MUMTAJ ANSARI vs ZUBEDA

THIS is an appeal against the order dated 24.2.2004 passed by the District Forum, Udham Singh Nagar whereby the complaint of the complainant was allowed and the appellant was directed to pay a compensation of Rs. 1,00,000/- to the complainant and cost of Rs. 1,000/-.

THE brief facts of the case are that the complainant was suffering from gall bladder stone, which was treated by the opposite party Dr. Mumtaj Ansari. THE opposite party advised for operation for removing the stone from the gall bladder. THE complainant was admitted in the nursing home of the opposite party for operation. THE complainant deposited a sum of Rs. 20,000/- for various tests and operation. THE complainant remained hospitalized in the nursing home of the opposite party from 18.7.2002 to 1.8.2002 but after operation she suffered from jaundice. Because of the fact that the condition of the complainant was not improving, the opposite party referred her for Meerut. After discharge from the nursing home, the complainant took the second opinion of Dr. R.K. Singh, who advised for ultrasound and other tests, in which the complainant spent a sum of Rs. 5,000/-. On 2.8.2002, on the advice of opposite party, the complainant was shown at Meerut. THEre also various tests and ultrasound were conducted. On the basis of which, it was informed to the complainant that her operation has been done negligently. Along with the operation of gall bladder, the CBD (Common Bile Duct) has been cut down, due to which the Bismuth Level-3 has developed, which stopped the process of digestion of food and due to which the jaundice was caused. From the ultrasound report of United Scan dated 2.8.2002, it came to know that the CBD was only 6 mm. After that she was immediately admitted in Neelkamal Nursing Home for the operation of CBD, in which about a sum of Rs. 50,000/- was spent. THEse expenses were incurred due to the negligence of the opposite party. THE complainant filed the prescription of Mumtaj Nursing Home, report of Surya Diagnostic Centre, Kashipur, report of Meerut Scan Centre in support of her allegations. The opposite party filed written statement and admitted the operation of the complainant and also admitted that there was stone in the gall bladder but denied the taking of Rs. 20,000/-. It is also admitted that the complainant was referred to Meerut because it was in the interest of the complainant. The other allegations of the complaint have been denied. It is alleged that the cutting of CBD is a well-known complication in the operation of gall bladder and there are 30% cases of this type. The operation was done with full care. There is no deficiency in service. Before operation, the risks of operation were informed to the complainant.

Both the parties filed their affidavits and other relevant documents in support of their allegations. The opposite party alleged that he is a M.B.B.S. doctor from 1967 and he has done various operations in different hospitals. When the complainant was referred to Meerut Hospital, her pulse, blood pressure, temperature was normal. The opposite party filed the experience certificate of Neel Kamal Nursing Home, Meerut, Jeevan Nursing Home Shimla, Dr. Ajay Aggarwal, Deputy C.M.S. Meerut and also the report of Meerut Scan Centre.

THE learned Forum after taking the evidence of the parties and hearing them allowed the complaint as above, against which order the present appeal has been filed. We have heard the learned Counsel for the parties and gone through the records. It is admitted fact that during the operation of gall bladder of the complainant, the CBD was cut. The appellant has alleged that it is well-known complication in this type of operation and it happens in 30% cases and there is no negligence on his part. In support of his argument, the appellant filed Principles of Surgery, Fifth Edition. In this literature in the heading "Operative injury of the bile ducts", it is mentioned that, "the great majority of injuries of the extrahepatic biliary duct system are iatrogenic, occurring in the course of gall bladder surgical procedures. In over 70 per cent of the cases, the cholecystectomy had apparently been carried out without incident. In the remaining 30 per cent, a variety of factors were implicated. These included cholecystectomy for contracted gall blader, intimate association between the ampulla of the gall bladder and the common hepatic duct, massive hemorrhage at the time of operation with attempted "blind control", during which the duct was occluded and traumatized, and excessive tension when litigating a cystic duct. Lack of appreciation of anatomy and possible anomalies in the region increase the incidence of surgical trauma of the common duct.

THE law of Medical Negligence and Compensation Second Edition by R.K. Bag was referred by the appellant, in which at page at 164 para 3, it is mentioned that the patient undergoing gastric surgery must know the recognized complications like alteration in digestion, which leads to dumping syndrome. It is mandatory to warn the patients undergoing prostatectomy that retrograde ejaculation and sexual impotency may occur. It is further mentioned that the leakage of bile or jaundice due to inadvertent injury to the bile duct is complication of gall bladder surgery. At page 165 in heading "treatment before surgery", it is mentioned that it is duty of the Surgeon to make some routine investigations before every surgery. (a) Haemoglobin, TC, DC, ESR; (b) bleeding time, clotting time; (c) blood urea, creatinine, blood sugar (fasting and PP); (d) X-ray chest, ECG and cardiology toxoid injection (of two doses) should be given as prophylaxis against tetanus before any open elective surgery. That apart, special investigations should be done as per requirement in individual cases of super speciality. The Medical Ccience Book 21 Recent Advances in Surgery edited by I. Taylor and C.D. Johnson was also referred by the appellant, in Chapter 1, it is mentioned that Bile Duct Injury (BDI) has long been recognized as a serious complication of cholecystectomy and its occurrence has been highlighted with the introduction of laparoscopic surgery. Injury to the biliary tree is reported in approximately 0.2% of patients undergoing open cholecystectomy. It is further mentioned that it is not always be possible to determine the precise nature of the BDI but a number of possible mechanisms may be responsible. The report of Aman Diagnostic Laboratory dated 17th July, 2002 has been filed, in which report of various tests has been mentioned. The report dated 26th July, 2002 has also been filed. It means that the doctor performed his duty by advising the patient to undergo various tests before the surgery. In para 12 of his written statement, the appellant has alleged that various tests were conducted, which are essential before any surgery and said the complication, which occurred, occurs in 30% cases of these surgeries. He further said that the agony she suffered due to a well-known complication of such operation, is very unfortunate in this case but the bright part of this is that due to prompt and early help of him, she got best treatment and is now perfectly all right and leading totally normal and healthy life.

THE appellant also filed the certificate of Dr. Navneet Garg dated 5.8.2004, in which he has alleged that the Common Bile Duct injury in these cases is a very common complication. Despite all precautions cause of such injury is not known till date.

THE only point to be seen in this case is whether the doctor has been negligent in performance of his duties or not? THE facts of the case are very clear and are rather admitted one. THE doctor has done the operation and it is also admitted that the CBD was cut down. THE appellant himself referred to Law of Medical Negligence and Compensation Second Edition by R.K. Bag, in which it has been specifically provided as discussed above in para 7 of this judgment that the patient undergoing gastric surgery must know the recognized complications like alteration in digestion, which leads to dumping syndrome. It is mandatory to warn the patients undergoing prostatectomy that retrograde ejaculation and sexual impotency may occur. It is further mentioned that the leakage of bile or jaundice due to inadvertent injury to the bile duct is complication of gall bladder surgery. We may emphasize that the appellant himself says that the patient must know the recognized complications and it is mandatory for the doctor to warn the patients. How the patient will know? THE patient is not a doctor. He is not an expert. His knowledge comes from the doctor. THEre is no whisper in the written statement that the patient was informed about the recognized complications of surgery like this and there is no whisper in the written statement or any other evidence that the mandatory duty was performed by the appellant to warn the patient undergoing this surgery. THEre is also nothing on record to show that the doctor before operation has informed the patient that the leakage of bile or jaundice due to inadvertent injury to the bile duct is complication of gall bladder surgery. It is settled principle of law that a consumer has got not only right to be treated by the doctor but he has also a right to be informed of the possible effects and after effects of the line of treatment or operation adopted by the doctor. Even otherwise if the present doctor knew that these types of cutting of the bile duct and jaundice are possible effect of operation, then there is nothing on record to show what precautions the doctor has taken that this might not occur. This per se speaks of the negligence of the doctor. The Medical Science Book 21 recent advances in surgery edited by I. Taylor and C.D. Jonson was also referred by the appellant, as referred in para 8 of this judgment. This book also shows that bile duct injury (BDI) has long been recognized as a serious complication of cholecystectomy and its occurrence has been highlighted with the introduction of laparoscopic surgery. If it was so, why not the doctor preferred to inform this fact to the complainant before operation and if it is so, there appears nothing that any precaution to avoid this type of injury has been taken by the doctor.

Again the literature Principles of Surgery, Fifth Edition was referred by the appellant as referred in para 6 of this judgment. It has specifically been provided under this book that in 70 per cent of the cases, the cholecystectomy had apparently been carried out without incident and in the remaining 30 per cent, a variety of factors were implicated. These included cholecystectomy for contracted gall bladder, intimate association between the ampulla of the gall bladder and the common hepatic duct, massive hemorrhage at the time of operation with attempted "blind control". It is not there in this literature that in every 30% case CBD is bound to cut. It will cut only where there is contracted gall bladder, intimate association between the ampulla of the gall bladder and the common hepatic duct and massive hemorrhage and if all these facts do not exist, there should not be cutting of CBD in even these 30% cases. There is absolutely no allegation, no evidence that the complainant has got contracted gall bladder. She has got intimate association between the ampulla of the gall bladder and the common hepatic duct or there was massive hemorrhage at the time of operation and if it was so, the complainant should have been informed about this fact.

WE are surprised at the performance of duties by this doctor. He appears to have formed at team of doctors of different varieties to grab money from public. The pamphlet published by him also shows the same fact. He has given his diplomas with highlighting M.S. but he is not M.S. He appears to be a doctor at Meerut but the operation has been conducted at Udham Singh Nagar. He appears to be a roaming doctor with a team of doctors. It is admitted fact that the complainant has been hospitalized in the nursing home of the appellant from 18.7.2002 to 1.8.2002 for 15 days and after 15 days she was referred for Meerut. It is probably because this doctor, appellant has got his main nursing home at Meerut but there is nothing in the written statement or affidavit of the appellant that he has conducted any test or exercise to know what was the real cause of the ailment persisting. The appellant also admits that the complainant has been referred to Meerut. It means that he could not cure. He has further admitted that the complainant was referred for Meerut for better treatment in her own interest. It means that it is admitted fact that the interest of the complainant could not be served by the treatment of the appellant. Then before referring the complainant to Meerut, it was the obligatory duty of the appellant to have enquired the after effects of his operation and he should have immediately informed these facts to the complainant because the complainant has got every right to know why she has not been cured. But there is nothing on the record to show that these informations were given by the appellant to the complainant. This is definitely deficiency in service of the appellant. The appellant has alleged in his written statement that it is incorrect to say that he charged a sum of Rs. 20,000/- from the complainant. He pleaded that the complainant is put to strict proof of it. He did not say even a single word that if he has not charged Rs. 20,000/-, what were his charges. How much amount he charged for operation and what amount he charged for the treatment of the complainant and her keeping admitted in his nursing home for 15 days has not been disclosed. At least he did not do it free of charges. Merely by writing that (Hindi matter omitted). This does not mean that the complainant has been informed that her bile duct may also be cut down and she may also develop jaundice and if she undertook operation on information, then there is nothing on record to show that after operation, the evil consequences of the operation which the complainant has suffered has been informed to her.

THE learned Counsel for the appellant referred certain rulings that there is no expert evidence. He referred the judgment of this Commission reported in I (2004) CPJ 123=2004 (2) CPR 165, Smt. Vimlesh Dixit v. Dr. R.K. Singhal, and the judgment of the Hon''ble National Commission reported in III (2004) CPJ 20 (NC)=2004(2) CPR 45 (NC), Inderjeet Singh v. Dr. Jagdeep Singh, that in the absence of expert evidence, the complaint should not exceed. THE law has not made any provision that even if the case of the complainant is proved, without expert evidence, it should be dismissed unless there is expert evidence. