State Consumer Disputes Redressal Commission
Dr.S.Ghosh vs Laxmi Narayan Agrihari & Anr. on 2 August, 2018
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2018/164
Instituted on : 26.05.2018
Dr. S. Ghosh, S/o Late Dr. P. Ghosh,
Aged about 60 years,
Ghosh Surgical Nursing Home,
Near Maharashtra Mandal, Bilaspur,
Tikrapara, Bilaspur (C.G.). ... Appellant (O.P. No.1)
Vs.
1. Laxmi Narayan Agrihari,
S/o Late Shiv Darshanlal Agrihari,
Aged about 51 years,
R/o : Katiapara Uday Chowk, Juna,
Bilaspur, District Bilaspur (C.G.) ... Respondent No.1 (Complainant)
2. Apollo Hospital,
Through : Dr. Devendra Singh,
Lingiadih,
Bilaspur, District Bilaspur (C.G) ... Respondent No.2 (O.P. No.2).
PRESENT: -
HON'BLE JUSTICE SHRI R.S.SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
HON'BL SMT. RUCHI GOEL, MEMBER.
COUNSEL FOR THE PARTIES: -
Shri Abhishek Sinha and Shri Ghanshyam Patel, Advocates for the
appellant (O.P. No.1).
Shri R.D. Sharma, Advocate for the respondent No.1 (complainant).
None for the respondent No.2 (O.P. No.2).
ORDER
Dated : 02/AUGUST/2018 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 29.01.2018, passed by the District Consumer Disputes Redressal Forum, Bilaspur (C.G.), // 2 // (henceforth called "District Forum") in Complaint Case No.CC/309/2008. By the impugned order, the District Forum, has directed that :-
(a) The O.P.No.1 Dr. S. Ghosh will pay a sum of Rs.3,25,000/-
(Rupees Three Lakh and Twenty Five Thousand) towards treatment expenses to the complainant within a period of two months from the date of order, along with interest @ 9% p.a. from the date of filing complaint i.e. 30.12.2008 till date of payment.
(b) The O.P. No.1 Dr. Ghosh will also pay a sum of Rs.3,00,000/- (Rupees Three Lakhs), to the complainant towards compensation.
(c) The O.P.No.1 Dr. Ghosh will also pay a sum of Rs.5,000/- (Rupees Five Thousand), to the complainant towards cost of litigation.
(d) The O.P.No.2 Apollo Hospital, Bilaspur will bear its own cost.
2. Briefly stated the facts of the complaint of the complainant are that he suffered stone in gall baldder in March, 2008 and for the treatment of which he was admitted in nursing home of the O.P.No.1 on 05.03.2008. After preliminary investigation, the O.P.No.1 informed the complainant that he is having stone in the gall bladder for which he needs to undergo surgical procedure to cure him. The O.P.No.1 performed the surgery of the complainant on 06.03.2008 by using deadly weapons. The alimentary // 3 // canal of the complainant was cut due to which his stomach swelled and he developed jaundice. When his condition deteriorated, then the O.P.No.1 referred him to Apollo Hospital on 10/03/2008. On examination, the Apollo Hospital informed that his alimentary canal was cut and therefore it was repaired by a second operation by putting a plastic stent in his abdomen for which he had to pay Rs.10,000/- and thereafter he was discharged by the Apollo Hospital on 10.03.2008. Thereafter the complainant was referred to K.E.M. Hospital, Mumbai for better treatment. On examination it was found that due to operation performed by the O.P. No.1, the bile duct was cut. The complainant was treated and ultimately he had to stay for a considerable time and thereafter has recovered. The O.P.No.1 committed medical negligence in conducting open surgery and due to his negligence, the alimentary canal of the complainant was cut, therefore, he was required to take treatment unnecessarily from the Apollo Hospital as well as K.E.M. Hospital, Mumbai. The complainant suffered financial loss and also suffered mental agony. Hence the complainant filed consumer complaint before the District Forum and prayed for granting reliefs, as mentioned in the relief clause of the complaint.
3. The O.P.No.1 filed his written statement and averred that the complainant was brought in the O.P. No.1 Hospital on 05.03.2008 with complaint of severe pain in the abdomen. It was informed by the // 4 // complainant and revealed from the previous reports brought with him that the patient had several recurrent attacks of cholecystitis and choleolithiasis (gall bladder stones) for last two years which could have been relieved by surgical intervention. Amount of Rs.8,000/- only was paid by the complainant to the O.P. No.1. The surgery was carried out on 06.03.2008. During post operative admission in the Hospital the patient developed Jaundice on 10.03.2008 suspecting known complication of surgery. The patient was advised for ERCP which was carried out at Apollo Hospitals, Bilaspur, in which complications were reported. The patient was referred to K.E.M. Hospital, Mumbai for further management, in time and patient was treated in needful. It is clear from the report and record submitted by experts from K.E.M. Hospital, Mumbai, the patient has been properly managed and referred to higher centre after diagnosis of known complication of surgery of gall bladders (cholecytectomy). The patient was explained about the pros and cons of the surgery and after getting written consent of the patient with all preoperative requisite investigation, the patient was operated for cholecytectomy under General anaesthesia. The gall bladder was highly infected pulpy with lots adhesion at the site. The surgery was carried out with all expertise of O.P. No.1. The O.P. No.1 complied with all standard prescribed norms. The implant of stent is standard procedure of treatment for such type of complication which developed in the patient post-operatively. The complication of surgery were explained to the // 5 // patient prior to the surgery, there was no negligence or deficiency in service on the part of the O.P. No.1 in treating the patient. When the O.P. No.1 suspected complication in patient, he was referred to Higher Centre for his further management. It is also submitted that the immediate referral of the patient to higher centre on diagnosis of a complication, does not amount to deficiency in service or medical negligence on the part of the treating doctor. The patient was further managed for his complications by two hospitals of repute referring hospital has not report any deviation in line of treatment or fault in surgical technique adopted by the O.P. No.1. The O.P. No.1 has not committed any deficiency in service or medical negligence. The complaint is liable to be dismissed against the O.P. No.1.
