KIRAN SINHA vs A.K. Vishwakarma And Ors.

REVISION Petition No. 306/2011 preferred by the Complainant is filed with a delay of 115 days.

FOR reasons cited in the application for condonation, the delay of 115 days is hereby condoned. These Revision Petitions, R.P. No. 3394 of 2010, preferred by the first Respondent, Dr. A.K. Vishwakarma and Revision Petition No. 306 of 2011, preferred by the Complainant, Smt. Kiran Sinha, under Section 21(b) of the Consumer Protection Act, 1986 (for short the "Act") are directed against the order of the Jharkhand State Consumer Disputes Redressal Commission, Ranchi (for short "State Commission") passed in Appeal No. 700 of 2007 dated 01.07.2010. During the pendency of the case before the District Consumer Disputes Redressal Forum, Dhanbad (for short the "District Forum") C.C. No. 74 of 2001 was transferred from District Forum, Dhanbad to District Forum, Jamtara. Vide its impugned order, the State Commission set aside the order dated 2.8.2007 of the District Forum, Jamtara, passed in C.C. No. 10 of 2006 and allowed the Appeal directing the Respondent/Dr. Vishwakarma to pay to the Appellant/Complainant an amount of 2,00,000/ - by way of compensation with interest @ 8% p.a. and costs of 10,000/ -.

THE factual matrix leading to these two Revision Petitions are that Smt. Kiran Sinha (hereinafter referred to as the ''Patient'') visited Dr. M.P. Jha (hereinafter referred to as the ''Treating Surgeon/Second Respondent) on 20.2.2001 with severe pain in her right upper abdomen coupled with vomiting and jaundice. The patient was prescribed medicines and advised certain investigations including ultrasound scan of the upper abdomen. Dr. A.K. Viswakarma (hereinafter referred to as the ''Radiologist/First Respondent'') had done the U.S.G. on 23.02.2001 and reported that the Common Bile Duct (hereinafter referred to as the ''CBD'') was dilated and measured about 0.7 cms. and that there was a shadow of stone measuring about 1.32/0.64 cms. in the lower end of the CBD. The pancreas showed normal ECO. He had given an impression that there was a stone in the CBD which was the cause of her abdominal pain and Jaundice.

BASED on this report, the Treating Surgeon advised the patient to get herself admitted in the Hospital and she was operated on 1.3.2001. The Surgeon failed to locate the said stone in the area of her CBD, but rather he found a tumor in the head of the pancreas which was 2.5 cms. in diameter. The second Respondent opined that this could be a cancerous growth and as a precautionary measure abandoned the procedure and closed the abdomen. The patient and her relatives were advised to go to a higher centre for remedial measures. Thereafter, the patient was taken to CMC Hospital, Vellore and after investigations, it was found that the bulky head on the pancreas was not malignant and that the ERCP test was normal. Her CBD, common hepatic ducts and intra hepatic ducts as per Endoscopy test report dated 16.3.2001 were normal. Thereafter, the Complainant got issued a legal notice to the Radiologist/First Respondent for giving a wrong report of the U.S.G. which resulted in an unnecessary operation.

THE patient filed C.C. No. 74 of 2001 before the District Forum, Dhanbad for a total claim amount of 4,98,368/ -. The first Respondent/Radiologist contested the claim by filing a detailed written statement and averred that based on his 35 years experience as a teacher in various medical collages in the Department of Radiology, he can safely conclude that the stone was present in the CBD and the report dated 23.2.2001 was correct.

THE District Forum vide its order dated 12.5.2004 had dismissed the Complaint, against which the Complainant preferred First Appeal No. 248 of 2004 and the State Commission set aside the order of the District Forum with the direction to decide the claim after calling for the original USG film from C.M.C. Vellore. The matter was remanded to the District Forum and it was decided afresh. The Treating Surgeon was also added as a Second Respondent on 28.3.2005. The Treating Surgeon filed his detailed reply stating that there was no negligence on his behalf as he had operated on the patient only on the basis of the USG Report given by the Radiologist. Thereafter, an expert opinion was sought for and the Forum had got two films dated 23.2.2001 and 12.3.2001 of Smt. Kiran Sinha, examined by Dr. S.S. Rao, MD consultant Radiologist and also by Dr. C.N. Sahoo, HOD Surgery, Bokaro General Hospital. The District Forum based on the evidence adduced, concluded that there was no negligence on behalf of either of the doctors and dismissed the Complaint.

