State Consumer Disputes Redressal Commission
Mrs Pushpa And Oth. vs Vatsalya Maternity And Surgical Centre ... on 31 March, 2023
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UP C-1 Vikrant Khand 1 (Near Shaheed Path), Gomti Nagar Lucknow-226010 Complaint Case No. CC/300/2016 ( Date of Filing : 21 Sep 2016 ) 1. Mrs Pushpa and Oth. Allahabad ...........Complainant(s) Versus 1. Vatsalya Maternity and Surgical Centre Pvt Ltd and Oth Allahabad ............Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE ASHOK KUMAR PRESIDENT HON'BLE MR. Vikas Saxena JUDICIAL MEMBER PRESENT: Dated : 31 Mar 2023 Final Order / Judgement RESERVED STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UTTAR PRADESH, LUCKNOW COMPLAINT CASE NO. 300/2016 1. Mrs. Pushpa, 164/2/50 Tagore Town, Allahabad-211002.... 2. Dr. Mukesh, 164/2/50, Tagore Town, Allahabad-211002 ....Complainants VERSUS 1. Vatsalya Maternity and Surgical Centre Pvt. Ltd., 6/8, Elgin Road (Lal Bahadur Shastri Marg), Front of Prayag Sangeet Samiti, Civil Lines, Allahabad-211001.... 2. Dr. Ashok Agarwal, 162/49, Tagore Town, Allahabad.... 3. New India Assurance Co. Ltd., New India Assurance Bldg., 87, M.G. Road, Fort, Mumbai-400001 through its Director.... 4. United India Insurance Co. Ltd., 5-A, Sardar Patel Marg, Near Subhash Chauraha, Allahabad through Branch Manager Opposite Parties BEFORE: HON'BLE MR. VIKAS SAXENA, MEMBER
For the Complainant : Sri Anees Agrawal, Sri S.P. Pandey. Advocate For the Opposite Party No.1 & 2 : Sri Anoop Trivedi and Sri Manu Dixit Advocate. For the Opposite Party No.3 : Sri Prasoon Kumar Rai Advocate. For the Opposite Party No.4 : Sri Anchal Mishra Advocate. Dated : JUDGMENT MR. HON'BLE VIKAS SAXENA, MEMBER
The complainant has stated that she had a severe stomach on 28-09-2015 for which, she got examined on 02-10-2015 through Ultrasound and stones were detected in her gallbladder. She was advised to undergo laparoscopic cholecystectomy. In Vatsalya Maternity and Surgical Centre Pvt. Ltd. the laparoscopic cholecystectomy was performed on 07-10-2015. It is alleged by the complainant that this surgery was conducted with the gross medical negligence and some major arteries of her body were negligently raptured during the surgery but this could not be detected immediately. Moreover, the staff of the hospital also failed in due post-operative care. At about 7:00 P.M. on the same day it was noticed that the blood was coming out in the drain back and it was realized that something went terribly wrong during the surgery. Thereafter, re-exploratory open surgery was performed but the bleeding did not stop and then the doctor packed the abdomen with abdominal-packs and then stitched the skin. Thereafter, they decided to frame a scenario where the complainant and her husband,Dr. Mukesh, could not know anything about the operation and they took a decision to refer the complainant Medanta-Hospital A referral letter has been prepared by the opposite parties in relation to the complainant and she was rushed to the Medanta via air ambulance where re-exploratory surgery was again performed. Two radiological tests (CT Scan) were performed at Medanta on October 8, 2015 and October 9, 2015 which clearly demonstrate the state of complainant, the extent and site of bleeding. The complainant was finally discharged from Medanta on October 18, 2015 after 8 days stay at ICU. Recovery process continued and she miracle saved.
The complainant through his counsel sent a legal notice to the opposite parties. The complainants received reply dated 18.4.2016 from the opposite party no.1 but instead of providing details about the operation, asked the complainant about some further facts. The complainants through their lawyer replied to the letter received on 28.4.2016 (dated April 18, 2016). The complainant again made a clear request for medical records and details about the operation. Even after repeated demands of the medical records, the opposite parties did not provide the same. No details have been provided as to what actually transpired during laparoscopic Cholecystectomy. Therefore, this complaint has been preferred on account of gross medical negligence during operation, gross medical negligence during post-operative care and gross medical negligence by intentional failure to provide medical records and details about operation.
