National Consumer Disputes Redressal
New India Insurance Co. Ltd & Anr vs Dr. Siya Ram Meena & Ors. on 22 January, 2019
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 654 OF 2008 (Against the Order dated 20/11/2007 in Appeal No. 599/2007 of the State Commission Chandigarh) 1. NEW INDIA INSURANCE CO. LTD & ANR REGIONAL OFFICE NO.1, 5TH FLOOR, TOWER-II, JEEWAN BHARTI BUILDING, CONNAUGHT PLACE, NEW DELHI ...........Petitioner(s) Versus 1. DR. SIYA RAM MEENA & ORS. Flat No. J-303, City of Golden Domes, Near Jagatpura Railway Over Bridge, Jagatpura Jaipur - 302 017 Rajasthan 2. SMT. MANNI DEVI, W/O SH. DEEP CHAND MEENA, Flat No. J-303, City of Golden Domes, Near Jagatpura Railway Over Bridge, Jagatpura, Jaipur - 302 017 Rajasthan 3. DR. ARUN PRASAD, MBBS, MD, (PEDIATRICS) R/O. 5720, MODERN HOUSING COMPLEX, MANIMAJRA CHANDIGARH 4. HOPE GATRO INTESTINAL DIAGNOSTIC CLINIC, 1184, SECTOR -21B, CHANDIGARH - ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE MRS. M. SHREESHA,MEMBER For the Petitioner : Dr. Sushil Kumar Gupta, Advocate. For the Respondent : Dr. S.R. Meena, R-1, in person for R-1 & 2.
NEMO for R-3 & 4 (Proforma Respondents).
Dated : 22 Jan 2019 ORDER Challenge in this Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 (for short the "Act") is to the order dated 20.11.2017 passed by the UT Chandigarh State Consumer Disputes Redressal Commission, (for short "the State Commission.") in FA No. 599/2007.
2. By the impugned order, the State Commission has allowed the Appeal preferred by the Complainants namely, Dr. Siya Ram Meena and Smt. Manni Devi and set aside the order dated 18.07.2007 of the District Consumer Disputes Redressal Forum, UT Chandigarh (for short "the District Forum") and resultantly allowed the Complaint preferred by the Complainants.
3. Briefly put, the facts of the case are that the second Complainant, namely Smt. Manni Devi (hereinafter referred to as "the Patient"), the first Complainant's mother, had undergone her therapeutic ERCP procedure with Sphincterotomy & Biliary Stent placement for papillary stenosis at Pandya Hospital & Research Centre Pvt. Ltd., C-scheme Jaipur on 06.11.2004. She started to complain of abdominal pain after about two years of placement of biliary stent. Various laboratory and radiological investigations were carried out for the same but all the investigations turned out to be normal. The first Complainant, who himself is a doctor, stated that the cause of abdomen pain was in situ CBD stent and hence on 26.12.2006 the Complainants approached Dr. Neeraj Nagpal (hereinafter referred to as "the treating Doctor") who was running Hope Gastro Intestinal Diagnostic Clinic (hereinafter referred as "the Hospital"). The first Complainant paid a consultation fee of ₹200/- to the treating Doctor. After thorough physical examination of the Second Complainant, the treating Doctor provisionally diagnosed the condition as in situ CBD stent as the cause of abdomen pain. He further advised MRCP (radiological investigation) before the removal of CBD stent to be followed by Upper GI endoscopy, if required and also suggested that both the ERCP stent removal and upper GI endoscopy were two separate procedures with charges of ₹10,000/- and ₹900/- respectively. MRCP of the patient was carried out on 27.12.2006 and reported to be normal and the first Complainant informed the same to the treating Doctor on telephone on 28.12.2006. The treating Doctor then asked the First Complainant to come to his clinic for removal of ERCP stent on the following day at about 11.30 a.m. along with the Patient. Accordingly, on 29.12.2006 the First Complainant took the Patient to the treating Doctor at about 11.00 a.m. where an amount of ₹7500/- was paid as advance and the remaining amount was to be deposited after completion of the procedure. On his request, the First Complainant was allowed to accompany his mother to the operation theatre. The treating Doctor started the procedure by inserting the side viewing endoscope and made futile attempts to remove the stent but the procedure was not successful. After 15 minutes the treating Doctor declared that the stent had slipped from the original position and it would take 2 to 3 hours to remove the same and as he had other appointments, it was not possible for him to devote 2 to 3 hours for removal of the stent and left the operation midway by handing over the endoscope to Dr. Arun Prasad (the second Opposite Party) who was standing beside him. Dr. Arun Prasad also made futile attempts to remove the stent and after 10 to 15 minutes the First Complainant again approached the treating Doctor and requested him to complete the procedure, but the treating Doctor asked him to come on 01.01.2007 for the same or to take the Patient to a higher centre. As the First Complainant lost his faith in the treating Doctor because of his highly unprofessional attitude he sought refund of his deposited amount which was refunded after deducting a sum of ₹2200/-. The first Complainant then requested Dr. Arun Prasad to provide an ambulance to take the patient to home but Dr. Arun Prasad refused the same after telling him that the driver was not available and he should arrange his own vehicle. Left high and dry, the First Complainant took the Patient to ESI Hospital, Ramdarbar where he was employed and kept her there in emergency and from there took her to Jaipur by road on 31.12.2006 where at Pandya Hospital & Research Centre the CBD stent was removed within ½ hour without any formal preparation. On removal of the stent, it was found to be broken. Alleging deficiency in service, the Complainants approached the District Forum seeking directions to the Opposite Parties to refund a sum of ₹2200/- along with interest @ rate applicable till the date of refund; to pay a sum of ₹10,00,000/- towards compensation for physical harassment and mental agony; ₹2,00,000/- towards deterrent damages and ₹50,000/- towards costs.
