DHANWATI KUMAR vs S.K. JHUNJHUNWALA

THIS is a complaint under Section 12 of the C.P. Act, 1986 filed by Smt. Dhanwati Kumar (hereinafter referred to as the petitioner) against Dr. S.K. Jhunjhunwala and the Life Line Diagnostic Centre (to be referred to as the O.Ps.) claiming an award for a total sum of Rs. 15 lakhs on various counts as detailed in paragraph 43 of the complaint. Her case is as follows.

THE petitioner is an educated housewife since June, 1996. She had been suffering from severe pain in her abdomen and having found the treatment given by some local doctors of no use approached one Dr. Lakshmi Basu who after getting several tests as done and seeing all such reports opined that the petitioner had two small stones in her Gall Bladder and she (Dr. Lakshmi Basu) advised to consult a specialist for removal of the said stones. Dr. Basu also advised operation by laparoscopic process which would remove the stones more easily. The petitioner then contacted the O.P. 1, Dr. Jhunjhunwala, who was an experienced and reputed surgeon having various degrees from abroad and was attached to a number of reputed Hospitals and Nursing Homes including Life Line Nursing Home. The O.P. 1 after examining the petitioner and going through all the reports advised her to contact the Life Line Nursing Home, that is, the O.P. 2. Accordingly she did so and that Nursing Home fixed 8.8.1996 as the date for holding the operation of her Gall Bladder. On that date at about 2 p.m. she was taken to the operation theatre in that Nursing Home, while her husband, parents, children, relatives etc. were anxiously waiting outside. But some time after, the O.P. 1 came out of the operation theatre and to the utter surprise of everybody there told that he had failed to remove the stones from the Gall Bladder by conducting laparoscopic process and removed the Gall Bladder itself by restorting to the conventional open surgery method. Thus the O.P. 1 violated all the rules and norms of medical jurisprudence by removing such a vital organ of the human body by opening the abdomen without taking consent either from the petitioner or from her husband or from the parents present there and was thus guilty of illegal act and gross negligence in duty. Secondly, the O.P. 1 at the request of the relatives of the petitioner showed the operated and chopped off Gall Bladder to them who to their surprise and astonishment found no trace of any stone in the said Gall Bladder nor any stone alleged to be removed by the O.P. 1 was shown to them. Thus, though the Gall Bladder was removed, the stones were not. After the operation there were eighteen stitches on her abdomen of which the upper four stitches are still in bad form having not healed up even after using all medicines. Normally in case of an open surgery like this 5/6 stitches are required and such a large number of stitches itself shows that the O.Ps. were careless. Thereafter in February, 1997 the petitioner had an attack of Jaundice, when she again went to the O.P. 1 who after examining her took the matter very casually and after seeing the ultrasonography report opined that there was some infection and there was nothing to worry and referred her to Dr. Mahesh Goenka, but in spite of her repeated requests he did not divulge the reason of the said illness. But the petitioner went on experiencing various problems relating to her stomach and she consulted Dr. S. Banerjee who after examining her and perusing all the reports advised her to get fresh ultrasonographic report from Salt Lake Ultrasound Scan Centre on the ground that the reports of Bishuddhananda Hospital were not up to the mark. Then the petitioner went to the centre as advised by Dr. Banerjee and underwent another test of ultrasonography and with that fresh report she contacted Dr. Banerjee again who after studying the same told that there was a stone of 8mm. in diameter in ampula and according to Dr. Banerjee that stone was nothing but the stone that was originally formed inside the Gall Bladder and the stone had slipped away to the bile duct at the time of operation. After knowing this the petitioner again contacted the O.P. 1 and requested him to clarify the position. But the O.P. 1 this time also took the matter lightly and told the petitioner that there was nothing to worry, but failed to give any satisfactory reply for the presence of the said stones in the bile duct even after the operation and the removal of the Gall Bladder. After this the petitioner decided to undergo further medical treatment at her home town at Delhi and accordingly on 4.6.1997 she was admitted at Sri Gangaram Hospital in Delhi where ERCP was done and multiple stones in the bile duct were detected and according to the Doctors the trouble which the petitioner was feeling in her abdomen was due to the existence of these stones. Thereafter she had to undergo another operation at that Hospital and those stones were removed and thereafter she was completely cured.