The Complainant submitted a report/affidavit of Dr. Luv Kumar Kacker, MBBS, MS-General Surgery, M.Ch.-Surgical Gastroenterology/G.I. Surgery, stated to be an expert Gastrontestinal Surgeon, Bariatric Surgeon and Laparoscopic Surgeon, who has given his expert opinion regarding gross medical negligence in the matter. As per his opinion, it is demonstrated by radiology report dated October 9, 2015 that bleeding is in the center of the anterior side of over whereas gallbladder is on the infer end of posterior side of liver. This clearly shows medical negligence as removal of gallbladder could not have resulted into arterial injury on the anterior side. Dr. Kacker has stated that "That the junction of segments VIII and V on the anterior side of the liver and function of segments VII and VI on the posterior side of the liver are completely unrelated to laparoscopic Cholecystectomy.
He has opined that these are far from the site of the said operation of laparoscopic Cholecystectomy. Further the arteries on which pseudo-aneurysms were found are present inside the liver. Therefore, an injury of this nature, in all likelihood, would have been caused by a deep piercing wound on the liver. He has stated in the report that "I have never seen such injuries being caused as a result of laparoscopic cholecystectomy (because the site of these injuries as far from the site of operation)."
The complainant stated that Radiology reports are corroborated by the fact that massive bleeding happened (which could have been possible only in case of arterial bleeding) and two massive blood clots - much bigger than tennis balls were noted in the radiology report dated October 8, 2015. The referral letter specifies that intra-operatively and post operatively events were uneventful. Further "generalized oozing" was noticed during re-exploration. This means that even after there being cult in an artery the events were uneventful (possible suggesting that it was normal to have arterial bleeding) and that bleeding spot could not be identified, during the laparoscopic cholecystectomy or re-exploration). In this regard, Dr. Kacker lhas specifically sated, "that normally in case of trauma of the nature apparent from Radiology report dated October 9,2015, especially in case of arterial bleeding, the site of injury (which is bleeding) is apparent and therefore, there is no plausible explanation for the events to be uneventful as stated in the referral letter of Vatsalya Maternity and Surgical Centre Pvt. Ltd. Further there is no plausible explanation for generalized oozing from liver as the site of trauma of this nature is normally apparent." The refferal letter also states that surprisingly at 7 p.m. itself the blood pressure dropped from 130/80 mm hg to 90/50 mm hg (within moments) and pulse rate increased from 86 per min to 124 per min (within moments). Given that there was an arterial bleeding, the bleeding was certainly present when laparoscopic cholecystectomy was concluded. Therefore, fall in blood pressure and rise in pulse rate could only be because of massive bleeding. It is not possible that the blood pressure fell at 7 p.m. itself and that the pulse rate went up at 7 p.m. itself abruptly. This clearly shows that no one was monitoring the blood pressure or pulse and the problem could be identified only when Mrs. Pushpa had bled for more than 3 hrs. In this regard, Dr. Kacker has confirmed this inconsistency and stated, "That the drop in blood pressure and the corresponding rise in pulse rate is usually caused gradually (as bleeding happens) and not suddenly unless it is exsanguinating injury. The blood pressure and the pulse rate of Mrs. Pushpa, in all likelihood, must have changed gradually from the time the laparoscopic cholecystectomy was concluded. There is no plausible explanation for a sudden drop in blood pressure or a sudden rise in pulse rate as stated in the referral letter given by Vatsalya Maternity and Surgical Centre Pvt. Ltd. referring Mrs. Pushpa to Medanta Global Health Private Limited."
The complainant contended that the entire story smells of malice as the opposite parties have been trying to hide the fact that arteries were ruptured and that proper post-operative care was not provided.
Other factors which clearly indicate medical negligence and malice in covering up the negligence
1. No medical records have been provided by opposite parties (even after repeatedly asking for the same). A request for medical records in writing is on record. In addition, several other requests were made- all in vain.
2. Referral letter does not have any authors name or signature. Clearly everyone was trying to save themselves. The opposite parties knew that this is a case of gross medical negligence. The referral letter is lalso inconsistent with itself as it cannot be believed that arterial bleeding could not be spotted and that the blood pressure fell and pulse rate increased abruptly.