4. The Complaint was contested by the treating Doctor, by Dr. Arun Prasad and the Hospital and a common Reply was filed. The Fourth Opposite Party (hereinafter referred to as "as the Insurance Company") also filed their Written Version.
5. In their common reply, it was averred by the treating Doctor, by Dr. Arun Prasad and the Hospital that the Complainant was seen by the treating Doctor on 26.12.2006 and he advised UGI Endoscopy & MRCP to confirm the cause of abdominal pain. However, the Complainants got MRCP done but refused to get UGI Endoscopy done. It was averred that if the UGI endoscopy had been done then it would have been found out that the lower portion of stent which was present in duodenum had already broken and migrated proximally; the treating Doctor had diagnosed the retained stent as the cause of pain on 26.12.2006 and UGI endoscopy was advised to rule out other causes like ulcer, gastritis, cancer etc.; the method of appointment for a procedure like ERCP stent removal was very proper and was not done without advance deposit of ₹1000/-; it was denied that the treating Doctor advised injection vitamin K; only ₹7500/- was deposited in advance instead of ₹10,000/- which was the normal charge for therapeutic ERCP; no Sphincterotomy or other preparation was needed in the situation if the stent was in its proper place and proximal migration of a biliary stent was an uncommon event and once proximal migration had occurred the stent retrieval could have a formidable problem and since stent had migrated, there was possibility of doing Sphincterotomy and rarely even surgery. It was pleaded that it was decided to perform the procedure with full preparation i.e. after three days of giving injection of Vitamin K and on this procedure being prescribed, the first Complainant became agitated and since his attitude was abusive, he was removed from the scene by the staff of the treating Doctor and it was denied that there was any negligence on the part of Opposite Parties.
6. The Insurance Company also filed its Reply stating therein that the Complainant has nowhere alleged in the Complaint that there was negligence on the part of the treating Doctor in discharge of his professional duties and under the terms and conditions of the policy, the Insurance Company was only to indemnify the doctor/insured only when there is negligence on the part of the treating Doctor. The only allegations are with regard to professional ethics and the same are not covered under the terms and conditions of the policy. It was stated that the Complainant had failed to state that the treatment given was not as per medical norms and, therefore, the allegations made in the Complaint was totally vague, and as such the Complaint is liable to be dismissed with costs.
7. The District Forum holding that there was no deficiency of service on the part of the Opposite Parties dismissed the Complaint, observing as follows:-
"With regard to the medical care, law on the subject is settled and the Hon'ble Apex Court has observed that so far as persons engaged in the medical profession are concerned, it may be stated that every person, who enters into profession undertakes to bring to the exercise of it, a reasonable degree of care and skill. It is true that a doctor or a surgeon does not undertake that he will positively cure a patient nor does he undertake to use the highest possible degree of skill, as there may be persons more learned and skilled than himself, but he definitely undertakes to use a fair, reasonable degree of care and skill is expected from doctors. This reasonable degree of care and skill covers the liability of a doctor in respect of his liability to warn the patients of the risk inherent in the treatment and his liability in respect of the treatment.
In this case, we relied upon the authoritative judgment of the Hon'ble Supreme Court of India in the case titled as "Consumer Unity and Trust Versus C.M.D.", reported in 1991 Vol. (1) CPJ 1 SC, wherein it has been held that where there is no deficiency of service or negligence on the part of the Opposite Parties, then any loss etc., which is caused to the consumer the Opposite Party cannot be held liable for the same.
So under the facts and circumstances placed before us and settled position of law enunciated above, we are also in juxtaposition of the above benchmark settled by the Hon'ble Apex Court and inclined not to deviate from the same. Therefore, we can safely conclude that the complaint merits dismissal as there is no deficiency on the part of Opposite Parties."
8. Aggrieved by the said order, Complainants preferred an Appeal before the State Commission which allowed the same and set aside the order of the District Forum observing thus:-
"Annexure A-9 report dated 29.12.2006 suggests that some other tests were also got done. Report annexure A-10 of Pandya Hospital & Research Centre P. Ltd. dated 31.12.2006 suggests regarding endoscopic findings under the heading 'duodenum', half stent seen inside the CBD, while remaining half not seen, after slight widening of sphincterotomy stent removed with great difficulty. Thus, stent was removed after widening ampulla which was broken one. This stent which is of plastic could not have been broken within two days i.e. before removal by Pandya Hospital, Jaipur. It means that the stent was broken by respondent No. 1 while attempting to remove the stent with endoscopy. Instead of removing it the stent was broken and it slipped further and went inside the CBD.