4. The O.P. No.2 filed its written statement and denied the allegations made by the complainant in the complaint against the O.P.No.2. The O.P.No.2 has not committed any deficiency in service. The complainant has impleaded O.P.No.2 as party in the complaint to harass him. The complaint is liable to be dismissed with compensatory cost to the tune of Rs.5,00,000/-.
5. The complainant has filed document. The annexure A/1 is ERCP Report issued by Apollo Hospitals, Bilaspur, Annexure A/2 is prescription dated 11.03.2008 issued by Ghosh Surgical Nursing Home, Bilaspur (C.G.), Annexure A/3 is Pre-Operative record of Department of // 6 // Anaesthesiology, K.E.M. Hospital, Mumbai, A/4 is continuation sheet dated 12.03.2008 of Municipal Corporation of Greater Mumbai, Annexure A/4A is Inpatient Record, Annexure A/5 is details regarding bills, Annexure A/6 is Discharge Summary issued by K.E.M. Hospital, Mumbai, Annexure A/7 is details regarding railway ticket fare, House Officer Notes of Municipal Corporation of Greater Mumbai, Pre-operative Record of Department of Anaesthesiology, K.E.M. Hospital, Mumbai, Consent for Surgery, Appointment Form, K.E.M. Hospital, Mumbai, Biochemical Investigation Report of K.E. M. Hospital, Mumbai, X-Ray Request Forms, Grouping and Matching of Blood For Transfusion, ECG Report, Report of K.E.M. Hospital, Mumbai, Intake and Output Chart of K.E.M. Hospital in respect of different dates.
6. The O.P.No.1 has filed documents. Documents are photocopies of Ultrasonography Report dated 02.02.2002, abdominal Sonogram report dated 05.02.2002 issued by Dr. B.K. Nema, Upper Gastrointestinal Endoscopy Report dated 06.02.2002 issued by Dr. K.K. Sao, prescription dated 19.05.2006 issued by Ghosh Surgical Nursing Home, Bilaspur, prescription dated 08.01.2007 issued by Ghosh Surgical Nursing Home, Bilaspur, prescription dated 05.03.2008 issued by Ghosh Surgical Nursing Home, Bilaspur, Consent of Patient / Relative, ERCP Report, Biochemistry Report dated 10.03.2008, Haematology Report and Liver Function Test Report, ERCP Report dated 10.03.2008, Histopathology // 7 // Report, issued by Dr. Prabhat Kumar Das, Report issued by Relief Patho Lab, report dated 06.03.2008 issued by Dr. G. Bose, S.K. Pathology Laboratory, Bilaspur (C.G.), report dated 22.04.2008 issued by Dr. G. Bose, S.K. Pathology Laboratory, Bilaspur (C.G.), Biochemistry Report dated 22.04.2008 issued by Dr. G. Bose, S.K. Pathology Laboratory, Bilaspur (C.G.), Liver Function Test Report dated 07.03.2008 issued by Dr. G. Bose, S.K. Pathology Laboratory, letter dated 11.03.2008 sent by Amit Soni, Ghosh Surgical Nursing Home, Bilaspur (C.G.) to Dr. Chetan Kantharia, KEM Hospital, Bilaspur (C.G.), prescription dated 06.03.2008 issued by Ghosh Surgical Nursing Home, Bilaspur , Sonography Report dated 06.03.2008 issued by Lokpriya Colour Sonography and X-Ray Centre, Bilaspur.
7. Previously, the learned District Forum vide order dated 20.03.2014 allowed the complaint of the complainant and directed that :-
(a) O.P.No.1 Dr. Ghosh will pay a sum of Rs.3,25,000/- (Rupees Three Lakh and Twenty Five Thousand) towards treatment expenses to the complainant within a period of two months from the date of order along with interest @ 9% p.a. from the date of filing complaint i.e. 30.12.2008 till date of payment.
(b) The O.P. No.1 Dr. Ghosh will also pay a sum of Rs.3,00,000/-
(Rupees Three Lakhs) to the complainant towards compensation.
// 8 //
(c) The O.P.No.1 Dr. Ghosh will also pay a sum of Rs.5,000/- (Rupees Five Thousand) to the complainant towards cost of litigation.
(d) The O.P.No.2 Apollo Hospital, Bilaspur will bear its own cost. 7.1. The O.P. No.1 Dr. S. Ghosh filed Appeal No.FA/2014/265 before this Commission against the order dated 20.03.2014, passed by the District Forum.