These O.Ps. were guilty of negligence and failed to give proper service to the petitioner during the operation as well as the post operation period. They were in gross negligence in not taking X-ray after the first operation, because if that was done the non removal of the stone could easily be detected. As a result of such negligent treatment the petitioner suffered in various ways. During the period from August, 1996 to May, 1997 the petitioner''s daughter who was a very good student could not do well in her examinations. The petitioner''s husband, a manager of a Nationalised Bank had to move from place to place due to the laches and negligence of the O.Ps. 1 and 2. Then again the petitioner as well as the members of her family had to experience mental anxiety throughout the time of her treatment. Hence she was entitled to be compensated by the O.Ps. for all the sufferance she had undergone and she had claimed a total sum of Rs. 15,00,000/- (15 lakhs) spelling out the detailed heads in the schedule of the complaint.

THE O.P. 1 Dr. Jhunjhunwala has contested the case by filing a written objection denying therein all the material allegations of the complaint. His case is as follows. Firstly, the complaint having not been signed or verified by the complainant herself but having been signed and verified by a person stated to be her constituted attorney is bad in law and not maintainable and, what is more, the said person named Sri Pratap Kumar is not also actually the constituted attorney. Secondly, according to him there was no negligence on his part in the matter of the operation he conducted and the treatment which he rendered to the petitioner. At the time of consultation he had explained to the patient party the details of laparoscopic cholecystectomy. He also made it known to them that there might be the need for converting to the traditional method of open surgery. THE petitioner understood that. On the day on which the operation was held at about 2 p.m. he started the laparoscopic cholecystectomy but he found that the Gall Bladder was swollen, inflamed and adhesion was present and immediately this situation was disclosed to the husband of the complainant and it was stated that the laparoscopic cholecystectomy would not be possible and thereafter the conventional procedure, i.e., open cholecystectomy was undertaken after the same was intimated to the husband of the petitioner. That apart, formal consent in writing for such a change in the pattern of operation in case of an urgent need was given for the patient at the time of admission of the petitioner on 7.8.1996. THE implication was also explained at the time of consultation at the chamber and the nature of operation and the consequence thereof were discussed in detail. Next, the removed Gall Bladder with stones inside was displayed and shown to the petitioner''s husband and others. THEn according to this O.P. under the medical science stone can grow in the common bile duct (CBD) by passage of time even after cholecystectomy and in the present case admittedly the stones were detected in the CBD as alleged 9/10 months after the operation in question was held. Hence, the alleged stones in the CBD were formed long after the operation was performed and he had no laches or negligence in the matter of performing of the operation in question. According to him this false and frivolous case should be dismissed with cost. The O.P. 2, the Life Line Nursing Home has also filed a written objection denying the material allegations, while admitting that the Gall Bladder operation of the petitioner was at this Nursing Home as usual, but asserting that the doctors who performed the operation etc. were never under the control of any doctor/surgeon engaged by it. The allegation being altogether fabricated and false, should be dismissed with exemplary costs.

THUS the attack on the medical treatment or surgery is two fold. One is that no consent was taken before hand from the husband or any other relative of the patient or from the patient herself by the O.P. and the other is on the score that the Surgeon did not take suitable measures to guard against the possibility of the stones passing to the bile duct from the Gall Bladder at the time of the operation. Mr. Nayek, the learned Counsel for the petitioner has relied upon an authority namely, an article written by an expert, Rosy Kumar, published in the journal styled as Consumer Protection and Trade Practices Journal 2001, page-13. It has been enjoined therein that to be valid, the consent which is to be taken from the patient or his attendant relatives must be real and informed and consent is not valid if it is obtained without proper explanation or by fraud or misrepresentation or undue influence as to the nature of the operation procedure. As against this Mr. Sil draws our attention to the Annexure 20 (vide P-179 of the paper book). A consent-form duly filled in and signed by the husband of the petitioner wherein he has stated that the nature of the condition of the patient and also the hazards of the operation or procedure including any unwanted and untoward complication that may arise have been explained to them by the Surgeon. Then the husband of the patient has authorised inter alia the said Surgeon "to perform such additional operation as he may consider necessary or proper in the event of any emergency or if any unanticipated condition should be discovered during the course of the operation". Lastly, he has also stated that the above mentioned points have been explained to him in the language which he understands. To such a clear, express and voluntary consent having been admittedly given in the consent-form is added another piece of evidence, viz., the statement made by the petitioner in para-3 of her affidavit (vide P-56 of the paper book) to the effect that her husband on her behalf gave consent to Life Line Nursing Home for conducting Laparoscopy for removal of Gall Bladder Stone. So it is nor her case that the said consent-form is not was a genuine document or it was obtained by fraud or undue influence. If that be so, then the declaration in the said form should be taken to be free from any infirmity and should be accepted as correct in its entirety as its language clearly covers the resorting to any method of operation other than laparoscopy by the surgeons concerned in case of emergency in order to save the life of the patient. Therefore, we do not accept the contention of Mr. Nayek, the learned Counsel for the petitioner that no prior consent was taken either from the patient or from her husband. The surgeon suddenly shifted to the traditional procedure of operation in the midst of laparoscopic colecystectomy. In this connection the decision reported in IV (2003) CPJ 164, (Chandigarh State Commission) referred to by Mr. Sil is applicable that a decision which is to be taken at the spur of the moment has to be taken by the surgeon on the spot.