Respondent No. 1 had attempted ERCP procedure for removal of stent which had complications in about 8 percent cases and death rate is one percent. Therefore, proper arrangement should have been made for anesthetic assistance and further making proper arrangement for operation. A perusal of medical journal, (Annexure C-2 which is at page 22 of the Appeal file) by William R. Bruggee, MD, Director, Gastrointestinal Endosocopy Unit, Massachusetts General Hospital shows that ERCP (Endoscopic Retrograde Cholangiopancreatography) had been used for examination of the pancreatiocobiliary region for more than 30 years. It is further stated in it that it is associated with significant complications including pancreatitis, bleeding, perforation, infection and cardiopulmonary depression from conscious sedation. It is next stated that overall complication rate after sphincterotomy is around 50%; 60%, 20% moderate and 20% severe. The death rate with sphincterotomy is about one percent. Annexure C-3 further states that retrograde endoscopic catheterization is one of the methods to have access to the biliary systems. It is further stated that PT and PTT should be within the institutional limits i.e. coagulation status. In annexure C-8, PT and PTI reports have been mentioned as PT-14 per second and PTI 100%. The lab technician Vijay James on the back of test slip reported that these tests were done from the kit provided by appellant No. 1 and these reports were made available on 23.11.2006 but were not entered in the register. A ring of truth is attached to the report. It does not appear to be made afterwards.
If these reports were not available as alleged by respondent No. 1 then respondent No. 1 would not have not done endoscopy. It is a matter of caution that ERCP should not be conducted on a patient unless advance arrangement for operation had been made and surgical consultant is kept ready. Without completing the process, respondent No. 1 left the procedure midway as he was unsuccessful in the removal of stent by endoscopy because it was broken and slipped away in the CBD i.e. due to lack of anesthetic assistance and proper preparation of theatre which amounted to medical negligence on the part of respondent No. 1. Therefore, he had failed to take proper caution before attempting life threatening ERCP stent removing. It is highly unprofessional that he left the stent procedure midway handing over to respondent No. 2 who is not qualified to do an ERCP. He was a child specialist and further there was no proper arrangement for operation. This again suggests that respondent No. 1 was negligent. He did not even taken proper care after procedure and failed to provide his van by stating that the driver was not available. He even did not mention in the report that the stent had been broken during his attempt to remove it. However, there is no medical negligence on the part of respondent No. 2 because he did not attempt life threatening procedure and did nothing afterwards.
If it is presumed that PT and PTI test reports were not there with the file then it is not clear why OP No. 1 attempted ERCP procedure. Respondent No. 1 further acted in unprofessional manner in as much as after having failed to remove the stent, he did not refund the whole amount and deducted ₹2200/- as charges for removal of stent. It is unlike a professional man. Thus, negligence on the part of respondent No. 1 is writ large on the face of it. Therefore, we hold that respondent No. 1 acted negligently and in an unprofessional manner in removal of stent by ERCP produce and further made it to slip in the CBD after breaking it.
Respondent No. 1 is insured with New India Assurance Company vide policy annexure R-1 which was valid from 27.1.2006 to 28.1.2007 i.e. was valid at the time of operation and respondent No. 1 was insured for ₹5 lacs. Therefore, respondent No. 4 is liable to pay the amount.
Hence, appeal is accepted with costs of ₹5000/- and appellants No. 1 & 2 are awarded compensation of ₹2 lakhs against respondent No. 1, 3 & 4 and since respondent No. 1 was insured, so respondent No. 4 is liable to make good the loss. If the amount is not paid within one month, then it will carry interest @ 9% p.a. till payment."
9. Heard at length.
10. The facts not in dispute are that the Patient underwent surgery for drainage of bile from gall bladder to intestine as the Common Bile Duct (CBD) was stenosed (narrowed) for which the stent was placed in the CBD. After two years of the placement of the stent , the Patient had severe abdominal pain for which she underwent various investigations and consulted the treating Doctor, who is arrayed as the second Petitioner herein on 26.12.2006. The treating Doctor after thorough examination came to the conclusion that the abdominal pain was because of the stent placed earlier for which ERCP ought to be done. The Patient was advised that the stent placed ought to be removed by ERCP on 29.12.2006. It is the case of the treating Doctor that for routine ERCP stent removal anesthetics are not involved nor is general anesthesia used though the operation theatre where ERCP is performed is always fully equipped with oxygen and cardiac monitors & ventilators which may be needed for any complication arising out of conscious sedition. It is the case of the Petitioners that the treating Doctor is competent to resuscitate any patient should any complication arise while performing the routine ERCP stent removal procedure. It is also pertinent to mention that Sphincterotomy carries higher risk and for which the patient had to be prepared. In this case during ERCP procedure, it was found that the stent which was placed in CBD, had shifted with the small portion hanging in the duodenum. It is the Petitioners case that all stents have two parts, the duodenal part which hanged in the duodenum and the biliary part which stays in CBD. These stents are meant to be placed temporarily in CBD for a period of 3 to 6 months or less. This stent was left in place for more than two years and hence there was disintegration of lower duodenum end and there was migration. Learned counsel submitted that since the Patient has already issued the report of the procedure done at the Hospital it is expected that the doctor doing the procedure at Pandya Hospital is already aware from the report that the stent is proximally migrated high up in the CBD. The fact that it is broken would be known only to the doctors who remove this stent or the doctor who initially placed the stent, the treating Doctor would know which type of stent has been used namely, with flaps or pigtail. It was submitted that once the report is available of proximal migration of biliary stent proper preparation would have been taken to tackle the same irrespective of the Complainants perspective on the issue. It was submitted that any senior GI Endoscopist with experience would know the difference between the routine stent exchange/ retrieval and proximally migrated stent retrieval.
