State Consumer Disputes Redressal Commission
M/S Chahal Hospital vs Mohinder Singh on 13 January, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 16 of 2016
Date of institution: 07.01.2016
Date of order reserved: 03.01.2017
Date of Decision: 13.01.2017
M/s Chahal Hospital, Opposite DAV College, Bibiwala Road, Bhatinda
through its Competent Authority.
Appellant/Op No. 1
Versus
1. Jaspreet Singh aged about 24 years son of Sh. Gurcharan Singh,
resident of Village Burj Dhilwan, now at Ward No. 1, Mansa, Tehsil
and District Bhatinda.
Respondent No.1/Complainant
2. Apex Insurance Consultant Ltd., Regd. Office : 54, Vinobha Puri,
Lajpat Nagar - 1, New Delhi through its Managing Director.
3. United India Insurance Co. Ltd., Branch Office : 42/C, 3rd Floor, Mool
Chand Commercial Complex, New Delhi, through its Managing
Director.
Respondent Nos. 2&3/Op Nos.2&3
First Appeal against the order dated
24.11.2015 passed by the District Consumer
Disputes Redressal Forum, Bathinda.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Mrs. Surinder Pal Kaur, Member
Present:-
For the appellant : Sh. G.D. Gupta, Advocate
For respondent No.1 : Sh. L.S. Sidhu, Advocate
First Appeal No. 16 of 2016 2
For respondent Nos. 2&3: Ex.-parte.
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
The appellant/Op No.1 (hereinafter referred as Op No.1) has filed the present appeal against the order dated 24.11.2015 passed by the District Consumer Disputes Redressal Forum, Bathinda (hereinafter referred as the District Forum) in consumer complaint No. 147 dated 12.2.2014 vide which the complaint filed by the complainant was partly allowed with the direction to Op No. 1 to pay to the complainant a sum of Rs. 2 lacs within a period of 30 days from the date of receipt of copy of the order, failing which it shall carry interest @ 12% p.a. till realization.
2. Complaint was filed by complainant under the Consumer Protection Act, 1986 (in short 'the Act') against opposite parties on the averments that he was suffering from abdominal pain and on 5.8.2013, he approached Op No. 1. He was admitted there for clinical and other examination and he was stated that there are various calculi in his gall bladder and he was required to undergo operation. After getting consent of the complainant, Op No. 1 conducted laparoscopic operation for removal of calculi from the gall bladder and was discharged on 7.8.2013. In October, 2013 the complainant again suffered abdominal pain and approached Op No. 1 and on 26.10.2013, he was referred to Dr. J.S. Romana of Romana Ultrasound Echo and Colour Doppler Centre, Bathinda. After obtaining the ultrasound report, it was observed that there was 58x26mm cystic mass in the gall bladder fossa with few calific foci in First Appeal No. 16 of 2016 3 its lower part and 20x12mm stone in its upper part, which showed that Op No. 1 did not adopt the proper procedure in August, 2013 and calculi was left in the gall bladder. Then he approached PGI, Chandigarh where his MRI Scan was conducted, which clearly mentioned that there was T2 hyperintense cystic structure measuring 3.6x2.1x1.6cm in size seen in the gall bladder fosa communicating with cystic dust. It contained hypointence foci measuring .20mm, which showed that complainant was not properly treated with an intention to extort money, therefore, it is a case of medical negligence. Accordingly, the complaint was filed before the District Forum seeking refund of fee, charges, expenses incurred by the complainant alongwith compensation of Rs. 5 lacs for mental and physical harassment, suffering and agony alongwith interest @ 12%. Legal expenses be also awarded.