THE State Commission in the Appeal preferred by the Complainant allowed the Appeal and set aside the order of the District Forum and directed the First Respondent/Radiologist to pay 2,00,000/ - by way of compensation with interest @8% p.a. and cost of 10,000/ -.

AGGRIEVED by this order, the First Respondent/Radiologist as well as the Complainant had preferred these Revision Petitions. The learned counsel representing the Radiologist submitted that the Doctor had expired on 17.7.2011 and his LRs were brought on record vide order dated 14.10.2011 of this Commission. The counsel contended that the stone was present at the time of taking of the USG on 23.02.2001 but in all possibility had passed out by 1.3.2001, by the date of the operation. He further contended that it is only because of the stone which had slipped into the adhesions of pancreas that the lump had been caused on the pancreas which was seen in the subsequent reports.

THE brief points that fall for consideration are whether: "(a) the stone which was present in the Common Bile Duct as per the USG done on 23.3.2001, could have exited out;

(b) if the USG taken could explicitly detect the shadow/lump on the pancreas;

(c) whether the experts'' opinion was taken into consideration by the State Commission;"

FIRSTLY , we address ourselves to the issue as to whether the stone in the Common Bile Duct measuring 1.32 cms. X 0.64 cms. could have exited out between 23.3.2001 and 1.3.2001. The Literature on Diagnostic Ultrasound, Third Edition by Carol M. Rumack, M.D., Professor of Radiology and Pediatrics; Stephanie R. Wilson, M.D., Professor of Medical Imaging and Obstetrics and Gynecology; J. William Charboneau, M.D., Professor of Radiology and Associate Editor, Jo -Ann M. Johnson, M.D., Professor, Division of Maternal Fetal Medicine, Department of Obstetrics and Gynecology states as follows: Under the Heading ''Choledocholithiasis'', which is defined as formation of stone, it is stated that Bile duct stones are found in 8% to 18% of patients with symptomatic gallstones. It is also stated that an obstruction of the Common Bile Duct can lead to inflammation of the pancreas, which may cause pancreatitis.

THE learned counsel representing the Treating Surgeon also contended that there was a stone in the CBD and that the doctor had ascertained the same and only then operated on the patient. A brief prescription of the Surgeon dated 20.2.2001 shows that the patient had Cholecystectomy in the year 1997 and that she had come back to him with pain on 23.2.2001 and that an early operation was suggested. In his prescription he had clearly noted that there was a CBD stone in the upper abdomen. The learned counsel for the Radiologist stated that the prescription of the Treating Surgeon as well as the Medical Literature evidences that there was a stone in the CBD as on 23.3.2001.

THE expert opinion dated 20.4.2007 given by Dr. Samuel S. Rao, MD, Consultant Radiologist of Apollo Hospital Group reads as follows: "I am in receipt of four sheets of CT scan film done at CMC Vellore, done on 12.03.2001 and one sheet of ultrasound film of the hepatobiliary system dated 23.02.01 done at X -ray and Echo House Dhanbad. All the films bear the name of the patient as Kiran Sinha".

"The ultrasound film shows evidence of calculus (stone) in a tubular lumen which appear to be the common bile duct with minimal dilatation of the billiary radicals which may occur with partial obstruction of the distal billiary passage. The gall bladder is not shown in the film probably due to a previous surgical removal of the structure.

The CT scan done about 17 days after the ultrasound examination at CMC Vellore, confirms the findings of minimal dilatation of the billiary radicals in the left lobe of the liver and the absence of the gall bladder. Prominence of the common bile duct may be seen in patients with surgical removal of the gall bladder. Further, since the majority of the common bile duct and gall bladder calculi (stones) are radiolucent and therefore may not be visualised on CT scan which uses X -rays.