7.2. At the appellate stage, the O.P. No.1 filed an application under Order 41 Rule 27 CPC for taking additional evidence on record, along with copy of the expert opinion of Dr. Girish D. Bakshi and copy of affidavit of Dr. Ravindra D. Bapat.
7.3. Vide order dated 02.07.2016, this Commission has allowed the appeal filed by the O.P. No.1 and the documents filed by the O.P. No.1 were taken on record as additional evidence. The case was remitted back to the District Forum with direction that "the District Forum will take the documents on record, which have been filed by the appellant (O.P.No.1) at the appellate stage, and if the respondent No.1 (complainant) wishes to file expert opinion in rebuttal of the documents ,which have been filed by the appellant (O.P.No.1) at the appellate stage as additional evidence, then the District Forum will provide such opportunity to the respondent No.1 (complainant) and thereafter by providing opportunity of hearing to the // 9 // parties, the District Forum, will decide the matter afresh its own merit. Parties are directed to appear before the District Forum, Bilaspur (C.G.) on 03.08.2016. The photocopies of the documents, which have been filed by the appellant (O.P.No.1) before us at the appellate stage, be sent to the District Forum, Bilaspur (C.G.) along with record of the case forthwith."
8. After remand of the matter, learned District Forum after hearing both the parties again, allowed the complaint of the complainant and awarded compensation to the complainant, as mentioned here in above in para 1 of this order.
9. Shri Abhishek Sinha, learned counsel appearing for the appellant (O.P. No.1) has argued that initially the appellant (O.P. No.1) had filed appeal against the order dated 30.03.2014 of the District Forum, before this Commission which was registered as Appeal No.FA/2014/265. The appellant (O.P. No.1) filed an application under Order 41 Rule 27 CPC, along with copy of the expert opinion of Dr. Girish D. Bakshi and copy of affidavit of Dr. Ravindra D. Bapat. The application was allowed and the documents were taken on record and the case was remitted back to the District Forum with a direction that the District Forum will take the documents on record, which have been filed by the O.P. No.1 at the appellate stage and if the complainant wishes to file expert opinion in rebuttal of the documents, which have been filed by the O.P. No.1, as additional evidence, the District Forum will provide such opportunity to // 10 // the complainant, but the complainant did not file any expert opinion in rebuttal, even then learned District Forum has observed in para 7 of the impugned order that the O.P. No.1 has filed expert report of Dr. Girish D. Bakshi and affidavit of Dr. Ravindra D. Bapat at the appellate stage which was filed after 8 months. The O.P. No.1 did not assign any reason regarding obtaining above documents belatedly, which establishes the intension of the O.P. No.1 to obtain concocted documents in his favour, therefore, the above documents are not helpful for the O.P. The above finding recorded by the District Forum, is against the order dated 02.07.2016 passed by this Commission in Appeal No.FA/2014/264 whereby this Commission had allowed the application filed by the O.P. No.1 under Order 41 Rule 27 CPC and the documents were taken on record as additional evidence, therefore, the District Forum has only right to examine the documents and give the reason for believing or disbelieving the document. The District Forum has no right to observe that the above documents are concocted documents, therefore, the above observations made by the District Forum is perverse and contrary to law. Shri Sinha has further argued that the District Forum did not consider the expert opinion given by K.E.M. Hospital, Mumbai and also did not consider the medical authorities contained in the medical literature. The Expert Opinion given by Dr. Girish D. Bakshi and affidavit of Dr. Ravindra D. Bapat are admissible in evidence. The respondent No.1 (complainant) was a chronic case of re-current acute cholecystitis for the // 11 // last many years. The said fact has been established by the treatment papers annexed with record. The burden to prove the allegation of medical negligence is on the respondent No.1 (complainant) and the respondent No.1 (complainant) has utterly failed to prove that the appellant (O.P. No.1) has committed any medical negligence. It is settled proposition of law that in the field of medical negligence, the expert opinion is material for reaching to the conclusion that the doctor has committed any medical negligence, but in the instant case, no such expert opinion has been produced by the respondent No.1 (complainant). The expert opinion has been given by Dr. Girish D. Bakhshi, which is in favour of the appellant (O.P.No.1). In the said expert opinion, Dr. Girish D. Bakhshi, has specifically opined that "the primary surgeon, Dr. Sunit Ghosh, has taken utmost precaution while performing the surgery and has demonstrated excellent clinical acumen by diagnosing biliary injury early Intraoperatively, managing and referring the patient to a tertiary hospital with his paramedical staff. He has even constantly followed by with the concerned doctor and patient. There is no act of medical negligence, moreover, on the contrary, he has done his best for the well being of the patient." The learned District Forum, did not appreciate the above expert opinion and has erroneously reached to the conclusion that the appellant (O.P.No.1) committed medical negligence. The proper consent has been obtained by the appellant (O.P.) and the consequences of the surgery was properly explained to the respondent No.1 (complainant) and his relatives. The // 12 // appellant (O.P. No.1) possesses requisite