This is clearly a case of Res Ipsa Loquitor as the event was completely within the contral of the opposite parties and to add to it, not only have they not provided any expalanation, they have actively tried to provide false and misleading information. Thus this is a clear case of gross medical negligence. Therefore, the opposite parties are liable to compensate Mrs. Pushpa and Dr. Mukesh.
The complainant no.2 Dr. Mukesh is Deputy Commissioner, Commercial Tax Department, Uttar Pradesh (He is not a medical practitioner). Complainant 1, Mr. Pushpa is Dr. Mukesh's wife. Opposite party no.1 is a hospital where laparoscopic cholecystectomy is performed and opposite party 2 Dr. Ashok Agarwal is one of the most senior doctors associated with opposite party. When by the reports of ultrasound it became clear that there is stones in the gallbladder of the complainant, the doctors associated with opposite party no.1 were consulted and laparoscopic surgical removal of gallbladder was suggested. She was informed that the patients are generally discharges a day after the operation. On the advice of doctors, the complainant got herself admitted on October 7, 2015 at Vatsalya Maternity & Surgical Centre Pvt. Ltd. where laparoscopic cholecystectomy was performed at 3.30 p.m. by the opposite party no.2. At around 7 p.m. Mrs. Pushpa complained of pain feeling of vomiting, ghabrahat and sweating. Excess bleeding was noticed from the drain pipe. The opposite parties and associated doctors decided to re-explore the surgery. Pursuant to the same, they performed a re-exploratory open surgery (not a laparoscopic surgery). Large "Hematoma" was removed from the liver surface. However, oozing could not be stopped.
The referral letter records that till 7 p.m. Mrs. Pushpa's blood pressure was 130/80 mm hg and pulse was 86 per min. At 7 p.m. itself the blood pressure became 90/50 mm hg and pulse became 124 per min. As per the referral letter provided by the opposite party no.1, "large sub-capsular "Hematoma" involving the IVb, V, VI, VII segments of the liver with generalized ooze were present" and no active spurter was seen. From the term 'generalised ooze', it has been suggested that the bleeding was happening from the entire area generally where "Hematoma" was found i.e. IVb, V, VI and VII segments of the liver and that the doctors were not able to identify the source of bleeding. As the doctors could not find the source of bleeding they packed the abdomen (with gauze pack) and stitched the skin. During the procedure, 3 units of packed red blood cells (PRBC) and 6 units of Fresh Frozen Plazma (FFP) were transfused. By this time it was clear that the condition of Mrs. Pushpa was extremely serious and that she will probably not survive. Dr. Mukesh and other family members were informed by the opposite parties and associated doctors that the chances of Mrs. Pushpa's survival are bleak at best and something may be done only if they take her to Medanta Global Health Private Limited for treatment. The next morning i.e. the morning of October 8, 2015, a referral letter was given by opposite party no.1 referring Mrs. Pushpa to Medanta. It is important to note that no one has signed the referral letter. Even the name of the doctor writing the referral letter has not been specified. The referral letter clarifies that before transfer of Mrs. Pushpa to Medanta, 7 units of PRBC, 2 units of whole blood, 19 units of Paltelets and 13 units of Fresh Frozen Plazma had been transfused. Mrs. Pushpa was rushed to Medanta via an Air Ambulance. At Medanta, re-exploratory laparotomy, control of bleeding and re-packing was performed on October 8, 2015 and October 9, 2015. On October 11, 2015 exploratory laparotomy was performed for removal of abdominal packs. She was discharged from Medanta on October 18, 2015. After discharge, Mrs. Pushpa stayed in Lucknow at her brother's place for a month for recovery. After that she returned home although the process of recovery continued.
After hearing both the parties and perusal of all records available Hon'ble Member Sri Rajendra Singh allowed the complaint and granted following reliefs:-
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On the other hand Hon'ble Member Sri Sushil Kumar rejected the complaint. Finding difference of opinion of the Division Bench of the Commission Hon'ble Chairman sought the third opinion of the Single Bench.
I have heard both the counsels for the parties and perused all the record available.
This is a settled law that to claim compensation from a hospital or a medical professional on ground of medical negligence, it is upon the complainant to prove an instance or such a conduct by the medical professional which indicates that the medical professional has committed some intentional mistake or behaved in such a manner which a reasonable person of that profession would not behave.