The findings of the ultrasound examination which shows a calculus (stone) in the common bile duct may not correspond with the findings of the CT scan examination done after a time gap of 17 days. Possibility of natural passage of the calculus is in the common bile duct during the intervening time period between the two examinations cannot be ruled out".

This report clearly evidences that there was a stone in the CBD and that there is a possibility of natural passage of the stone in the intervening time period of the USG and the operation. The expert compared the USG done on 23.2.2001 with the CT scan done at CMC Hospital, Vellore, 17 days later and had given his opinion.

THE expert opinion given by Dr. G.N. Sahoo, HOD, Bokaro Hospital reads as under: "After pursuing the initial report of stone in the lower end of the C.B.D., the operating surgeon decided for immediate operation as the patient was having mild jaundice with symptoms. On exploration, he found lot of adhesions with difficulty he explored the C.B.D. and head of pancreas. However, he could not palpate a stone in the CBD which according to USG report was of very small size. However, he could palpate some indurates in the head of pancreas in visiting to lower end of the CBD. After that he rightly abandoned the surgery and planned to refer the case to the higher centre. Keeping in mind that the induration could be suggestive of malignancy.

In my opinion, the surgeon has done right step in the treatment of the patient. Sometime, small stones can pass automatically from CBD and that is why a surgeon could not felt any stone during operation.

The indurated mark which the surgeon felt in the head of pancreas close to lower end of CBD is again suggestive of long standing chronic inflammation which could be due to presence of stone in the lower end of CBD.

I have perused the report of the concerned doctors of Vellore and I find that there was no stone in the CBD confirmed by ERCP and they also found evidence of indurates a bulky head of pancreas which they have suggested of focal pancreatitis. However, they have advised the patient to remain in follow up and if any symptom reopens then go for after a fan FNAC, keeping in mind as to rule and possibility of malignancy in future. In normal routine if any surgeon after seeing USG report and film finds a stone in the lower CBD with mild jaundice in a symptomatic patient this is not necessary for him to repeat the same before going for operation.

Cross examination on behalf of operating surgeon.

I do not find any latches and negligence in the matter of entire treatment by the operating surgeon. I do agree with the opinion of Vellore".

A comparative report done in C.M.C. Hospital, Vellore by Dr. Shyam Kumar NK and Dr. Shalini Govil, who are the Heads of the Department of Radiodiagnosis stated that there was a mild CBD dilatation upto the calculus seen on the US film done in Dhanbad. There was no pancreatic abnormality. All these experts opined that USG film showed a stone in the CBD but could have exited out in the intervening time period, therefore, we do not find any negligence on behalf of the Radiologist as far as detection of the stone in the CBD is concerned. Now we address ourselves to the second issue whether the Doctor was negligent in not detecting the shadow/lump on the pancreas in the USG done on 23.02.2001. The learned counsel for the Radiologist drew our attention to the Medical Literature filed, the third volume of Diagnostic Ultrasound, in which under the headings ''Acute Pancreatitis'' and '' Sonography'', it is stated as follows: "1. Acute Pancreatitis

Ultrasound is limited in its usefulness as part of the early investigation of acute pancreatitis or traumatic pancreatic injury, whereas CT has been shown to be useful in helping to predict the outcome of acute pancreatic inflammation and to detect necrosis and fracture of the pancreas."

"Sonography

Sonographic findings of acute pancreatitis can be classified by distribution (focal or diffuse) and by severity (mild, moderate, and severe). Ultrasound findings may be negative in the milder forms of acute pancreatitis. The examination may, however, find the cause of pancreatitis, such as choledocholithiasis, or an alternative diagnosis in questionable cases".