qualification and he is most experienced and qualified Surgeon. He is practising as a Surgeon for near about 35 years and he personally counsel his patients and attendants about the nature of problem and plan of treatment. Shri Abhishek Sinha, has further argued that according to the medical literature, the treatment for cholecystectomy is performed by laparoscopy or by open technique. Open technique is mostly adopted by the Surgeons. The allegation made by the respondent No.1 (complainant) in the complaint is vague. The respondent No.1 (complainant) pleaded that the appellant (O.P.No.1) conducted his operation with the help of deadly weapons and due to operation conducted by the appellant (O.P. No.1), the alimentary canal was cut. It appears that the respondent No.1 (complainant) has utterly failed to prove that the appellant (O.P.No.1) committed any medical negligence, therefore, the appeal of the appellant (O.P.No.1) may be allowed. He placed reliance on Talit Chaudhry Vs. All India Institute of Medical Science, [2012] 4 CPR (NC) 565; First Appeal No.484 of 2015 - Dr. Sanjay Gadekar Vs. Sangamitra @ Sandhya Khobragade decided by Hon'ble National Commission on 20.05.2016; Kishori Lal Vs. E.S.I. Corporation, II (2007) CPJ 25 (SC); Ajay Gupta Vs. Pradeep Aggarwal (Dr.) & Ors. IV (2007) CPJ 64 (NC); V. Bhavani Vs. Dr. S. Siva Subramaniam, I (2013) CPJ 584 (NC); Anand Prakash Vs. Satya Sawant & Anr., I (2013) CPJ 588 (NC); C.P. Sreekumar (Dr.) Vs. S. Ramanujam, II (2009) CPJ 48 (SC); Nizam Institute of Medical Sciences Vs. Prasanth // 13 // S . Dhananka & Ors., II (2009) CPJ 61 (SC); and Martin F. D'Souza Vs. Mohd. Ishfaq, I (2009) CPJ 32 (SC).
10. Shri R.D. Sharma, learned counsel appearing for the respondent No.1 (complainant) has argued that the respondent No.1 (complainant) came to the appellant (O.P.No.1) for treatment and preliminary investigation was done by the appellant (O.P.No.1) and he informed that the complainant is having stone in gall bladder for which open surgery is required to be conducted. The appellant (O.P.No.1) performed surgery by using deadly weapons. The appellant (O.P.No.1) referred the respondent No.1 (complainant) to Apollo Hospital. On examination, the Apollo Hospital, informed the respondent No.1 (complainant) that the operation was conducted by the appellant (O.P.No.1) carelessly and negligently with deadly weapons therefore, his alimentary canal was cut and it was repaired by second operation by putting a plastic stent in his abdomen. The Apollo Hospital, referred the respondent No.1 (complainant) to K.E.M. Hospital, Mumbai where he had taken treatment. The appellant (O.P.No.1) has not properly obtained consent of the respondent No.1 (complainant) in respect of the open surgery and also did not explain him consequences and complications of the open surgery and without obtaining proper consent, open surgery was conducted by the appellant (O.P.No.1) with deadly weapons, which comes within purview of medical negligence, therefore, the District Forum has rightly awarded compensation to the respondent No.1 // 14 // (complainant). The impugned order passed by the District Forum, is just and proper and does not call for any interference by this Commission. The appeal filed by the appellant (O.P. No.1) is liable to be dismissed. The respondent No.1 (complainant) has placed reliance on Appeal No.FA/2014/748 - Dr. Y.R. Krishna, Krishna Institute of Medical Sciences Vs. Ramnath Pandey & Another, decided by this Commission vide order dated 28.12.2015, Literature on Medical Negligence, Literature on Short Practice of Surgery 24th Edition.
11. Before us, none appeared for the respondent No.2 (O.P. No.2) on 28.07.2018, when the case is fixed for final hearing, inspite of service of notice.
12. We have heard learned counsel appearing for the appellant (O.P. No.1) and respondent No.1 (complainant) and have also perused the record of the District Forum as well as the impugned order passed by the District Forum.
13. In the book titling "Medical Negligence" written by Shri S.P. Tyagi (Edition 2004) Reprint 2008, it has been mentioned at Page No.64, 65, 66, 67 and 68 regarding Medical Negligence, Classification of medical negligence or mistakes. It runs thus :-
"What is Medical negligence The term medical negligence is nowhere defined in any Code or Act. No legislature, has so far, made any attempt to define it. Even the medico-legal jurists have not come forward to provide a specific meaning to this express.
// 15 // 'Medical negligence' is always an outcome of doctor patient inter se conduct and relationship, which lacks uniformity. The issue of medical negligence is a complicated one as medical professionals deal with human body. They do not deal with the machine. Human body is not a mere composition of bones and flesh. It is susceptieable to emotions also. Response of medicinal treatment varies from patient to patient. This phenomenon is also applicable to recovery aspect. Further recovery aspect is not solely dependent upon the appropriateness of treatment provided by the doctor. Response or recovery of a patient also depends on his individual anatomy and physiology. Possibility cannot be ruled out that a drug may be effective in case of one patient, it may not be effective in second and may cause reaction in third. Medico Legal experience also establishes that there exist inherent risk in every treatment, medicinal or surgical. Further possibility of unforeseen mishap may not be ruled out. Even the medicinal literature provides for failure rates particularly in surgery.
The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be more than one course of treatment which may be advisable for treating a patient. Medical opinion may differ with regard to the course of action adopted by a doctor treating a patient.
