DR. HARI RAM GUPTA & ANR. vs ASHOK KUMAR RAWAT & ORS.

This common order will decide three revision petitions filed against the impugned order dated 1.0.04.2014 passed by the State Commission, Rajasthan in the Appeal 870/2012 and cross appeal 871/2012. For the convenience, the parties herein are, hereafter referred to as per their positions in original complaint before the District Forum, as Dr. B. K. Saini (OP-1), Dr. Hari Ram Gupta (OP-2) and National Insurance Company (OP-3).

The wife of the Complainant Smt. Pratibha Rawat (herein referred as a "Patient") was operated upon for cholecystectomy on 21.12.2008 by Dr. Hariram Gupta (OP-2) at Darshan Hospital, Alwar, which is owned by Dr. B. K. Saini (OP-1). After 2 days, patient complained of abdominal pain, Ultra-sonography (USG) study revealed accumulation of fluid in the abdominal cavity. Hence, on 23.12.2008 she was again operated by OP-2 and found that fluid was oozing from liver and bed of gall bladder. After cleaning, placed the drain tubes and abdomen was closed. Thereafter, the patient was discharged on 01.01.2009. The OP-2 was again on 06.01.2009 telephonically informed by complainant about the acute abdomen pain, OP-2 advised to take some pain killers and the patient was called to hospital the next day. On 07.01.2009 various tests and CT, USG scan were done and the patient was advised ERCP (Endoscopy Rotograde Cholangio Pancreatography) test from Jaipur. The ERCP test conducted at Pandaya Hospital, Jaipur on 09.01.2009, revealed completely cutoff of common bile duct (CBD).Thereafter, on 02.03.2009 the patient underwent Roux-en-Y Bilateral Hepatico-jejunostomy at Sir Ganga Ram Hospital at New Delhi, thereafter she became completely cured. Hence, alleging medical negligence on both the OPs, the Complainant filed a consumer complaint No 516/2009 before the District Forum, Alwar, prayed for compensation.

The District Forum after considering the facts and evidence placed on record exonerated Dr. B. K. Saini (OP-1) from any liability, but held that Dr. Hari Ram Gupta (OP-2) liable for medical negligence and by its order on 5/6/2012 directed the OP-2 and OP-3 the insurance company to pay jointly and severally, a sum of Rs.5,00,000/- as compensation to the complainant.

Challenging the order of the District Forum, First Appeal No.870/2012 was jointly filed by Dr. Hari Ram Gupta (OP-2) and the Insurance Company (OP-3), whereas the Complainant filed First Appeal No. 871/2012 for enhancement of the award.

The State Commission dismissed both the appeals, with modification of order of District Forum by reducing the compensation from Rs.5 lacs to Rs.3.5 lacs, and directed the OP-1 Dr. B. K. Saini and OP-2 Dr. Hari Ram Gupta to pay it in equal share. Also, directed the Insurance Company (OP-3) to indemnify OP-2.

Aggrieved by the order of State Commission, three separate revision petitions are filed in this commission (as detailed in title clause herein).

We have heard the learned counsel for the parties. The learned counsel Dr. Susheel Kumar Gupta appearing on behalf of OP-2 and OP-3, admitted that there was injury to the common bile duct (CBD) which has inherent complications of such mini laparoscopic operation which was performed by OP-2. Hence, it was no medical negligence. After operations on 21 st and 23 rd Dec 2008, the patient was stable, whereas, only on 07.01.2009 OP-2 suspected bile duct injury, and advised for ERCP test at Jaipur which was not available at Alwar. The Counsel further submitted that the OP-2 did not charge any fees for operation from the Complainant because the Complainant was the brother-in-law of Mr. Prem Patel who worked as a male nurse under OP- The learned counsel Mr. Pushpinder Singh for Dr. B. K. Saini OP-1, owner of Darshan Hospital stated that, he did not call Dr. Hari Ram Gupta for operation. Post operative care was given at the hospital from 21.12.2008 to 01.01.2009. Mr. Prem Patel was an employee of medical department; therefore, he did not charge anything from him for the hospitalization. The Insurance Company, the OP-3 also denied any negligence on the part of OP-2.

To know about various causes of bile duct injury during Laparoscopic Cholecystectomy we have perused the medical literature from research articles and Surgical books on laparoscopic cholecystectomy. It revealed that, incidence of bile duct injury may be around 0.1-0.2%, it may be due to inaccurate placement of clips or sutures, cystic duct mistaken for bile duct, difficulty in dissection of chronic Cholecystitis. In this case, the ERCP report (09.01.2009) of Pandaya Hospital & Research Centre States, "Bile Duct-completely cut off at the level of mid CBD cum....not going....the block. Clip seen in the line of CBD". Thus, ERCP report, clearly revealed bile duct injury was caused due to misplacement of clip, and clip extended to bile duct. The subsequent MRI report dated 13.02.2009 of Sir Ganga Ram Hospital confirmed about the injury to CBD, and there was biliary fistula and inflammation of the biliary passage.

It is pertinent to note that, at first instance, on 23.12.2008, the OP-2 did not diagnose bile duct injury and did do further surgical exploration to find out cause of biliary leak, but OP-2 simply advised ERCP on 07.01.2009 , i.e. after 15 days of operation. Thus, it was an act of omission, i.e. negligence. No doubt, medical literature produced by the OP-2 revealed that, the bile duct injuries are common; several studies show that 15% of the injuries are recognized at the time of operation and 85% post operatively, 97% of injuries are caused due to visual perceptual illusions and 3% due to technical skills. The operative and histopathological findings confirmed about the chronic Cholecystitis and due to adhesions, OP-2 expressed difficulty during resection of gall bladder adhesions. We are of considered view that, the OP-2 should have been more cautious during that surgery. Therefore, it was a mistake, a lack of care by which the CBD was mistaken for cystic duct. Furthermore, there was failure of duty of care and deficiency in service, because the medical records clearly establish that, there was delay i.e. OP-2 failed to diagnose the post operative complications. In Halsbury''s Laws of England the degree of skill and care required by a medical

practitioner is stated as follows : "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 operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.

Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care."

(emphasis supplied) 1. Further the Hon''ble Supreme Court in Jacob Mathew V State of Punjab & Anr, (2005) 6 SSC

1= III (2005) CPJ 9 (SC) had concluded that,

" a professional may be held liable on one of two findings : either he was not possessed of requisite skill which he professed to have possessed, or, he did not exercise reasonable competence in given case, the skill which he did possess."

In this present case, in our view, even though OP-2 was skilled, but failed to take reasonable care and failed to act with reasonable skill.

Further, we do not accept the contention that nothing was charged from the patient as Prem Patel was known to OP-2., also there is no evidence that he was known to OP-1 i.e. owner of the hospital. In our country, medical practice is rampantly commercialized, it is a common practice that most of private hospitals/doctors do not issue receipts of payment for the reasons best known to them. Therefore, it is unbelievable that the patient was operated and hospitalized for 10-12 days'', free of cost. He must have spent some money for basic hospital service, medicines etc. Therefore, the hospital is vicariously liable.

The complainant filed revision petition No. 268/2015 for enhancement of compensation. There is unacceptable delay of 198 days'' in filing this revision. We are of considered view that the complainant does not deserve any enhancement of compensation, because the State Commission awarded compensation, after proper consideration of facts and evidence. It is just and proper compensation.

Accordingly, we dismiss all three revision petitions. The parties are directed to bear their own costs.