THIS, however, takes us to the question as to whether the O.P. 1 has been able to make out any jutifiable ground for changing the mode of operation in the midst of holding the operation. The answer is to be found in the contents of the ''operation note'' given by the O.P.1 under the heading ''Treatment Sheet'' (vide P-182 of the paper book). The relevant words written there by the O.P. 1 after the operation was over are as follows : ''Lap Chole converted into open surgery. The Gall Bladder swollen inflamed, douse and moist...''. It is very conspicuous that the petitioner has not challenged or disputed the genuineness of such statements. We are of the opinion that this is sufficient explanation for the Surgeon''s shifting to the traditional method of open surgery. Simply because there is no elaboration of the reasons and the relevant points only have been given in brief, it should not be taken that the explanation offered is insufficient. It is quite in the fitness of things that a Surgeon being obviously busy and in a hurry would economise the time by putting only the most relevant words in the way which will signify the justification for such a change. THIS conclusion is further strengthened by the fact that the O.P. 2, Dr. Rakesh Jain examined as an expert witness on behalf of the O.P. 1 has stated in his evidence that the condition of the Gall Bladder was such that Laparoscopic method was not possible to be followed. Curiously this statement remains totally unchallenged and even not a suggestion is put by way of cross-examination that such statement is wrong (vide page-15 of the paper book part II). As to the statement of the O.P.-1 regarding the facts of the stones in question it is argued by Mr. Sil that in the above mentioned ''operation note'' it has been further stated by the O.P. 1/Surgeon that the Gall Bladder and the stones were shown to the party and then sent for Histopathology, but notably, against such a statement of the concerned Surgeon there is no denial in the affidavit on evidence affirmed by the petitioner. In her complaint, however, she has stated that the chopped off Gall Bladder was shown to the relatives of the petitioner, but they found no trace of any stone alleged to be removed from her Gall Bladder. In the first place, not a single such relative has been examined by the petitioner or is coming forward to affirm any affidavit in support of a story in the complaint. Secondly, the above mentioned statement made by the Surgeon is not only a piece of documentary evidence, but also it constitutes a strong circumstantial evidence. The Surgeon was preparing this note just after completing the operation. Admittedly he showed the removed Gall Bladder to the patient party. It is not believable that he would show the same to them, if it was found that it did not contain any stone. In that event the entire incident would have taken a different complexion. The Surgeon would have halted there and given a re-thinking and the patient party also would not have left him and would have urged him to take further steps including another ultrasonographic test then and there, because such a position was diametrically opposite to and inconsistent with the previous result of ultrasonographic reports. In short, had the patient party not seen any stone in that Gall Bladder, it was most unlikely for them to remain silent and taking normal course of human conduct into account, under such a peculiar situation they would have raised a hue and cry putting a question to the Surgeon a to how it was that when ultrasonographic tests had clearly revealed the existence of stones in the Gall Bladder of the patient, not a single such stone was found there. The doctor also in such an exigency could not be satisfied and must have adopted appropriate measures to explain away such discrepancy between the result of ultrasonographic tests and the reality. So, such a stand taken by the petitioner is unbelievable and militates against the preponderance of probability. THIS means that the case of the petitioner that her relatives were shown an empty Gall Bladder devoid of any stone is not found true. On the contrary the report of the surgeon (O.P. 1) discussed above which remains totally undisputed and unchallenged shows that the removed Gall Bladder along with the stones which had originated there were shown to the patient party and then sent for histopathological tests.