Further the concept of medical negligence may be studied with reference to the extent of approach of a medical professional towards three under mentioned concepts, which generally work as guidelines to determine the factum of medical negligence or otherwise in a particular case.
(1) Duty of care in accepting the patient for treatment.
(2) Duty of care in providing appropriate treatment.
(3) Breach of duty or commission of negligence in any of them and damage cause by such breach.
In other words, medical negligence is result of some irregular conduct on the part of any member of the profession or related services in discharge of professional duties. Broadly speaking medical negligence means negligence resulting from the failure on the part of the doctor to act in accordance with medical standards in vogue, which are being practiced by an ordinary and reasonably competent man, practicing on the same branch of medicine or surgery.
Classification of medical negligence or mistakes. Negligence in medical care may broadly be classified into four categories :-
// 16 // (1) Medical negligence at the level of doctors / paramedical staff / hospital authorities. Liability for negligence may be fixed at individual level and / or jointly or vicariously where hospitals nursing homes are involved.
(2) Negligence at the level of patient himself or his attendants also known as contributory negligence.
(3) Negligence at the level of manufacturers of drugs, equipment etc. and dispensers.
(4) Composite negligence i.e. at more than one of the above 3 levels.
Negligence of first category may further be sub-classified into two categories viz.
(i) Individual liability of a medical professional.
(ii) Vicarious liability of an individual doctor or hospital for the Medical negligence may also be classified as under :
1. Medical mistakes.
2. Clinical negligence.
3. Surgical mistakes
4. Misplaced injection."
14. In Dr. Laxman Balkrishna Joshi v. Dr Trimbak Bapu Godbole and another, AIR 1969 Supreme Court 128 (V 56 C 27), Hon'ble Supreme Court has observed thus :-
"11. The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a // 17 // reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires : (cf. Halsbury's Laws of England, 3rd ed. Vol. 26 p. 17). The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency..........."
15. In Smt. Tilat Chaudhary & Anr. Vs. All India Institute of Medical Sciences & Anr., Hon'ble National Commission has observed that "Laparoscopic Cholecystectomy for removal of stones in Gall Bladder. Injury to Bile Duct during operation. CBD injury was caused and detected during Laparoscopic dissection procedure and said procedure was converted into open cholecystectomy to rectify complication. CBD injury is a well-known complication of laparoscopic cholecystectomy procedure and frequency of such complications has increased with advent of laparoscopic cholecystectomy. Incidence of CBD injury is a well-known risk when a patient undergoes a laparoscopic cholecystectomy procedure. Same cannot be correlated as act of negligence or carelessness on part of operating surgeon. Merely because laparoscopic cholecystectomy had to be converted to open cholecystectomy procedure, it cannot be said that laparoscopic cholecystectomy procedure adopted by surgeon was counter indicative. Once it is shown that due medical protocol was followed, no case of medical negligence is made out against opposite parties. Complainants have failed to establish their case about medical negligence and/or deficiency in service against opposite parties."
// 18 //
16. In Dr. Sanjay Gadekar Vs. Sangamitra @ Sandhya Khobragade (Supra), Hon'ble National Commission has observed thus :-
"11 In this context we place reliance upon few judgments of Hon'ble Supreme Court. In Jacob Mathews Case (2005) 6 SCC 1, it was observed by Hon'ble Supreme Court as :
"When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions."
In Achutrao Haribhau Khodwa & Others v. State of Maharashtra & Others (1996) 2 SCC 634, the Hon'ble Supreme Court held that :
"in the very nature of medical profession, skills differ from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor, so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable, if the course of action chosen by him was acceptable to the medical profession."
The Hon'ble Supreme Court in the case Kusum Sharma & Others Vs. Batra Hospital & Medical Research Centre & Others (2010) 3 SCC 480; the bench comprising Hon'ble Justices Dalveer Bhandari and H.S. Bedi while dismissing the complaint held that :
// 19 // "Consumer Protection Act, (CPA) should not be a "halter round the neck" of doctors to make them fearful and apprehensive of taking professional decisions at crucial moments to explore possibility of reviving patients hanging between life and death."
... ... ... xxxxx......
It further observed as, "It is a matter of common knowledge that after some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish."
25. In Hucks v. Cole & Anr (1968) 118 New LJ 469, Lord Denning speaking for the Court, observed as under :
"a medical practitioner was not to be held liable, simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner, in his field."
17. The appellant (O.P.No.1) has filed photocopy of the consent letter dated 05.03.2008. In the said consent letter, the date and time of operation is mentioned as 05.03.2008 at about 9.00 P.M. and it is also mentioned that the patient was referred to K.E.M. Hospital, Bombay. In the said consent letter it is also mentioned that "I am willing for my operation under Local/General anesthesia risk and complication of operation and anesthesia have explained to me in my own Language". The signature was put in the consent // 20 // letter and the name of the respondent No.1 (complainant) is mentioned in the consent letter. It appears that before conducting operation, the consent of the respondent No.1 (complainant) was properly obtained by the appellant (O.P.No.1).
