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1.       For the convenience the parties are placed in the respective position as in the original complaint no. 35/1997. The brief facts relevant in this first appeal are; Dr. S.R. Bhat (since deceased, hereinafter referred as "a patient") a practicing reputed dentist for about three decades, was suffering from bilateral inguinal hernia. He consulted Dr. M. R. Ramachandra Rao (OP2), a Consulting Surgeon at Manipal Northside Hospital (OP1) for the treatment of bilateral hernia. The OP2 after examination assured him, that the operation is minor one and involves no risks. Therefore, after pre-operative investigations and assessment, OP2 performed the hernia operation in the morning on 02-05-1996.   At about 1:00 PM a glass of milk was given to the patient as per the instructions of OP2, but the patient vomited number of times thereafter. Due to abdominal pain, the patient was unable to walk up to the toilet for urination, therefore, a urinary catheter was put at 11:00 PM. The patient was discharged on 04-05-1996 and he was called on 09-05-1996 for removal of sutures. After returning home the patient followed the instructions and prescription of OP2, but the patient continued to be uneasy and had severe pain at the site of surgery. This was informed to OP2, who gave telephonic instructions only, never called the patient to the hospital for further examination. On 09-05-1996, sutures were removed. The patient had mild fever on 10-05-1996. It was informed to the OP2 over phone, but no avail.  On 12-05-1996, patient experienced shooting pain in the shoulder. It was informed to OP2, but he failed to foresee the postoperative complications were setting in. Further, the patient developed gradual abdominal swelling and increase of pain from 12-05-1996 to 14-05-1996 which was informed telephonically to the OP2. He suggested continuing the same medicines. Since the pain was severe, patient was taken to OP1 hospital on 14-05-1996, consulted OP2; it was diagnosed as perforated duodenal ulcer (DU). Therefore, on the same day OP2 performed emergency Laperotomy (abdominal surgery) under general anaesthesia. No investigations like barium meal study or endoscopy were done before the operation. No gastroenterologist was consulted either before or after the laperotomy. The operation was conducted solely on the x-ray report which was not conclusive for DU. Therefore; the perforation was a doubtful diagnosis. Post operatively, patient was kept under ICU for ten days without any cogent reason. The patient developed fever and uncontrollable hiccups, there were no signs of recovery. At that stage, OP2 failed to refer the patient to super speciality hospital. On 21-05-1996, OP2 went abroad delegating his duty to Dr. V.A. Srinivas to look after the patient. The patient's condition further deteriorated and patient developed urinary retention and lung oedema. On 27-05-1996, when the things became uncontrollable, Dr. V.A. Srinivas shifted the patient to Manipal Hospital, Bangalore. There, the patient was examined by a Surgeon, Dr. M.G. Bhat.  It was diagnosed as a case of delayed recovery because of sepsis and ileus (intestinal obstruction). The patient was seriously ill, emaciated with temperature and distended abdomen. On 30-05-1996 morning, patient developed faecal discharge from the operated wound of right inguinal hernia. Therefore, Dr. M.G. Bhat performed another laparotomy, and found a large extent of infection in the abdomen. Subsequently, during course of treatment the patient suffered coma on 22-06-1996, which further led to death on 30-06-1996. Therefore, the complainants alleged that, the OP2 injured the large intestine particularly sigmoid colon during hernia operation which became fatal. It was further alleged that, OP2 failed to manage post operative complications, the OPs failed to provide requisite standard of care and skill. The hospital(OP-1) infrastructure was  inadequate. Hence, it was a deficiency in service and negligence. Therefore, complainants Smt. Kamala Bhat, Dr. Jyoti Bhat and Shri Girish filed a complaint before the Karnataka State Commission at Bangalore (hereinafter referred as State Commission) in March 1997. The complainants also filed a complaint before the Karnataka Medical Council, Bangalore.

4.       The rival argument advanced on behalf of OPs by the learned senior counsel, Ms. Kiran Suri, was that the complainants are not consumers, OP2 is not an employee of OP1, but he is only a consultant, therefore, hospital is not liable, if wrong is committed by a doctor, the hospital is well-known for high standard, hygienic and quality of services, OP2 personally knew the patient for more than three decades, the patient was a known case of hypertension and epilepsy, almost 10 years back, the OP2 had diagnosed bilateral inguinal hernia in the patient and at the same time advised him to undergo surgery, but it was ignored by the patient which caused inordinate delay. The counsel further submitted that OP2 performed bilateral inguinal hernia operation as per standard procedure, it was uneventful. It was performed after informed consent only. Patient was discharged in good condition. Therefore, there was no chance of perforation of sigmoid colon after hernia operation. There was no negligence either during surgery or in the post-operative care.

14.     We accept the plea of OP2 that, there was no flaw during treatment of perforated DU on 14-5-1996. But, as per medical literature, in our view, it was a missed diagnosis of "Hernia en glissade" (sliding Hernia). A sliding inguinal hernia is a variant in which part of a viscus (usually the colon) is adherent to the outside of the peritoneum forming the hernial sac beyond the hernial orifice. Thus, the viscus and the hernial sac, which may contain another abdominal viscus, lie within the inguinal canal. Sliding hernias are more common on the left side (where they contain part of the sigmoid colon) than on the right (where they contain part of the caecum). Sliding hernias occasionally contain part of the bladder or an ovary and ovarian tube. A sliding hernia may be indirect or direct. They are nearly always found in males. A sliding hernia should be suspected if the neck of the hernia is bulky, or if the hernial sac does not separate easily from the cord at operation.

The  incidence  of  sliding  inguinal  hernias  increases  with  the  age  of  the  patient,  being nearly  zero  before  the  age  of  30  years . After the age of 50 years the incidence of sliding hernias is 3.5 times more frequent. Sigmoid colon forms the component in left side and caecum, appendix forms the content in right side in indirect inguinal hernias and bladder forms the sliding component in direct hernia.

It is important that, during surgery care is taken not to separate the content from the sac as the posterior wall of the sac is formed by the sliding component itself and attempts to dissect it from wall results in vascular injury to the structure and end in ischemic insult of the sliding component. Pre-operative  complications  are  rare  in  sliding  hernias  as  the  main  pathology  is  abdominal weakness and neck of the sac is rarely small enough to constrict the content. Thus,  sliding  hernia  is  important  for  the  special  surgical  technique  and  care  during intra-operative  period  which  decreases  the  morbidity.  Common post-operative complications are wound infection and seroma formation.