11. Learned counsel appearing for the Petitioners vehemently argued that the State Commission had erred in assuming that the plastic stent could not have been broken while the treating Doctor was attempting to remove the stent with endoscopy, the same was broken and slipped further and went inside the CBD. Learned counsel also contended that while performing endoscopy the treating Doctor and Dr. Arun Prasad did not find lower part of the stent hanging in the duodenum as it normally should be, but instead they found the stent high up in the CBD, which fact is clear by looking at the photograph of the fluoroscopy done on the date of the procedure i.e. 29.12.2006; the issue of the breaking stent was not raised by the Complainant in the original Complaint and has been added as an after thought to better his case; that the first Complainant was in the operation theatre and he being a senior doctor was fully aware that the treating Doctor and the second Opposite Party did not see the stent endoscopically and only the image could be seen in the fluoroscopy, high up in the CBD; The very reason for postponing the procedure on 29.12.2006 was that after proper analysis and preparation for the operation the same could be taken up as the stent was not found in its place; that the State Commission had arrived at a finding only based on a medical journal and failed to appreciate that the procedure adopted namely, ERCP was being performed for the removal of the stent and not for Sphincterotomy; that both are different procedures and it was suggested to the Patient to come after three days so that the procedure Sphincterotomy could be performed after proper preparation; that the treating Doctor never left the procedure midway and the State Commission had wrongly concluded that the treating Doctor had left the procedure as he was unsuccessful in the removal of stent by endoscopy because it was broken and slipped away in the CBD, due to lack of anesthetic assistance; that ERCP stent removal process is not at all a life threatening procedure and it can be carried out under slight sedation and there is no need to carry out under anesthesia; the complications of ERCP stent removal are not very high and the literature is with respect to ERCP Sphincterotomy and not with regard to ERCP stent removal which is a totally different procedure and that the Hospital has state of the art operation theatre equipped with the latest cardiac monitors and ventilators.
12. Learned counsel contended that both PT & PTI tests were never done at ESIC Hospital laboratory on 23.12.2006; the annexure of the report signed by technician Mr. Vijay James and Dr. Brahmjot Kaur clearly mentioned that the kit for PT & PTI was not available in the laboratory and on the same date test PT & PTI were done on the kit provided by Dr. S.R. Meena, the result of which were not found available in the Register of the Hospital and that the results were "known" to lab technician and the report was not counter signed by the pathologist; the State Commission had failed to appreciate that the tests were never done but the false report of PT as 14 sec. and PTI as 100% were submitted to the District Forum by the Complainants only to improve their case, on the back of the annexure, received under RTI, through CPIO and signed by the pathologists, the Register of the ESIC Hospital does not show that these tests have been done in ESIC Hospital. However, despite acknowledging this, the CPIO has attached another report as the separate annexure not signed by the pathologist but carrying signature of the lab technicians; the State Commission failed to appreciate that the kit of PT & PTI comes as a package of 20 tests only and not for individual test; if the Complainants had purchased a set of 20 kits, than some other PT & PTI tests ought to have been performed for some other patients on that day or a later date; that the Complainant forged the report of the ESI Hospital laboratory and the State Commission did not appreciate that in the reply submitted by the Appellate Authority under RTI, it is mentioned that the first Complainant then wrote a letter dated 25.07.2007 to the Medical Superintendent, ESIC Hospital and CPIO, which was received by them on 01.08.200, in which he had asked for 'verification' of the fabricated report under dispute by submitting an attested photocopy of the altered report (photocopy was attested by Dr. Sheenu Jain also of ESIC Hospital); the reverse of the said photocopy was attested by the same doctor whereas the report provided by CPIO in the reply under RTI attested by Mr. Prakash Chand, Joint Director (Administration), ESIC and CPIO does not contain this attestation by Dr. Sheenu Jain, but is verified by Mr. Vijay James on the reverse of the report; that it is not understood as to how the verification of another document was done by Mr. Vijay James and attested by Mr. Prakash Chand when the documents submitted by the Complainants was attested by Dr. Sheenu Jain. Learned counsel submitted that this clearly demonstrate that there was a collusion. It was averred that no laboratory technician can physically keep photocopy records of all the tests done by him for eight months so inference is that this has been provided to him by the Complainants at a later date as this was not recorded in the Hospital's register. He vehemently contended that if the tests have been done properly on the kit provided by the Complainant there is no reason as to why the report written on the ESIC laboratory report form giving the impression that PT & PTI values mentioned were official ESIC Hospital report, whereas ESIC Hospital Laboratory does not have the kit to conduct the tests. The laboratory in charge pathologist has no knowledge of the said privately conducted test of PT & PTI whereas all laboratory tests are supposed to have been done under the pathologist's supervision and signed by the pathologist.