"Focal pancreatitis, presenting as focal isoechoic or hypoechoic enlargement of the pancreas without extrapancreatic manifestations, poses a dilemma to the imager. This presentation generally occurs in the pancreatic head (Fig. 7 -14)"

"Causes of acute pancreatitis

• Gallstones } 80%

• Alcohol

• Idiopathic: 10%

• Endoscopic retrograde cholangiopancreatography or sphincterectomy: 5%

• Miscellaneous: 5% Hyperlipidaemia Trauma Hyperparathyroidism Viral (mumps, Epstein -Barr virus, cytomegalovirus, coxsackievirus) Drug induced (thiazide diuretics, angiotensin converting enzyme inhibitors, oestrogens, corticosteroids, azathioprine) Anatomical (pancreas divisum, annular pancreas) Parasites (Ascaris lumbricoides)"

THE learned counsel for the first Respondent argued that most cases of acute billiary pancreatitis resolve on their own because of spontaneous passage of the stone and that a mass in the head of pancreas might cause obstructive jaundice. The Radiologist in his written version stated that regarding pancreatic pathology simple focal pancreatiticex is not possible to detect on ultrasound, specially in a patient with lots of adhesions after previous operation distorting the normal local anatomy. He further pleaded that at CMC Hospital, Vellore, the doctors found only bulky head of pancreas suggesting of focal pancreatities and not extensive pancreatities and not carcinoma of head of pancreas which could have been picked up easily by ultrasound examination. It is pertinent to note that in the operation notes of the Treating Surgeon, he had clearly stated that there was a lot of adhesions and that an attempt to identify the CBD was made but it was impossible to do so due to tough adhesions and distortion of local anatomy as a result of previous operation i.e. Kocherisation of duodenum which was done in the year, 1997. In view of the Treating Surgeon''s own observations in the Operation Notes and also the Medical Literature, we are of the considered view that USG examination cannot detect explicitly any tumor on the pancreas and only a CT Scan can do so.

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. : (2005) 6 SCC 1, a three Judge Bench decision; Indian Medical Association v. V.P. Shantha and Ors. : (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 of 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 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 England (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;...."

Keeping in view the afore -mentioned Judgments of the Apex Court, wherein the Hon''ble Supreme Court has repeatedly laid down the law that if the Doctor has administered a reasonable degree of skill and has followed standard norms of medical parlance, it cannot be construed as negligence, we are of the considered opinion that even in the instant case, there is no material on record to establish that the Respondent Doctor had been negligent in the reading of the USG.

THE State Commission has erred in not taking into consideration the expert opinion of both the doctors filed. It had observed in paras 15 and 16 as follows: "15. However, the presence of any such calculus stand ruled out by the operating surgeon on 1.03.01 and later by the Vellore Hospital we are unable to accept the plea that the said stone in the common bile duct may have passed out during the period 23.02.01 to 1.03.01 in normal process. Our view is support by the fact that if the said stone was causing obstruction and severe pain to the complainant lady with passing out, symptoms of pain etc. must have ceased. Further, we find that in the higher centre the probably cause was held the bulky head of pancreas causing Focal Pancreatitis.

Thus, we find that the report dated 23.2.01 was not prepared with due care and proper verification. The reported presence of calculus (stone) (with 1.32 x 0.64 CM. size) in the CBD of 0.7 CM. length was definitely incorrect particularly when the gall bladder has already been removed. The U.S.G. film reported the pancreas as normal when it was definitely found having bulky head of 2.5 CM. size probable cause of focal pancreatitis. The absence of its presence in the U.S.G. report is evidently incorrect. The bulky head may not appear within one week when it was found and reported by Dr. M.P. Jha on 1.03.01".

In that considered view of the medical literature normal calculus present in G.B. and CBD, even sand size have to be removed alongwith G.B. known as chollectomy. In common parlance small stones as dust or grains if situated in kidney may pass out with urine. As such in all probability we do not find that the stone if any in the CB duct of size 0.7 CM. in length and having been promptly seen by Dr. Vishwakarma in U.S.G. film with size 1.32 x 0.64 CM. could pass out with urine in natural process".

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. In the result, Revision Petition No. 3394 of 2010 preferred by the first Respondent/Doctor is allowed and Revision Petition No. 306 of 2011 preferred by the Complainant is dismissed. Consequently, the order of the State Commission is set aside and the Complaint is dismissed. No order as to costs.