This has been held by the Honourable Supreme Court in case Devarakonda Surya Shesh Mani and ors. vs Care Hospital, Institute of Medical Sciences and ors. reported in IV(2022) CPJ page 7(SC) that the mere allegations of medical negligence are not sufficient but the complainant should prove it by positive evidence which leads to conclusion that the doctor failed in his duty towards the patient in a case of medical negligence. The Honourable Court observed:-
2. Unless the appellants are able to establish before this Court any specific course of conduct suggesting a lack of due medical attention and care, it would not be possible for the Court to second-guess the medical judgment of the doctors on the line of medical treatment which was administered to the spouse of the first appellant. In the absence of any such material disclosing medical negligence, we find no justification to form a view at variance with the view which was taken by the NCDRC. Every death in an institutionalized environment of a hospital does not necessyay Res Ipsa Loquitor amount to medical negligence on a hypothetical assumption of lack of due medical care.
The Honorable National Commission in case Pushpa Verma versus Bharadwaj nursing and Maternity home Private Limited reported in III 2023 cpj page 60 and has a elucidated the points to explain extent of burden of proof upon the complainant who claims compensation on ground of medical negligence, against the opposite party who is a medical professional. The honourable National Commission has observed: --
21.1 to bring successful claim the victim or victims family bringing the action must prove all the "Four D's" against the erring doctor/Hospital the 4 days of the medical evidence stand for duty, direliction/deviation, direct(proximate) cause and damages. In the instant case the complainant fail to prove the direction of duty of care on the part of opposite parties and the same was not a proximate cause of death of (the patient).
In another casein case Dr Dilip Amonkar versus Michael Rodarigue reported in III 2023 cpj page 167 same principal was reitreated. In the above mention cases The Honorable National consumer Rddressal Commission has clarified that the following Four Points are necessary to be proved by the the complainant to hold guilty the defendant of medical negligence: --
1. Existence of Duty of doctor towards the complainant
2. Dereliction of that duty
3. Damages to the complainant
4. These damages are Direct consequence of the dereliction The Honourable Supreme Court in case Jacob Mathew vs. State of Punjab reported in 2005 Volume 6 SCC page 1 observed in the following manner --
"A simple lack of care, and error of judgement of an accident, is not proof of negligence on part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession, of that day, he cannot be held liable for negligence maybe because a better alternative course or more skills doctor could not have chosen to follow or Resort to that practice or procedure "The standard to be applied for judging, whether the person charge has been negligent or not, would be that of an ordinary Competent Person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise for skills in that branch which he practices. A highly skill professional maybe poses of better qualities, but that cannot be made the basis or the year district for judging the performance of the professional procedure against on independent,"
To prove above mentioned ingredients of medical negligence the complainant has alleged that a laparoscopic cholecystectomy was performed to Mrs. Pushpa at 3:30 p.m. And after the surgery at 7:00 p.m. , she started complaining pain, vomiting, uneasiness and sweating. Excess bleeding was noticed from the drain pipe. The opposite party and associated doctors decided to re-explore the surgery and consequently they performed open surgery instead of laparoscopic surgery. A large "Hematoma" was removed from surface of liver. However, oozing of blood could not be stopped. It is further alleged by the complainant that the referral letter issued by the opposite party contains the fact that at 7:00 p.m. her blood pressure was 130 / 180mmhg and pulse rate was 86 per minute. Again after sometime the blood pressure became 90 / 50 mmhg and the pulse was 124 per minute. According to this letter, large sub capsular "Hematoma" involving IVB, V, VI, and VIIth segments of the liver was present. But the doctors were not able to identify the source of bleeding. Next morning after the referral letter of the opposite parties, Mrs. Pushpa was rushed to Medanta Hospital, where Re exploratory laparotomy and control of breeding and Re packing was performed and Mrs. Pushpa could be saved.
The complainant and her relatives approached many doctors for the explanation of the situation of Mrs. Pushpa, most of them confirmed that the events are not as per normal laparoscopic cholecystectomy but they refuse to give any written opinion. Finally won Dr Lav crackers, MBBS, MS, general surgery, MCH-surgical gastroenterology, g I surgery, and expert Gastro intestinal surgeon, laparoscopic surgeon, having more than 25 years of experience agree to explain what could have happened and to give Expert Opinion in his affidavit. The affidavit of Dr. Lav Kumar Kecker dtd. 29-08-2016 contains inter alia these findings --
5........It appears that these psudo-aneurism develop due to some trauma to the liver because it is not possible for arteries to start bleeding automatically in the post-operative period. For the, spontaneous pseudo-aneurism is not possible. As it is evident that said bleeding was notice shortly after laparoscopic cholecystectomy, therefore in all likelyhood the trauma must have been caused due to laparoscopic caleocystectomy on October 7, 2015. There is no other possible explanation for bleeding.
6. That moreover, the junctions of segments VIII and on the interior site of liver and junctions of segments VII and VI these are far from the site of operation of laparoscopic Cholecystectomy. Further the arteries are on which pseudo-aneurism were found are present inside the liver and not outside. Therefore, an injury of this nature, in all likelihood, would have been caused by a deep piercing wound on the liver.
In this report /affidavit the complainant has averred that two "Hematoma" developed as big as a size of table tennis ball and the expert report submitted by the complainant as given the opinion that this was due to aneurism the only reason can be an injury inside the body of the patient Mrs. Pushpa was caused during the laparoscopic surgery and there is no possible reason for these "Hematoma"s. Now we have to find that as to whether this complication was caused due to an injury during surgery or there may be other reasons for this condition. The' "Hematoma"' word is defined in Oxford dictionary in the following manner: --
"Hematoma" -- is solid swelling of clotted blood within the tissues.
In medical website www.mercy.com this word is defined as-
"A "Hematoma" is collection (or pooling) of blood outside the blood vessels. "Hematoma"s are classified as subdural, spinal, subungual(under the finder or toe Nail bed) or hepatic(Liver)."
The word aneurism is defined in medical website www better health.vic.in as --Aneurism-a ballooning and weakening area of an artery.
The reason of 'aneurism' in the same website has been given that this may because due to high blood pressure, weakening of blood vessels, and fatty plaques. This is also given in this website that inherited disease that may result in weakening of blood vessel wall. It is explained in the website --
Causes of aneurism High blood pressure (hypertension) over many years resulting in damage and weakening of blood vessels, fatty plaques, (Atherosclerosis) resulting in a weakness of blood vessel wall. Inherited diseases that may result in weaker than normal blood vessel walls.
The aforesaid medical literature provides that in this particular case the "Hematoma" would have been caused due to any of the reasons which could have been developed in the body of the patient and this is not correct to say that the only reason of the "Hematoma" was an injury caused by the surgeon during the laparoscopic surgery. The expert doctor Lav kecker has given the unequivocal opinion that the "Hematoma" or collection of blood or blood clotting is situated far from the site of the surgery, which clearly indicates that other reasons of "Hematoma" in this particular case is more plausible than an injury at the time of surgery.
The complainant has relied heavily upon the report/affidavit of Dr. Luc Kacker, MBBS, MS-General Surgery, M.Ch.-Surgical Gastroenterology/G.I. Surgery, an expert Gastrontestinal Surgeon, Bariatric Surgeon and Laparoscopic Surgeon who claim to have experience of more than 25 years. According to his opinion a gross medical negligence in the surgery of the complainant as demonstrated by Radiology Report dated 09-10-2015.
As per Dr. Kacker the bleeding was in the center of anterior side of the liver whereas the gallbladder is on the other end of posterior side of the liver. This clearly shows medical negligence, as removal of gallbladder could not have resulted into arterial injury on the anterior side. Dr. Kacker has stated in the report that "That the junction of segments VIII and V on the anterior side of the liver and function of segments VII and VI on the posterior side of the liver are completely unrelated to laparoscopic Cholecystectomy. Further the arteries on which pseudo-aneurysms were found are present inside the liver. Therefore, an injury of this nature, in all likelihood, would have been caused by a deep piercing wound on the liver. I have never seen such injuries being caused as a result of laparoscopic cholecystectomy because the site of these injuries as far from the site of operation." Radiology report are corroborated by the fact that the massive bleeding happened, which could have been possible only in the arterial bleeding as two massive blood clots much bigger than tennis ball were noted in Radiology report dated 8th of October, 2015." In this way Dr. Luv Kacker opined and guessed damage or injury to arteries far from the site of the surgery and expressed possibility that some object has negligently pierced into the liver.