3. Complaint was contested by Op No. 1 only as Op Nos. 2 & 3 were ex-parte before the District Forum. Op No. 1 in its reply took the legal objection that complaint is nothing but an abuse of process to extort money from Op No. 1; the complainant in his complaint has stated that some calculi in the gall bladder was intentionally left, which amounts to criminal offence and the District Forum did not have any jurisdiction to entertain this complaint; the complainant has not pointed out even a single specific occasion when Op No. 1 was negligent nor has annexed any document from which, it could be concluded that Op No. 1 was ever negligent during the operation; complicated questions of law and facts were involved in the present complaint, which could not be decided in summary procedure, First Appeal No. 16 of 2016 4 therefore, the matter be relegated to the Civil Court. On merits, it was admitted that the complainant was diagnosed for cholilithiasis with mucocele formation and was an emergency case to be operated as early as possible, accordingly, he was admitted with Op No. 1 on 5.8.2013 for laproscopic cholecystectomy(in short 'LPC') procedure and was discharged on 7.8.2013 in a fit and fine condition. After 7 days, the complainant came to Op No. 1 for getting stitches removed. It was denied that Op No. 1 did not adopt proper procedure while conducting operation of the complainant in August, 2013 or some calculi was intentionally left in the gall bladder. Op No. 1 holds a Master's degree of General Surgery and honorary fellowship of Indian Association of Gastrointestinal Endo Surgeons and is life member of Association of Surgeons of India. He is running a well maintained hospital with trained staff under the name and style of Chahal Hospital at Bathinda. In the first week of August, 2013, the complainant came to Op No. 1 for pain in abdomen. Complainant was examined and ultrasonography of whole abdomen done by Delhi Scan Centre, Bathinda showing gall bladder and calculus of about 18.5mm size impacted at its neck. He was also diagnosed for acute cholecystictis with cholilithiasis with Mucocele Formation. On examination of the report, Op No. 1 advised the complainant for cholecystectomy as early as possible and laproscopic cholecystectomy procedure was performed on 5.8.2013. During the procedure, it was found that there was significant inflammation and adhesions of stomach, gall bladder and intestine due to acute cholecystitis with cholelithiasis with mucocele formation. The cystic First Appeal No. 16 of 2016 5 duct was found to be short and wide. The gall bladder of the complainant was removed. After taking all the necessary precautions, keeping in view the swelling adhesions etc. and ultimately LCP was successfully conducted and was discharged on 7.8.2013 and was advised to come for removal of stitches after 7 days. Complainant came there and stitches were removed. On 26.10.2013, complainant came to Ops with abdominal pain and he was referred to Romana Ultrasound Echo & Colour Doppler Centre, Bathinda for U/S whole abdomen. As per their report dated 26.10.2013, the complainant was having"Gall Bladder which is not visualized, cholecystectomy was done, however, there was 58x26 mm cystic mass in GB Fossa with few calcificfoci in its lower part and 20x12 mm stone in its lower part and accordingly, he was advised open cholectystectomy and lateron this Op came to know that open cholecystectomy was done by the complainant from PGIMER, Chandigarh. It was further stated that LPC is common surgery. However, after surgery, symptoms may persist in some patients alongwith remnant gall bladder and for complete removal of Gall Bladder and cystic duct junction to laproscopic surgery is more effective. In the MRI Scan conducted in PGI, it was clearly mentioned that there was T2 hyperintense cystic structure measuring 3.6x2.1x1.6 cm in size seen in the gall bladder fosa seen communicating with cystic duct and it contained hypointense foci measuring .20 mm. Other averments of the complaint were denied. It was stated that the treatment was given as per the standard medical protocol. There was no medical negligence First Appeal No. 16 of 2016 6 or any deficiency in service on the part of this Op. Complaint is without merit, it be dismissed.