13. It is the case of the treating Doctor that for endoscopic stent removal of normally placed CBD stent the report of PT & PTI is not necessary and is only if one plans to have Sphincterotomy that PT & PTI tests are necessary. If Sphincterotomy, that is cutting open of lower end of CBD, had been performed without taking necessary precautions there would have been bleeding or perforation. The treating Doctor and the Hospital offered to arrange an ambulance, which was refused by the Complainants and that there was no negligence on behalf of the treating Doctor as all precautions and standard medical parlance were adopted in the treatment of the Patient.
14. The Complainant vehemently contended that in the ERCP report the treating Doctor never advised any investigation or prescribed any medicine for abdominal pain and distention or advised any further planning of the stent removal. In the cash receipt it was mentioned that fibre optic side viewing endoscopy was done in addition to stent removal ERCP procedure. When ambulance facility was requested , it was denied by Dr. Arun Prasad stating that the driver was not available, the Patient was brought in an emergency department of ESIC Hospital, where she remained hospitalized for 36 hours. From the discharge ticket it is clear that she was admitted for abdominal pain and distention and her general condition was sick, which again emphasises that the treating Doctor discharged the Patient forcefully. He argued that the Patient was taken to Pandya Hospital, Jaipur where in the year 2004 the stent was initially placed. In this Hospital the already broken stent was removed by ERCP Sphincterotomy within half an hour the ERCP report and the broken stent was handed over to the Complainants. He contended that the stent removal was completed in the Pandya Hospital, Jaipur which was left midway by the treating Doctor due to his other appointments. He further contended that the treating Doctor had given a false Affidavit that at no stage Dr. Arun Prasad had made any attempt to remove the stent whereas in the Written Arguments filed before the State Commission it was stated that both the treating Doctor and Dr. Arun Prasad had done procedure and taken the decision; that it was stated in the Affidavit that the Complainant never made any request for an ambulance, whereas in the present Revision Petition it was stated that the driver was on leave and therefore it could not be provided; that in the present Revision Petitioner the treating Doctor stated that the false report of PT & PTI was submitted in the District Forum, whereas in the District Forum there was an allegation that false report was for one test only; that there is no medical literature to support the pleading that the stent could have been broken by digestive juices; that the treating Doctor issued a wrong ERCP report of stent migration and that the report does not mention anywhere an advise of Sphincterotomy or for administering injection of Vitamin-K. The Complainant vehemently denied that the PT and PTI tests were added later by ESIC Hospital laboratory investigation. He submitted that the reports of the said test were shown to the treating Doctor on 27.12.2006 at the time of OPD consultation and therefore he had not advised the same and other blood tests before or after the procedure.
15. First we address ourselves to the first contention of the Complainant as to whether the stent had broken during the procedure adopted by the treating Doctor and if he was in knowledge of the same. A brief perusal of the Affidavit filed by the treating Doctor before the District Forum stated that the Patient was taken to the routine stent removal and deposed as follows:
"That the side viewing endoscopy was performed under local anesthesia, sedation and with other appropriate medication. On reaching the second part of duodenum it was seen that the lower part of the biliary stent which should have been seen hanging from the ampulla of vater in the duodenum was not seen. This was shown to the complainant on the monitor. This could only mean one out of two things. 1) the stent had slipped down and out of CBD totally and had gone out of the GI tract or was still present in lower intestines 2) the stent had migrated proximally high up into the biliary system probably due to damage to lower part of stent due to prolonged placement and action of digestive juices. Normally the stent which is a plastic tube is placed across the narrowed portion which in this case was lower end CBD with one part above the obstruction and the other left hanging in the intestines (duodenum). Usually the stents have different type to mechanisms which prevent migration. Either they have flaps near both ends of they have curved ends called "pigtail stents". In this case it was a pigtail stent (fact which was not known to us at the time). Opposite parties tried probing the orifice of the CBD in the duodenum (ampulla) to try and get a "feel" of the stent if it could be felt. This also was not found to be so. Using C Arm Image intensifier with endoscope kissing the ampulla the stent was located high up in CBD with lower end not showing the charachterstic "pigtail" configuration and being about 5-6 cms above the endoscope at the ampulla. At this point in view of the fact that spinchterotomy (Opening up of the ampullary orifice) would probably be needed it was decided to reschedule the patient for the procedure after doing coagulation studies (PTI0 and other proper preparation like arranging for the sterilized additional probably required accessories, anesthetic assistance and formal sterilization of OT in case a surgery would needed. If the stent was in its proper position that is the lower end was hanging in the duodenum then none of this was needed and a snare would have been used to capture it and retrieve it. As per ASGE technology Status Evaluation