18. In the Literature Bailey's & Love's Short Practice of Surgery 24th Edition it is mentioned thus :-
"Treatment Conservative treatment followed by cholecystecomy Experience shows that in more than 90% of cases the symptoms of acute cholecystitis "Laparoscopic cholecystectomy The preparation and indications for cholecystecomy are the same whether it is performed by laparoscopy or by open techniques. However, a laparoscopic cholecystectomy should be performed only by a surgeon who is frequently undertaking laparoscopic procedures as the skills are different from those required in undertaking an open cholecystectomy.
Indications for choledochotomy In an environment in which neither the modern diagnostic armamentarium described at the beginning of this chapter nor per- operative cholangiography is available, it is well to remember the traditional indications for choledochotomy, which are : (1) palpable duct stones; (2) jaundice or a history of jaundice or cholangitis; (3) a dilated common bile duct; and (4) abnormal liver function tests, in particular a raised alkaline phosphatise.
// 21 // Unless the expertise is available, it is probably inadvisable to perform a choledochotomy laparoscopically; rather one should rely on endoscopic techniques. The incidence of symptomatic stones in the bile duct varies from 5% to 8%. These can, in the main, be dealt with endoscopically without resort to opening the duct. However, current trails suggest that in experienced hands the morbidity of the two techniques is identical.
MAINAGEMENT OF BILE DUCT OBSTRUCTION Patients with symptoms developing either immediately or delayed after a cholecystectomy, particularly if janudice is present, need urgent investigations. This is especially true if the jaundice is associated with infection, a condition called cholangitis (Box 65.6). The first step in management is to undertake an immediate ultrasound scan. If there is evidence of fluid in the subhepatic space or obstruction of the biliary tree as shown by the bile duct dilatation then, after resuscitation, an immediate ERCP should be performed to ascertain whether a stone is present or there is obstruction of the common bile duct due to damage at the time of surgery. (Fig. 65.38).
Choledochotomy When faced with a sick patient whose investigations show that the cause of the cholangitis is stones in the duct and minimally invasive techniques for stone extraction are not available, the surgeon has no alternative but to undertake a laparotomy. The aim of this surgery is to drain the common bile duct and remove the stones by a longitudinal incision in the duct. When the duct is clear of stones, a tube is inserted and the duct closed around it; the long limb is brought out on the right side and the bile allowed to drain externally. When the bile has become clear and the patient recovered, a cholangiogram is performed by the radiologist. If residual stones are found, the tube is left in place for 6 weeks so that the track is 'mature' and then the radiologist can use it for percutaneous // 22 // removal of the stones. (Fig. 65.40). Once the radiologist has removed the tube, the track will close and the patient make a rapid recovery.
If the gall bladder was not removed at operation as the patient was too sick, it is reaswonable to postpone the cholecystectomy until symptoms develop, as only 20% of patients will require further treatment.
Postoperative stricture Postoperative strictures can occur in either the common bile duct or the common hepatic duct. In a few cases, only the right hepatic duct is implicated. The stricture is the result of a preventable error in technique during the performance of cholecystectomy"
Should cholecystectomy be performed by dissecting from the fundus (fundus-first procedure), too much traction applied to the freed gall bladder may so tent the common bile duct that any forceps intended for the cystic duct grasp the angulated main channel (Fig. 65.37).
Failure to indentify the anatomy in Calot's triangle when there is much inflammation. The common heptic duct is tied instead of the cystic duct.
Ignorance of the anatomical anomalies of the bile ducts. Laceration of the common bile duct while exploring it for stones. In 3% of cases of stricture of the common bile duct, injury occurs during related surgical procedures.
About 15% of injuries to the bile ducts are recognised at the time of operation. In 85% of cases, the injury declares itself postoperatively by (1) a profuse and persistent leakage of bile if drainage has been provided, or the bile peritonitis if such drainage has not been provided; and (2) deepening obstructive jaundice. When the obstruction is // 23 // incomplete, jaundice is delayed until subsequent fibrosis renders the lumen of the duct inadequate.
Any change in billrubin or suggestion of duct damage requires investigation and the nature of the bile duct injury clarified. The surgical repair and subsequent outcome is related to the level of injury, which is determined using the Bismuth classification (Table 65.1).
19. In the Literature Schwartz's Principles of Surgery Ninth Edition, it is mentioned thus :-
"Extrahepatic Bile Ducts Penetrating trauma to the extrahepatic bile ducts is rate abnd usually associated with trauma to other viscera. The great majority of injuries of the extrahepatic biliary duct system are iatroge occurring in the course of laparoscopic or open cholecystecmies...
Diagnosis Only about 25% of major bile duct injuries (common bile duct or hepatic duct) are recognized at the time of operation. Most commonly, intraoperative bile leakage, recognition of the correct anatomy, and an abnormal cholangiogram lead to the diagnosis of a bile duct injury...."
20. In the Literature "Clinical G.I. Surgery Volume II" it is mentioned thus :-
"Postcholecystectomy CBD Injuries ....Duct injury is known to occur with both open and laparoscopic cholecystectomy (LC). However, the frequency and extent of ductal damage is much more with LC. The estimated reported incidence of major bile duct injuries during open cholecystectomy is 0.1% to 0.3%.....
// 24 // Major CBD injury almost always requires a technically demanding reconstruction of the biliary tree....
How to Prevent the Injury ....Injuries are likely to occur when inflammation is great, exposure is poor, and the gallbladder is densely adherent to the hepatic duct. The most common cause of injury is the gall bladder with a very short or aberrant cystic duct. ...