4. Before the District Forum, the parties lead their respective evidence.
5. In support of his allegations, the complainant had tendered into evidence affidavit of Jaspreet Singh Ex. C-1, legal notice Ex. C-2, postal receipt Ex. C-3, discharge slip Ex. C-4, lab report Ex. C-5, ultrasound film Ex. C-6, report Ex. C-7, MRI Scan report Ex. C-8, OPD card Ex. C-9, discharge and follow up card Ex. C-10. On the other hand, Op No. 1 had tendered into evidence certificates Exs. Op-1/1 to Op-1/3, letter Ex. Op-1/4, Profession Indemnity Policy Schedule Ex. Op-1/5, report Ex. Op-1/6, operation record Ex. Op-1/7, Journal of Minimal Access surgery Ex. Op-1/8, affidavit of Dr. J.S. Chahal Ex. Op-1/9.
6. After going through the allegations in the complaint, written version filed by Op No.1, evidence and documents brought on the record, the complaint was partly accepted against Op No. 1 only whereas complaint against Op Nos. 2 & 3 was dismissed.
7. Aggrieved with the order passed by the learned District Forum, the appellant/Op No. 1 has filed the present appeal.
8. We have heard the learned counsel for the appellant Sh. G.D. Gupta, Advocate and learned counsel for respondent No. 1/complainant Mr. L.S. Sidhu, Advocate whereas none was present on behalf of respondent Nos. 2 & 3.
9. It was argued by the counsel for the appellant that on the basis of ultrasound report dated 3.8.2013 (Ex. Op-1/6), it was found First Appeal No. 16 of 2016 7 that the complainant was 'acute cholicystitis with cholilithiasis with mucocele formation'. Ex. Op-1/7 is the operation record vide which GB and stones were removed laproscopically. The complainant visited the Op after a week and stitches were removed and at that time there was no problem. On 26.10.2013, the complainant again came to their hospital with abdominal pain and he was referred to Romana Ultrasound Echo & Colour Doppler Centre, Bathinda, which showed residual stone and GB stump stone, which is a known complication of the procedure and in this regard, he has referred to Journal of Minimal Access Surgery; Post cholecystectomy syndrome wherein it has been observed as under:-
"Laparoscopic Cholecystectomy is the most common surgery performed for symptomatic gallstone. However even after surgery, symptoms may persist in some patients. Various causes for such post-cholecystectomy syndrome have been noted. We report our experience of seven such patients with post - cholecystectomy syndrome where on investigation, presence of stone in the biliary tree could be confirmed along with remnant gall-bladder. All these patients underwent completion cholecystectomy with removal of the stones by laparoscopic surgery and had good post-operative results. The patients were followed-up from three months to one year and all were asymptomatic till their last follow up. Keywords: Cystic duct stump calculi, stump cholecystitis, stump syndrome.First Appeal No. 16 of 2016 8
"Laparoscopic cholecystectomy is the most common surgery performed for symptomatic gallstone. However, symptom may persist even after surgery in some patient. Various causes for such symptoms have been identified in the literature and are grouped together as post cholecystectomy syndrome:
We report our experience of post cholecystectomy syndrome in seven patients of which five had calculi in the remnants gall bladder (GB) and two had remnant gall bladder with common bile duct (CBD) stone. All cases were managed laparoscopically by completion cholecystectomy along with laparoscopy CBD exploration for two cases with CBD Stone."
Therefore, in case there was any remnant Gall bladder or stone that was complication of the procedure and not the negligence. To support this plea, he has further relied upon the judgment of the Hon'ble National Commission reported in 2016(3) CLT 14 "Sanjay Gadekar (Dr.) versus Sangamitra @ Sandhya Khobragade". In that case, Gall stones were removed by way of corrective surgery, however, the patient developed obstructive jaundice. Patient was called for re-admission but the patient chose to go to other doctors. It was observed by the Hon'ble National Commission that post operative complication was not due to any negligence during surgery performed by doctor. However, the patient did not follow the Doctor's instructions for correction of post operative complication. It was further observed that most medical injuries are result either of the inherent risk in the practice of medicine or due to system errors and it was held that the Doctor was not negligent. It was argued that the First Appeal No. 16 of 2016 9 District Forum did not appreciate the case and evidence of the Op from any angle and has wrongly awarded compensation of Rs. 2 lacs against Ops. The order is liable to be set-aside.