THE next question is whether it has been established from the materials on record that the stones that were removed from the Common Bile Duct of the petitioner about 8/9 months after the operation in question was held were originally formed in her Gall Bladder and they passed into the CBD at the time of the operation due to negligence of the O.P. 1. In the treatment sheet (vide P-182 of the paper book) as we have seen above, the O.P. 1 has stated that the Gall Bladder and stone were shown to the party and were sent to Histopathologist. This sentence in the certificate given by the O.P. has not been challenged or put to any question in the complaint. Only in the C.E. of the Surgeon for the first time the petitioner has put a question regarding the whereabouts of the stones. Secondly, it has been stated by the surgeon by way of pronouncing an expert-opinion that stones can be formed in the CBD and in support of such a view he has placed a number of authorities as follows : (1) Oxford Text Book of Surgery-J. Marris and R. Malt Vol.-I P- 1129; (2) Common Bile Duct Stones-S.W. Hosking; (3) Bailey and Love''s Short Practice of Surgery-Review by Charles Murtay Russle and Williams P-744. In these treaties it has been opined that stones may be formed even in the Bile Duct. In Bailey and Love''s ''Short Practice of Surgery'' the expert opinion has been given that although usually stones are formed in the Gall Bladder, sometimes they may grow in the CBD also. It has been laid down that from the nature and character of the stones it can be determined if such stones were formed in the Gall Bladder or in the CBD. If it is a bilirubinated stone, then its place of origin is the Bile Duct whereas the stone is classified as chlorostole, it is to be taken that it has originated in the Gall Bladder. But in the present case there has been no attempt from the side of the petitioner to get any such test conducted in respect of the stone that was operated out from her CBD during the second operation held at Gangaram Hospital at Delhi.

So we are to ascertain the truth from the various circumstances available on the record before us. It is the contention of the O.P. 1 that there was no scope for any stone to slip away into the CBD from the Gall Bladder at the time of operation to prevent such a possibility. The substance in such an argument is highlighted by the report of the Radiologist of the Gangaram Hospital, Delhi, where the petitioner had her second operation for removing the stones from her Bile Duct (vide P-45 of the paper book, the last line) that "Surgical clips were seen in the right upper quadrant". This report has been placed and relied upon by the petitioner herself and hence it is not at all disputed or denied to be correct. Therefore, it is clear that the O.P. 1 the concerned Surgeon took all possible care and caution to prevent slipping of any stone from the Gall Bladder to the Bile Duct. It has been the further contention of Mr. Sil that from the above authorities it can be gathered that if a stone, which has formed in the Gall Bladder, slips into the Bile Duct, it cannot increase in number and remains singular, but the ERCP report of Gangaram Hospital mentioned above shows that such stones were multiple in number, inasmuch as it says in clear language that after papillotomy the ''calculi'' were successfully extracted. The word ''calculi'' being the plural number of the word ''calculus'' means a number of stones formed in the CBD. According to Mr. Sil, this fact eliminates the possibility that during operation a stone slipped into the CBD.

FROM the facts and circumstances stated above the possibility of the stones having originated in the Bile Duct itself cannot be ruled out and it cannot be taken for certain that the stones that were found in the CBD later on were originally formed in the Gall Bladder of the petitioner and slipped into her Bile Duct as alleged by the petitioner. In this connection a decision of the Apex Court relied upon by Mr. Sil deserves mention. This is reported in 1996 (2) SCC 634, A.H. Khodwa v. State of Maharashtra. It has been held therein that Courts would be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution and that medical opinions may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the Court finds that he has attended on the patient withe due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor guilty of negligence. In the instant case, as we have seen above, the Surgeon (O.P. 1) took all possible care, caution and action for rendering proper treatment to the petitioner. He has provided in his note the justification for converting from the Laparoscopic method into the conventional open surgery procedure. In that note he has also made it clear that he found the CBD to be normal and no stone had been found there. We have also discussed above how he took prior consent from the husband of the petitioner for such a change in the procedure of operation in case of necessity. Lastly, it has also been shown above that while conducting the operation he adopted appropriate measures, giving knots to the ends of the Gall Bladder (Clipping) to guard against the possible slippage of the stones into the CBD. In such circumstances we are not prepared to see any deficiency in service on the part of the doctor (O.P. 1) or, for that matter, the O.P. 2, because as per the definition given in the C.P. Act, deficiency in service consists wilful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in the service. In this connection Mr. Sil has referred to another ruling reported in R.S. Bagga v. KLM Royal Dutch Airlines, IX (1999) SLT 311=2000 SCC 66, in which it has been held that deficiency in service has to be distinguished from the tortuous acts of the O.P. and in the absence of deficiency in service the aggrieved person may have a remedy under the common law to file a suit for damages, but cannot insist for grant of relief under the C.P. Act for the alleged acts of commission and omission attributable to the O.P. which otherwise do not amount to deficiency in service. Having regard to the entire discussion made above we are constrained to hold that the charge of negligence or deficiency in service against the O.P. 1, or for that matter, the O.P. 2 has not been substantiated from the materials on record. We see no merit in the petition of complainant and we dismiss the same on contest. However, considering the circumstances we do not pass any order as to cost. Complaint dismissed.