Report on Biliary stents it is mentioned on pg 940 of Gastrointestinal Endoscopy that "... plastic stents are easy to insert, inexpensive, easily removed ...." No spinchterotomy or other preperation would have been needed in the situation if stent was in its proper place. "proximal migration of a biliary stent is an uncommon even but its management can present a technical challenge to the therapeutic endoscopist" Gastrointestinal Endoscopy 1995, Vol 42 No. 6 Pg 513. In the same reference successful migrated stent retrieval is defined as "a procedure resulting in distal tip of the stent being left protruding into the duodenum" pg 514 and on pg 519 the authors mention "More than on procedure may be required in some cases" and that "In patients with benign strictures where stent extraction was mandatory, it may be necessary on occasion to use merventional radiology techniques of surgery..................... techniques fail". In Gastrointestinal Endoscopy 1995 Vol 41, No. 6 pg 611-612 authors reported a difficult proximally migrated stent removal with multiple ERCPs and finally a combined radiological and endoscopic approach. They clearly state "Once proximal migration has occurred stent retrieval may be a formidable problem. .....reported successful removal of stents in 73% of cases". Since our patient had a proximally migrated stent and there was a possibility of doing spinchterotomy and rarely even surgery, so it was decided to do the procedure with full preparation at a later date after 3 days of Inj Vit K. This was what made the complainant very agitated that he will have to bring her again for a second procedure."
16. From the afornoted Affidavit filed by the treating Doctor himself it is evident that the treating Doctor had considered Sphincterotomy at a later date with three days of injection of Vitamin - K. A brief perusal of the ERCP report issued by the treating Doctor does not show any advise of Sphincterotomy to be conducted. It is the main case of the Complainant that the treating Doctor conducted ERCP without proper preparation of the operation theatre and without advance arrangement of anesthetic assistance and also did not complete the Sphincterotomy and left the procedure midway making Dr. Arun Prasad, who is only a paediatrician to attempt the ERCP procedure. It is stated that the first Complainant being a doctor was present in the operation theatre and has witnessed the same. A brief perusal of para 10 of the Affidavit shows that there is a specific statement that "at no stage the OP no. 2 made any attempt to remove the stent" . In the Written arguments filed before the State Commission it is stated in para 14 that "both the treating Doctor and Dr. Arun Prasad have done the procedure and taken the decision in this case." This evidences that the second Opposite Party, who is a senior paediatric gastro entomologist has also assisted the treating Doctor. Though the medical literature does show that the proximal migration of a biliary stent is an uncommon event but its management can present a technical challenge to the therapeutic endoscopic, "Gastrointestinal Endoscopy" (1994, Vol-42 page 513), in the same reference successfully migrated stent retrieval is defined as a procedure resulting in distal tip of the stent being left protruding into the duodenum (page 514 and page 519), the authors mentioned that more than one procedure may be required in some cases. In Gastrointestinal Endoscopy, 1995 volume 41 Page No.6 page 611-612, authors reported a date of proximally migrated stent removal with multiple ERCPs and finally a combined radiological and endoscopic approach in the Affidavit filed by the treating Doctor, he relied on this medical literature which also states 'one proximal migration has occurred, stent removal may be a formidable problem reported successful removal of stent in 73% of cases'. It is the treating Doctor's case that since the Patient was diagnosed with the proximally migrated stent Sphincterotomy should possibly be done. The medical literature, itself statistically shows that successful removal of stent is in 73% of the cases. Having regard to the medical literature the ERCP report and the Affidavit filed by the treating Doctor himself, we are of the considered view that the treating Doctor ought to have explained the prognosis to the Complainant and conducted Sphincterotomy after duly preparing the Patient and the operation theatre.
17. In the MRCP report dated 26.12.2006 there is a specific finding of known case 'of papillary stenosis with stent in CBD. There is a linear filling defect seen in the CBD likely to represent stent. It is significant to mention that the ERCP report shows in the final diagnosis "Migrated stent in CBD". This report is dated 31.12.2006, done by Pandya Hospital, which is just two days subsequent to the discharge of the Patient form the Hospital. Therefore we are of the considered view that the contention of the treating Doctor that Sphincterotomy could not have been conducted for another three days is totally unsustainable. Pandya Hospital removed the broken stent within two days of the procedure conducted by the treating Doctor. It is the case of the Complainant that the ERCP is a life threatening procedure for which advance arrangement for possible operation should be made, which was not done in the instant case. Be that as it may the very ERCP report of the Pandya Hospital done within two days shows that the stent removed by Sphincterotom, whereas the ERCP report was issued by the treating Doctor only stated that there was a migrated stent in CBD. For better understanding of the case the same is reproduced as hereunder:
"E.R.C.P. REPORT:
PATIENTS NAME : MRS. MANNI DEVI AGE/SEX : 60 YRS/F TREATING DR. : SELF 29.12.2006 INDICATION : FOR STENT REMOVAL (21/1 YRS OLD) PENTEX FLEXIBLE FIBREOPTIC SIDE VIEWING THERAPEUTIC ENDOSCOPE USED.