10. Whereas on the other hand, counsel for the respondent/complainant argued that on the basis of Ultrasound report dated 13.8.2013 referred above surgery was conducted by Op No. 1 on 5.8.2013 and was discharged on 7.8.2013. As per discharge slip Ex. C-4, treatment was under anaesthesia, laprascopic cholecystectomy and post operative uneventful and condition at the time of discharge was stated to be satisfactory and after 7 days, stitches were removed on 7.8.2013. However, the complainant in the month of October, 2016 again experienced pain in abdomen and approached Op No.1. They referred to Romana Ultrasound Echo & Colour Doppler Centre and according to their report Ex. C-7, it was suggestive of 'small Rt. Lobe liver cyst & GB stump stones'. Then he approached PGI and their CEMRI and MRCP report is Ex. C-8 wherein residual gall bladder/massively dilated cystic duct stump containing gall stones was observed for which he had to go for second surgery in the PGI. Therefore, the findings of the Op in their discharge summary that surgery was uneventful and satisfactory are not correct. The plea taken by the Op in their written statement that during the laproscopic cholecystectomy procedure, it was observed by Op No. 1 that there was significant inflammation and adhesions of stomach, gall bladder and intestine due to acute cholecystitis with cholelithiasis with mucocele formation. The cystic duct was found to be short and wide. Although it was a difficult surgery but it was First Appeal No. 16 of 2016 10 successfully completed. No doubt that remnant stone is a complicated procedure. A part of remnant gall bladder may be a complication of the procedure but Op No. 1 should give a true picture. In case complete Gall Bladder was not removed for any complication then its note should have been given in the medical notes and discharge summary so that the complainant should be aware of that and could get corrective surgery subsequently but this fact was not brought to the complainant, it came to his knowledge when in the month of October 2013, he felt abdominal pain again and go for ultrasound and MRI when he came to know that complete gall bladder was not removed and still stones were there for which he had to go for 2nd surgery. It is not short of medical negligence, therefore, the findings recorded by the District Forum are correct findings and those be affirmed.
11. We have considered the contentions as raised by the counsel for the parties. It is an admitted fact that on 3.2.2012, ultrasound was conducted and on the basis of ultrasound report, it was recommended for removal of the gall bladder so that stones in the gall bladder could be removed for which the complainant was admitted in Op Hospital on 5.8.2013 and after laparoscopic surgery, it was uneventful and satisfactory as per Op No. 1, the patient was discharged on 7.8.2013. After a week his stitches were removed and the complainant was not asked to again visit the hospital. No doubt that biopsy was taken and sent to Mittal Labs and its report is Ex. C-5. On the basis of that, Op say that gall bladder was removed only then its biopsy was sent to Mittal Labs, whose report is Ex. C-5. First Appeal No. 16 of 2016 11 However, it was not end of the pain of the complainant when in the month of October, complainant again suffered abdominal pain and he reported to Op No. 1, who further referred to Romana Ultrasound Echo & Colour Doppler Centre and they in their report Ex. C-7 observed that 'there is 21mm cystic mass along undersurface of Rt. Lobe of liver between GB & Rt. Kidney. Gall bladder is not visualized (Cholecystectomy done). However, there is 58x26mm cystic mass in GB fossa with few calcific foci in its lower part & 20x12mm stone in its upper part.
12. To be more certain, complainant further reported to the PGI and their CEMRI and MRCP was done and its findings were as under:-
"Present MR shows residual gall bladder/ massively dilated cystic duct stump containing gall stones with mild adjacent inflammatory changes. No evidence of intra/extrahepatic biliary obstruction."
It makes it clear that residual gall bladder was there, it was massively dilated cystic duct stump containing gall stones. The OPD card of the complainant is Ex. C-9 where diagnose was 'open completion cholectystectomy'.