The report of Dr. Luv Kacker is the only expert- report by and on behalf of complainant to counter this report, the opposite party had had an opportunity to submit his own report and also the bench could have sought another expert report but in absence of any such other report, this bench is bound to consider and examine the expert report submitted by Dr. Luv Kacker which is only expert report available on the record.
Although, Dr. Lav kekkar has arrived at the conclusion that a deep piercing wound is the only cause of this "Hematoma" but the other explanations are also exist for this condition of the patient as given in the above mentioned medical literature. It is also noteworthy that Dr. Lav kacker did not find any direct injury in the liver or in any other internal organ of the patient and also the report of Medanta Hospital clearly indicates that there was no injury on the nearby arteries of the patient.
The opposite party has cited various medical literatures which provide that one of the possible complications of laparoscopic or direct cholecystectomy is "Hematoma", cause of which is not known. One of these they have cited is "Digest of BMC surgery(2019) 9.3" from the site http//dol.org which gives an article on "A real intrahepatic sub capsular "Hematoma"(ISH) after laparoscopic cholecystectomy". One case presentation has been quoted in this article is, wherein the patient was a 32 year old woman upon whom the LC (laparoscopic cholecystectomy) was performed and she was discharged after 2 days of the surgery. On the second day of the discharge the patient developed severe right upper abdominal pain are heart rate was 110 BPM and the blood pressure was 80/55 mmhg. The hemoglobin drop to 86g/l from 127g/l. The city scan showed a 10.9x 12.5x 6.6 CM Ish in the right liver. It has been given in the article in the heading" Discussion and Conclusion" in the following manner --
LC is widely performed procedure for symptomatic gallbladder stone. Although, the ore all morbidity is less than 7% it carries certain risks the most common complications include infections, bile leak and post-operative bleedings..... The most common site of post- operative bleeding include gallbladder bed, sites of trocar, cystic artery, fancy form ligament and bleeding from ruptured liver capsule. The is a rare, life threatening complication after LC. No conclusive cause of ICH has been found..
In an article named ' Sub Capsular liver "Hematoma" as a Complication of Laparoscopic cholecystectomy by Stanislaw Gluzek, Mata Kot, referred a case of of 25 year old patient who developed "Hematoma" and bleeding on both lobes of liver without bleeding from gallbladder bed or cystic artery. In the article the final version has been given under the head ' Conclusions' in the following manner --
"Despite laparoscopic cholecystectomy is one of the most common surgical procedure nowadays, it is not free of complications. Subcapular liver "Hematoma" is very serious one of them. This case report describes its symptoms and method of treatment, but most of all it points at the importance of monetaring the patient after the surgery.
Laparoscopic cholecystectomy is a standard procedure in the treatment of symptomatic chleolithiasis. Hemorgic complication are there however in the word situation they may lead even to the patient's death. One of the most dramatic complication is intrahepatic sub capsular "Hematoma"(ISH) .The cause of this complication is still unknown."
In Romanian journal of emergency surgery, volume 2, Number 1, 2020 and article having title ' Sub Capsular Liver "Hematoma"-A Complication after Laparoscopic Cholecistoctomy' written by Adriana Tudorache, M. Bica, larisa senduescue and M Lazar, from general surgery department, emergency county, Hospital of Criova, it is given --
"In case of laparoscopic cholecystectomy, the most common complications occurring during early post operative period include; lesiones of bile duct, bleeding, while duck leakage, lesions of intestine, perforation of gallbladder and choledocholithiasis. Sub capsular liver "Hematoma" is among the most severe complications, but occurs rarely. A subcapsular "Hematoma" of liver is accumulation of blood between Glisson's capsule PARENCHYMA; rupture into peritoneum has a 75% mortality rate .The "Hematoma" is usually located around the right lobe of the liver(in 75% of the patients)."