Scope passed easily under local pharyngeal anesthesia and fortwin phenargan analgesia after proper consent and preparation. Side viewing endoscopy (Duodenoscopy) done revealed normal Ampulla, no stent seen in duodenum. Under fluoroscopy stent was seen migrated highup into the CBD.
IMPRESSION : MIGRATED STENT IN CBD.
PLAN : FORMAL ERCP WITH REMOVAL STENT FROM CBD WITH PROPER PREPARATION. ENDOSCOPIST (DR NEERAJ NAGPAL) (DR. ARUN PRASAD) MBBS, MD MBBS, MD"
18. Having diagnosed that the stent had migrated into the CBD there is no advise and prognosis given by the treating Doctor with respect to the future course of action and considering the present situation of the Patient with severe abdominal pain and distension with admittedly a migrated stent there are no substantial reasons supported by any documentary evidence filed by the treating Doctor to establish that waiting of additional three days to perform the Sphincterotomy was as per standards of normal medical parlance specially keeping in view that Pandya Hospital had successfully performed the same procedure within two days and removed the broken stent thereby relieving the Patient of abdominal pain and further complications.
19. We also address ourselves to the contention of the treating Doctor that the PT & PTI reports given by the Complainants are in collusion and are fabricated. To keep it brief we are not inclined to repeat the averments made by the treating Doctor here, though the same are being taken into consideration. The information received under RTI on 27.08.2007 is being reproduced as hereunder:
"To, C.P.I.O.
(Shri Prakash Chand) ESIC Hospital Ramdarbar Chandigarh (U.T.) Subject:- Supply of information under RTI Act 2005 Sir, I am in need of following information, so kindly provide the same precisely, according to Para wise at your earliest-
1) Do all the laboratory investigation report, issued to the patients by the laboratory of ESIC Hospital Ramdarbar, Chandigarh bears the signature of pathologist?
2) If the answer of above turns to be "yes" then whey the laboratory investigation report of Smt. Manni Devi m/o Dr. S.R. Meena, Dated 23/12/2006, No 33750 was not signed by the pathologist as it bears the signature of Lab technician only and
3) why almost all the lab report of paediatrics patient available in hospital with indoor patient record are not signed by pathologist?
Fees of Rs. 15/- has been deposited in ESIC A/C No. 01 (10008604217) through Challan on dated 07/04/2008. Cash receipt of challan is Annexure A-1.
Yours faithfully Sd/-
Dr. Siya Ram Meena MBBS, M.D (Pedia) Citizen of India Address #272, Indian Express Society Sector 48-A, Chandigarh (U.T.)
20. Thereafter, Mr. Vijay James, lab technician had given information which was attested by the Joint Director (administration) ESIC Hospital as follows:
"To, The JDA ESI Model Hospital Ram Darbar, Chandigarh Ref: your letter no. 172/U 8(i) -12/15/08/07 ESIH dated 8/8/07 Respected Sir, In reference to your above mentioned letter, it is clarified that:-
The test of PT/PTI was done by me on dated 23.12.06 by the kit provided by Dr. S. R. Meena.
As the kit was provided by Dr. S. R. Meena and it was not available in the lab so it was not entered in the consumption register.
Yes, I have the record of patient Smt. Manni Devi dated 23.12.06 in the form of photostat.
I am enclosing the record, which I have with this letter.
Thanking you, Date: 8/8/07 Yours faithfully Sd/- (Vijay James) Lab. Tech"
21. It is pertinent to note that this information was given with the annexed reports of the Patient with respect to LFT, Haematology, Renal Function Test, Serology, PT & PTI tests results PT- 14 sec. and PTI 100% was recorded and the report was attested and verified by Mr. Vijay James Lab technician stating that the test was done by him from the kit provided by the Complainants. When the treating Doctor sought for information under RTI Mr. Prakash Chand, Joint Director (Administration), ESIC had given the following information:
"To Dr. Neeraj Nagpal House No. 1184 Sector: 21B Chandigarh SUB: Right to Information under RTI Act, 2005 Sir, Please refer to your letter No. nil dated 17/07/07 on the subject cited above.
In this regard, I am to furnish the information as requested in your letter referred to above.
Para No. 1 & 2: Lab Investigation of Smt. Manni Devi was done on 23/12/2006 as per entry in Hematology Investigation Register (Sr. No. 11 Page 37) and Bio-chemistry Investigation Register (Sr. No. 11 Page 91) and Sample Collection Register (Sr. No. 1 Page 191). Investigation of PT and PTI was not done because of non-availability of it in Lab and appropriate remarks were shown in the report. A certified copy of the report is send herewith.
