.202/2015 had exercised reasonable degree of skill and knowledge as well as reasonable degree of care while performing operation on respondent No.1. It is pertinent to mention here that Commission has exonerated the respondent No.2 in whose nursing home the appellant had performed the operation. It is also not in dispute that all the reports in respect of tests conducted prior to operation performed by the appellant are in possession of respondent No.2. The Commission has held the appellant liable inter alia on the ground that the appellant performed open surgery instead of laparoscopic surgery without obtaining consent of either respondent No.1 or her relatives and no pre-operative protocol was followed and no tests were conducted before performing the surgery, otherwise the appellant would have known in advance that open surgery was required to be performed. In our considered opinion, the aforesaid findings are perverse as the Commission has failed to take into account the material evidence on record as well as the relevant circumstances which are enumerated hereinunder:
CIMA No.202/2015, MP Nos.1/2015 & 1/2016 c/w Cross Appeal (C) No.11/2015 Page 12 of 17 13
(i) From perusal of paragraph 3 of the complaint filed before the Commission, it is evident that the respondent No.1 herself has averred that "during the performance of operation, the family members of the complainant were told that due to some complicacy the normal surgery has been performed instead of laparoscopic surgery was performed and some medicines were brought by the family members of the complainant on the request of the doctor attending the operation" and "all the reports of the test conducted before and after the operation were retained by opposite party No.1", i.e. the respondent No.2 in whose nursing home the respondent No.1 was operated.
(ii) No attempt was made by the respondent No.1 to summon the reports of the test conducted before and after the operation which were in possession of respondent No.2 before the Commission.
(iii) The Commission ought to have appreciated that the entire claim of respondent No.1 was founded that on account of the operation performed by appellant, the Common Bile Duct of the respondent No.1 was damaged.
(iv) A test was got conducted by respondent No.1 in Indraprastha Apollo Hospital, on 12.10.2001 and the following endoscopic finding was recorded:
" Normal Papilla CBD canulated after a precut the CBD is normal but there is complete block close to cystic duct opening. Guidewire goes in the short distance beyond the stricture but is not able to negotiate. Inspite of best efforts no contrast goes beyond this narrowing. Hence dilation / stenting not possible."
CIMA No.202/2015, MP Nos.1/2015 & 1/2016 c/w Cross Appeal (C) No.11/2015 Page 13 of 17 14 ENDOSCOPIC DIAGNOSIS "Biliary Stricture- complete blockage adv. Hepatojejunostomy."
Thus, it was found that no damage was caused to the common bile duct.
(v) The operation was performed on 20.06.2000, whereas the respondent No.1 developed Jaundice and got conducted the test at Indraprastha Apollo Hospital New Delhi on 12.10.2001, i.e. nearly after a period of more than one year and three months in which no damage to the common bile duct was found. Therefore, the finding that on account of the open surgery, damage was caused to the common bile duct, has been reached in ignorance of the aforesaid material evidence on record.
(vi) No medical evidence was adduced by respondent No.1 to establish the fact that the procedure in performing the open surgery was wrong.
(vii) The husband of the respondent No.1, namely, Rakesh Kumar Gupta admitted in the cross examination that he has signed the consent form for operation, however, no attempt was made for production of the aforesaid consent form.
(viii) From the statement of Dr. Ajay Kumar, Senior Consultant Gastroenterology and Hematology Indraprashta Apollo Hospital, New Delhi it is evident that he has stated that strictures in common bile duct, in case of respondent No.1, could be caused due to many reasons. Similarly, Dr. Praveen Gulati, Director, MR Center Green Park, New Delhi has also stated that there was narrowing of the proximal common bile duct. Dr. Adarsh Choudhary, Prof and HOD GI Surgery, GB Pant Hospital, New Delhi has stated that there are CIMA No.202/2015, MP Nos.1/2015 & 1/2016 c/w Cross Appeal (C) No.11/2015 Page 14 of 17 15 numerous causes for formation of strictures and in the case of respondent No.1, what could be the cause, we cannot say.
(ix) Dr. Yash Pal Gandotra, the appellant in his evidence has stated that in order to save the life of respondent No.1, he adopted the open surgery procedure as Laparoscopic surgery was not possible on account of the fact that the respondent No.1 had abnormal communication of a part of gall bladder i.e. Hartman‟s Pouch with Common Bile Duct and in addition to this, the cystic duct and Hartman‟s pouch were clubbed together and adherent with CBD and therefore the open surgery was the only option.
(x) The relevant extract of Maingot‟s Abdominal Operations, 10th Edition reads as follows:
"Experience with open cholecystectomy is vast and spans generations of surgeons. This operation has been performed in virtually every country throughout the world. Traditionally, open cholecystectomy has been the gold standard for all patients with symptomatic gallstone disease, regardless of whether the indication for intervention was recurring biliary colic, acute cholecystitis or one of the complications of biliary stone disease. Although laparoscopic techniques have largely supplanted traditional methods of performing open cholecystectomy for most patients with chronic, uncomplicated cholecystitis and cholelithiasis, the open approach continues to be a safe and effective therapy for the treatment of complicated gallstone disease."
(xi) Thus it is evident that traditionally open surgery is prescribed for gallstone disease. There is no material on record that the appellant while performing the CIMA No.202/2015, MP Nos.1/2015 & 1/2016 c/w Cross Appeal (C) No.11/2015 Page 15 of 17 16 surgery did not exercise the reasonable degree of skill and knowledge and therefore was negligent in performance of operation of respondent No.1.
(xii) From the statement of respondent No.1 herself, it is evident that prior to operation, test were conducted and all the documents were in possession of respondent No.2 in whose nursing home, the appellant has performed his operation. The respondent No.1 had not taken any steps for production of the aforesaid documents.
11. For the aforementioned reasons, in our considered opinion, the finding recorded by the Commission with regard to negligence on the part of the appellant in performing the operation is perverse.
12. So far as reliance placed on behalf of respondent No.1 in the case of Pally Srikanth (supra) is concerned, the National Consumer Disputes Commission has held that a case for medical negligence can be made out without producing the evidence of the expert. The aforesaid decision has no application to the obtaining factual matrix of the case. Similarly, the decision in the case of Spring Meadows Hospital supra, an injection was administered by the nurse without conducting any test thereupon the patient immediately collapsed which is not the case here. Similarly the case of V Krishan Kumar supra is of no assistance to the respondent No.1 as in the said case, the new born baby suffered blindness due to gross negligence shown by the CIMA No.202/2015, MP Nos.1/2015 & 1/2016 c/w Cross Appeal (C) No.11/2015 Page 16 of 17 17 doctor in following the procedure which is not the case here. In the instant case, the respondent No.1 has failed to prove that the appellant was negligent in performing the operation on her due to which she suffered damage to the common bile duct. Even no attempts were made by the respondent No.1 to produce the consent form which was admittedly, signed by the husband of the respondent No.1.
13. In view of preceding analysis, the impugned order passed by the Commission dated 07.07.2015 is hereby quashed and set aside. In the result, CIMA No.202/2015 is allowed, whereas Cross Appeal No.11/2015 is dismissed. However, there shall be no order as to costs.
( Sanjeev Kumar ) ( Alok Aradhe )
Judge Judge
Jammu
19.07.2017
Raj Kumar
CIMA No.202/2015, MP Nos.1/2015 & 1/2016 c/w Cross Appeal (C) No.11/2015 Page 17 of 17