Now we come to the core question of conclusion of medical negligence in this particular case where the complainant has claimed that the only reason of "Hematoma" that developed after the surgery is in this case can be only medical negligence that is the surgeon and doctors involved in the surgery did not take proper care but we can conclude from the perusal of the above mentioned medical literature that their maybe many other possible explanations of these "Hematoma". Although, this is a rare complication in case of laparoscopic cholestoctomy but it cannot be said that the only reason of this medical condition that is "Hematoma" is medical negligence in this case. In the expert evidence submitted by the complainant i.e. in the affidavit of Dr Lav kecker, he has opined that the plausible explanation of this "Hematoma" is that some hard object has pierced into some internal organ of the patient but he did not consider the fact as described in the above mentioned medical literature that the "Hematoma" and "Aneurism" may be caused by some other factors including bodily condition of the patient hypertension et cetera and by some unknown reasons "Hematoma" may be caused which is a rare but natural consequence and complication of laparoscopic cholecystectomy Althogh, the expert in this field, Dr Lav Kakkar, submitted by the complainant, has given his opinion that the complication in the surgery developed due to medical negligence only but on the basis of the above mentioned medical literature I arrive at a different conclusion that their maybe other causes for the sufferings of the patient Mrs. Pushpa.
A bench in consumer Commission may take a different view other than expressed by the report submitted by one of the parties, this view was taken by honorable Apex Code in case Maharaja Agrasen Hospital and others versus Master Rishabh Sharma and others reported in I (2020) CPJ 3 (SC) has held on the point of binding nature of an expert report on the decision of the Court in the following manner --
11.3.2 It is well-settled that a Court is not bound by the evidence of an expert, which is advisory in nature. The Court must derive its own conclusions after carefully sifting through the medical records, and whether the standard protocol was followed in the treatment of the patient. The duty of an expert witness is to furnish the Court with the necessary scientific criteria for testing the accuracy of the conclusions, so as to enable the Court to form an independent opinion by the application of this criteria to the facts proved by the evidence of the case. [Ramesh Chandra Aggarwal v. Regence Hospital Ltd. & Ors., IV (2009) CPJ 27 (SC)=(2009) 9 SCC 709; State of H.P. v. Jai Lal, VII (1999) SLT 620=III (1999) CCR 245 (SC)=(1999) 7 SCC 280=1999 SCC (Cri.) 1184]. Whether such evidence could be accepted or how much weight should be attached to it is for the Court to decide.
Placing Reliance Upon the judgement of Honorable Supreme Court I draw a different conclusion from the expert opinion submitted by the complainant that the sole reason of the adverse medical condition of the patient patient Pushpa was not medical negligence only and there may be other reasons also, in this case the complainant has to prove that she suffered due to medical negligence only of the opposite parties . In absence of such proof, damages cannot be awarded against the medical professionals and the hospital.
The Complainant has also placed a heavy Reliance upon the maximum of RES IPSA LOQUITOR . This was argued on behalf of the complainant that the only reason of complications in laparoscopic surgery performed upon the patient Mrs. Pushpa can be medical negligence and lack of proper care in surgery by the doctors opposite parties. Because, despite being medical professionals day failed to provide a plausible explanation of the post-operative complications in this matter.
In matter of principal of Res Ipsa Loquitor Honourable Supreme Court in case Harish Kumar Khurana versus Jogider Singh and others reported in II (2022) CPJ page 43(SC); III 2022 SLT page 698 it is given that in case of adjudging liable to a medical professional, the medical evidence should be so evident that it clearly manifest medical negligence. The Honorable Supreme Court observed; --
14................ It is clear that in every case were the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed that medical professional was negligent. To indicate negligence there should be material available on record or else appropriate medical evidence should be tendered. The negligence alleged should be so glaring, in which the event Res Ipsa Loquitor could be made applicable and not based on perception.
In matter of V. Kishan Rao versus Nikhil Super Speciality Hospital and other reported in III 2010 cpj page 1(SC) the fact situation indicated that the opposite party had admitted in his evidence that the patient was not treated for malaria. In that background, it was taken into consideration that the patient was treated for Typhoid though in the test it was found negative and the test for malaria was positive. The said fact situation therefore, indicated that the principal of Res Ipsa Loquitor would apply. The principal of Res Ipsa Loquitor was explained by the Honorable Apex court in the judgement. Relying upon the English judgement "Scott versus London and Saint Catherine Docs Company" ( All. England reports page 248C-D) the Court given; --
"......... Where the thing is shown to be under the management of the defendant or his servant, and the accident is such as in ordinary course of things does not happen if those who have the management use proper care, it efforts reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.