Para 3: On the same date i.e. 23/12/2006 the test PT and PTI was done on the kit provided by Dr. S. K. Meena, Splts. Grade - I. The results of PT and PTI were not found recorded in the register of this hospital. However, the results of PT and PTI were known to Lab Technician. A photocopy of the report which was procured and is sent herewith duly certified.
Para 4: The case has already been sent to Hqrs. Office for conducting inquiry.
Para 5: Certified copies of the in-patient records are sent herewith Yours faithfully Sd/- (PRAKASH CHAND) JT. DIRECTOR (ADMN.) Central Public Information Officer Encl: As above"
Additionally, Dr. Bableen Sabharwal, (IMO II Lab) has also certified once again attested by the Joint Director (Adminstration) as follows:
"To Sh. Prakash Chand Joint Director ESIC Hospital, Ram Darbar, Chandigarh Sir, This is with response to your letter IDNO.-44 dated 21.4.2008, where you have asked for my comments, I want to specify that I was on leave on the day of particular case (23.12.2006) therefore, my submission for this case in capacity of IMO posted in the lab is as under:
There is no permanent pathologist in our hospital, only part time pathologist provides his/her service. In case of non-availability of pathologists at the time of signing of the report, the reports are signed either by the IMO posted in lab or the regular lab technician. Inspite o four best efforts, some of the reports which are issued directly to the patients in OPD timings and those which are issued in emergency time are without the signatures of pathologist/IMO-IC/regular technician and bear the sign of duty technician only.
In answer to this, I want to specify again that on the date of the case i.e. 23.12.2006, I was on leave and Mr. Vijay James was the only regular person in lab. As statedby him, the part-time pathologist was not available at the of signing of reports (Enclosure attached) and IMO In-charge i.e. me was on leave. Hence, the report issued on this particular date i.e. report of Smt. Manni Devi, M/o Dr. S. R. Meena dated 23.12.2006 bears the sign of our regular lab technician (Mr. Vijay James) only.
Reply to this point is same as stated in para No. 1 of this letter. This is being issued with approval of the MS.
Date: 5/5/08 Yours faithfully Sd/-
Dr. Bableen Sabharwal (IMO II Lab)
22. It is evident from the aforenoted information given by the Joint Director (Administration) of ESIC Hospital, which is a government hospital, that the lab investigations on the Patient was done on 23.12.2006 as per the entry in Haematology investigation register and bio chemistry investigation register. It was also stated that on 23.12.2006 the PT & PTI was done on a kit provided by the Complainants and though the results were not found on the records, the results were known to the lab technician and the photocopy of the report was procured and seen and duly certified. It is relevant to note that the photocopy of the lab technician report was also duly certified by the Hospital. Additionally, it was clearly stated by Dr. Bableen Sabhrawal in the enquiry report given to the Joint Director that the report was issued on 23.12.2006 and the signature of the regular lab technician Mr. Vijay James appears only and therefore it can be safely construed that this report of PT & PTI are indeed genuine. Even otherwise for arguments sake, these pre investigative tests are ought to have been advised by the treating Doctor are not evidenced in the treatment record. A perusal of the OPD prescription does not show that any such pre-investigative tests were performed. It further evidences that the tests were shown to the treating Doctor on 26.12.2006 at the time of OPD consultation. We have examined the information received by both the parties under RTI and the noting of the lab technician who has done the tests on the reverse side of the lab proforma and also the Affidavit of the doctor who have prescribed the tests, we are satisfied that the tests were indeed done in the ESIC Hospital on 23.10.2006. Be that as it may, if the contention of the treating Doctor that these tests were not available at the time of the procedure than it is not understood as to why the same were not prescribed or advised prior to the procedure being admitted.
23. The other contention of the Revision Petitioner is that the Complainant never even requested for an ambulance. The same has been stated in the Affidavit filed by the treating Doctor that the 'ambulance was never asked for or refused because if their driver was not available on a particular date, the ambulance of a charitable diagnostic centre nearby are used for the patients'. But in the grounds of the Revision Petition it has been stated that the driver was on leave and was not available and that they had offered to the Complainant that requisites steps would be taken to arrange the ambulance but the Complainant had refused. Both the statements are contradictory. Having held that the treating Doctor was negligent in not taking effective steps as per standards of normal medical parlance to remove the proximally migrated stent, which was found to be broken by the Pandya Hospital, we are not inclined to go into the issue whether ambulance was offered or not.
24. For all the aforenoted reasons, we see no illegality or infirmity in the order of the State Commission, which has only directed a reasonable compensation of ₹2,00,000/- to be paid, as the same was covered by the indemnity policy given by the Insurance Company to exercise our limited revisional jurisdiction as envisaged by the Hon'ble Supreme court in Rubi Chandra Dutta Vs. United India Insurance Co. Ltd. 2011 (11) SCC 269. This Revision Petition fails and is accordingly dismissed.
......................J R.K. AGRAWAL PRESIDENT ...................... M. SHREESHA MEMBER