13. There is no dispute with regard to the fact that remnant gall bladder stone or remnant gall bladder may be the complication of the procedure. As per the medical literature relied upon by the counsel for the Ops i.e. Journal of Minimal Access Surgery referred above but it is not only the calculus but a part of the gall bladder was still there, which was making the problem. In case due to any difficulty First Appeal No. 16 of 2016 12 in the procedure, complete gall bladder was not removed then its note should have been given by Op No. 1 in its discharge slip (Ex. C-
4) but no such note was given, rather, it has been mentioned that laproscopic cholecystectomy was uneventful and satisfactory, which was actually not because complete gall bladder was not removed and complete gall stones were not removed for which the complainant had to go for 2nd surgery in PGI. In case complete surgery would have been done by Op No. 1 then there was no need for the complainant to go for 2nd surgery. Further Op No. 1 after the surgery did not opt for 2nd ultrasound report to check whether all the stones in the gall bladder or gall bladder was removed. No such report was taken by Op No. 1 before discharge of the complainant from the hospital. Therefore, post operative care was not upto the mark.
14. Another point was raised that there is no expert report. When we have ultrasound report from Romana Ultrasound Echo and Colour Doppler Centre, Bathinda and CEMRI and MRCP report of the PGI is there as referred above, which makes it clear that complete gall bladder and stones were not removed whereas as per the version of the Op, operation was uneventful and satisfactory, therefore, the reports referred above make it clear that it was not uneventful and satisfactory because complete gall bladder and stones were not removed. Therefore, in case we have already on the record CEMRI and MRCP report and ultrasound report on the record then no further expert report is required to check it whether the surgery conducted by Op No. 1 is upto the mark or post operative care was as per the required medical protocol . Then Op No. 1 has First Appeal No. 16 of 2016 13 tried to conceal the facts. In case there was some problem in the surgery, the same should have been reflected in the discharge card but for the reasons best known to the Doctor, no such report was made in the discharge summary, therefore, concealment of real facts also amounts to deficiency in service on the part of Op No.1. All these facts were properly appreciated by the District Forum and we are of the opinion that the plea taken by the counsel for the Op is not correct. There is no doubt about the complication of the procedure but we are of the opinion that true picture was not been brought by Op No. 1. In case they charged full fee from the complainant they did not give correct report to the complainant. Complete gall bladder and stones were not removed and its note was not given in the discharge summary. Complainant again experienced pain in the abdomen in the month of October, 2013, again reported to Op No. 1, who referred for ultrasound report from Romana Ultrasound Echo and Colour Doppler Centre, Bathinda, which gave a report of remnant gall stone and further the report of the PGI reported remnant gall bladder and stones for which the complainant had to go for 2nd surgery. Therefore, surgery as well as post operative care is not correct, rather, Op No. 1 has concealed the material facts with regard to the treatment from the complainant i.e. non-removal of complete gall bladder and stones, which amounted to medical negligence and deficiency in service. The judgment referred by counsel for Op No. 1 is not applicable to the facts of the case. Therefore, we agree with the findings recorded by the District Forum and those, are hereby affirmed. First Appeal No. 16 of 2016 14
15. Sequel to the above, we do not see any merit in the appeal and the same is dismissed with no order as to costs.
16. The appellant had deposited an amount of Rs. 25,000/- and Rs. 1,00,000/- with this Commission in the appeal. These amounts with interest accrued thereon, if any, be remitted by the registry to respondent No. 1/complainant by way of a crossed cheque/demand draft after the expiry of 90 days, from the despatch of the order to the parties; subject to stay, if any, by the higher Fora/Court.
17. Remaining amount, if any due, shall be paid by the appellant to respondent No.1/complainant within 30 days from the receipt of the copy of the order.
18. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
19. Order be communicated to the parties as per rules.
(Gurcharan Singh Saran)
Presiding Judicial Member
January 13, 2017. (Surinder Pal Kaur)
as Member