The hon'able Supreme Court has given certain illustrations of medical negligence, where the only conclusion can be drawn for the damages of patients during medical treatment, was lack of proper care and negligence by the medical professional and has given that in that case the doctrine of r I l operates and the complainant is exonerated from giving direct proof of the negligence because there is no explanation other than the negligence in that case. These illustrations are as following --
• "Where a patient sustained a burn from a high frequency electrical current used for "electric coagulation" of the blood [See Clarke v. Warboys, The Times, March 18, 1952, CA];
• Where gangrene developed in the claimant's arm following an intramuscular injection [See Cavan v. Wilcox, (1973) 44 D.L.R. (3d) 42];
• When a patient underwent a radical mastoidectomy and suffered partial facial paralysis [See Eady v. Tenderenda, (1974) 51 D.L.R. (3d) 79, SCC];
• Where the defendant failed to diagnose a known complication of surgery on the patient's hand for Paget's disease[See Rietz v. Bruser (No. 2) (1979) 1 W.W.R. 31, Man QB.];
• Where there was a delay of 50 minutes in obtaining expert obstetric assistance at the birth of twins when the medical evidence was that at the most no more than 20 minutes should elapse between the birth of the first and the second twin [See Bull v. Devon Area Health Authority, (1989), (1993) 4 Med. L.R. 117 at 131.];
• Where, following an operation under general anaesthetic, a patient in the recovery ward sustained brain damage caused by bypoxia for a period of four to five minutes [See Coyne v. Wigan Health Authority, {1991) 2 Med. L.R. 301, QBD];
• Where, following a routine appendisectomy under general anaesthetic, an otherwise fit and healthy girl suffered a fit and went into a permanent coma [See Lindsey v. Mid-Western Health Board, (1993) 2 I.R. 147 at 181];
• When a needle broke in the patient's buttock while he was being given an injection [See Brazier v. Ministry of Defence, (1965) 1 Ll. Law Rep. 26 at 30];
• Where a spinal anaesthetic became contaminated with disinfectant as a result of the manner in which it was stored causing paralysis to the patient [See Roe v. Minister of Health, (1954) 2 Q.B. 66. See also Brown v. Merton, Sutton and Wandsworth Area Health Authority, (1982) 1 All E.R. 650];
• Where an infection following surgery in a "well-staffed and modern hospital" remained undiagnosed until the patient sustained crippling injury [See Hajgato v. London Health Association, (1982) 36 O.R. (2d) 669 at 682]; and • Where an explosion occurred during the course of administering anaesthetic to the patient when the technique had frequently been used without any mishap [Crits v. Sylvester, (1956) 1 D.L.R. (2d) 502]."
47. In a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself. In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence.
In this particular case I am of the opinion that the doctrine of RES IPSA LOQUITOR does not give any help to the complainant as for the medical complications resulted in the surgery and after the surgery has many other explanations than the medical negligence or lack of proper care by the opposite parties, therefore in this case the complainant is bound to give specific evidence which proves medical negligence in laparoscopic surgery, which is not been provided by the complainant and hence, the opposite party cannot be held liable to pay damages and compensation to the complainant for the medical negligence.
Based on the foregoing discussion, and in the present facts and circumstances of the case and also Reliance upon the above mentioned precedents and observations of Honorable Supreme court as well as the Honorable National Commission I do not find feasible to attribute medical negligence or deficiency in service by the doctors and medical professionals/opposite parties. Also, I do not find any occasion to grant damages or compensation to the complainant against the medical professionals in absence of any plausible proof of medical negligence. Therefore, I as a single bench, am in agreement with the judgement pronounced by Mr Sushil Kumar, respected member, who do not find any instance of medical negligence on the basis of the evidence produced by the complainant.
I found that the judgement by Sri Sushil Kumar, Member (Judicial) is appropriate in the facts and circumstances of this matter.
In view of the above, I am in agreement with the opinion of Sri Sushil Kumar, Member (Judicial) who have rejected the complaint of the complainant.
Let copy of this order be made available to the parties as per rules.
The Stenographer is requested to upload this order on the website of this Commission at the earliest.
(VIKAS SAXENA) MEMBER Ashish [HON'BLE MR. JUSTICE ASHOK KUMAR] PRESIDENT [HON'BLE MR. Vikas Saxena] JUDICIAL MEMBER