How to Suspect and Diagnose ?
Proper diagnosis and appropriate treatment is paramount in preventing life threatening complications of cholangitis, biliary cirrhosis, portal hypertension and end stage liver disease. The types of bile duct injury include bile leak or biliary stricture.
..... Any patient who develops obstructive jaundice immediately following cholecystectomy or who drains large amount of bile for over a week following cholecystectomy should be suspected to have a bile duct injury....."
21. Dr. Devendra Singh, has also given a Certificate dated 07.02.2015 in which it is mentioned thus :
"His ERCP revealed injury of bile duct which required specialized surgical repair at higher center at a later date for which the patient was advised. This is to emphasise that bile duct injurers following cholecystectomy are not so infrequent in cases of variable anatomy, Obesity and repeated episodes of cholecystitis. I was told that the patient had several such episodes before surgery for many years."
22. Dr. Girish D. Bakhshi, Associate Professor, Department of Surgery, Grant Medical College and Sir J.J. Group of Hospitals, Mumbai has given his expert opinion. In the Expert Opinion, it is mentioned thus :-
// 25 // "I have gone through the clinical and operative records of Laxmi Narayan Agrahari, age 55 years referred to K.E.M. Hospital (hereby referred to as "Tertiary Hospital") for specialised surgery, I offer the following comments as an expert :-
1. Cholecystectomy is a major surgery and the surgery involves meticulous dissection. The distorted anatomy in a diseased gall bladder due to adhesions make the dissection difficult. The complications of cholecystecomy are well described in literature. The prevalence of bile duct injury is estimated to be about 0.5% to 1%.
2. The local risk factors account for 15% to 35% of bile duct injury, being mainly
- Abnormal Anatomy.
- Dense Adhesions locally due to repeated attacks of cholecystitis.
- Morbid Obesity.
3. The clinical case under consideration has a long standing history of repeated attacks of cholecystitis for the past 6 years and hence it was anticipated it will be a "DIFFICULT CHOLECYSTECTOMY". Moreover the patient was morbidly obese, weighing about 98 kgs. With a Body Mass Index of 33 kg./m2 approximately.
4. The operation notes clearly mentioned that the anatomy was distorted and there were plenty of adhesions all around. In addition to this, on the operating table, it was detected that there were ABERRANT DUCTS OF LUSCHKA.
5. Anticipating a bile duct injury, a close vigil was kept post operatively to look for bile leak.
// 26 //
6. On the 3rd post-operative day it was noticed that there was a bile leak of about 350 cc. from the abdominal drain. At the same time, the patient developed clinical signs of jaundice. Immediately, diagnostic and therapeutic ERCP (Endoscopic Retrograde Cholangio Pancreatography) was done which confirmed that there was bile duct injury with bile leak. The endoscopist immediately introduced a stent to mark the position and type of injury. Biochemical investigations were performed every day from the 3rd post-operative day.
7. The patient and his relatives were counselled, informed about the complication and guided regarding transfer of the patient to a tertiary hospital in Mumbai as long as he (the patient) was in good health.
8. Arrangements were made to transfer the patient accompanied by a paramedical staff of the operation theatre of GHOSH SURGICAL NURSING HOME.
9. The Patient was subsequently operated at a tertiary centre in Mumbai and definitive corrective surgery "Hepaticojejunostomy" was done.
10. The referring surgeon, Dr. Sunit Ghosh, was in constant contact with the operating surgeon of the tertiary hospital and monitored the clinical progress of the patient at all times.
To summarize :
Bile duct injury is a challenge to surgeons. Early detection of bile duct injury and early referral to higher centre results in better corrective surgery. In this case, vigilance was kept in anticipation due to this case being one under "DIFFICULT CHOLECYSTECTOMY". The placement of a drainage at the site of operation was also indicative of vigilance on part of the operating surgeon.
As soon as it was suspected that there could be bile duct injury, immediate steps were taken to detect the site and nature of injury. There // 27 // was no delay in decision making and in advising referral to a specialized surgical gastroenterological centre. It is satisfying to note that the corrective surgery at a tertiary centre has yielded excellent result.
In long standing disease with multiple recurrent episodes of cholecystitis and in elderly and obese patients, the risk of biliary tract injury are increased many folds.
The primary surgeon, Dr. Sunit Ghosh, has taken utmost precaution while performing the surgery and has demonstrated excellent clinical acumen by diagnosing biliary injury early Intraoperatively, managing and referring the patient to a tertiary hospital with his paramedical staff. He has even constantly followed by with the concerned doctor and patient. There is no act of medical negligence, moreover, on the contrary, he has done his best for the well being of the patient."
23. Dr. Ravindra D. Bapat, who is posted in Department of Surgical Gastroenterology, Seth G.S. Medical College & K.E.M. Hospital, Parel, Mumbai has filed his affidavit in which he has stated that :-
"In long standing disease with multiple recurrent episodes of cholecystitis and in elderly obese patients the risk of biliary tract injury are increased many folds.
The standard protocol in post-operative biliary tract injury is to suspect the injury early then detect the injury and refer to a specialized center for definitive corrective surgery.
In the present clinical case the surgeon Dr. S. Ghosh suspected the possibility of bile duct injury at the earliest and was vigilant // 28 // throughout the post-operative period. At no time the treating surgeon committed error of diagnosis and management.
The patient was never neglected but other hand the prompt suspicion, detection, and referral to a higher center by the Surgeon has resulted in full recovery of the patient.
The action of the primary surgeon Dr. S. Ghosh can by no means be referred to as negligence,as at all times a quick and prompt action were taken. Keeping the interest and well-being of the patient in mind always."
24. In the Consent Letter, it is mentioned that the respondent No.1 (complainant) is referred to K.E.M. Hosptial, Mumbai for better treatment.
25. In A.K. Vishwakarma (Dr.) Vs. Kiran Sinha & Anr. and Kiran Sinha Vs. A.K. Vishwakarma (Dr.), II (2016) CPJ 204 (NC); Hon'ble National Commission has observed thus :-
"22. What constitutes medical negligence is well settled through a catena of decisions of the Hon'ble Supreme Court, including in Jacob Mathew v. State of Punjab & Anr., III (2005) CPJ 9 (SC) = VI (2005) SLT 1 = 122 (2005) DLT 83 (SC) = III (2005) CCR 9 (SC) = (2005) 6 SCC 1, a three-Judge Bench decision, Indian Medical Association v. V.P. Shantha and Others., III (1995) CPJ 1 (SC) = 1995 (SLT Soft) 561 = (1995) 6 SCC 651. Noted from these judgments, the broad principles to determine what constitutes medical negligence, inter alia, are : (i) Whether the doctor in question possessed the medical skills expected to an ordinary skilled practitioner in the field at that point of time; and (ii) Whether the doctor adopted the practice (of clinical observation diagnosis
- including diagnostic tests and treatment) in the case that is accepted as proper by a responsible body of professional practitioners in the field. In // 29 // this connection, in Jacob Mathew (supra), the three-Judge Bench, elaborating on the degree of skill and care required of a medical practitioner quoted Halsbury's Laws of English (4th Edn., Vol. 30, para
35) as follows :-
"35. The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operation in a different way..."
25. The State Commission seems to have presumed that the stone was in the kidney and that a stone of its size could not have passed out with urine in the natural process. The Medical Literature and the expert opinion clearly evidenced that the stone was in the CBD and it could have passed out naturally and that the patient had a history of cholecystectomy in the year 1997 and with all the tough adhesions, it may not be possible to detect any shadow or lesion in the pancreas and therefore, viewed from any angle, we do not see any negligence on behalf of the Radiologist in analysing the USG. The Petitioner / Complainant also could not establish any negligence on behalf of the Treating Surgeon. We observe from the record that he was impleaded in the second round of litigation but there was no amendment in the pleadings and no specific allegation as to what ought to have been done by the Treating Surgeon which was not done as per the standards of normal medical parlance. Therefore, we conclude that the patient failed to prove any negligence against either of the Doctors."
26. In this context it is relevant to cite case of Kusum Sharma & ORS. Vs. Batra Hospital & Research Centre & ORS. (Supra), in which the // 30 // conclusions under different case laws on the subject of medical negligence have been summarized as under :-
'Para" 90" In Jacob Mathew's case (supra), conclusions summed up by the Court were very apt and some portions of which are reproduced hereunder:
(1) Negligence is the breach of a duty caused by omission to do something which is a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh) referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.
(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference.
To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the 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 merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.
(3) The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising // 31 // ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
Para "94'. On scrutiny of the leading cases of medical negligence both in our country and other countries especially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:
I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. The medical professional expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care.
Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
IV. A medical practitioner would be liable only where his conduct fell below that of the // 32 // standards of a reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which is honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed // 33 // or humiliated so that they can perform their professional duties without fear and apprehension.
X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners. XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals."
27. In the instant case, the respondent No.1 (complainant) has not filed any documents to show that procedure of removal of stone from bile duct, is not applicable. According to the medical literature and expert opinion of Dr. Girish D. Bakhshi, Associate Professor, Department of Surgery, Grant Medical College and Sir J.J. Group of Hospitals, Mumbai, it appears that the open surgery can also be a mode of treatment of bile duct, which has been performed by the appellant (O.P.No.1) and the appellant (O.P. No.1) has followed the prescribed procedure, according to the medical norms. The respondent No.1 (complainant) was given opportunity to file expert opinion, in rebuttal, but the respondent No.1 (complainant) did not file any expert opinion in rebuttal of the expert // 34 // opinion given by Dr. Girish D. Bakshi and affidavit filed by Dr. Ravindra D. Bapat.
28. On the basis of above discussions, in the instant case we find that the respondent No.1 (complainant) has not been able to prove that there was any medical negligence on the part of the appellant (O.P.No.1). . As there is no medical negligence on the part of the appellant (O.P.No.1) and he has not committed any medical negligence, therefore, the respondent No.1 (complainant) is not entitled to get any compensation from appellant (O.P. No.1).
29. Therefore, the appeal filed by the appellant (O.P.No.1) is allowed and impugned order dated 29.01.2018, passed by the District Forum, is set aside. Consequently, the complaint stands dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta) (Smt. Ruchi Goel)
President Member Member Member
02 /08/2018 02 /08/2018 02/08/2018 02/08/2018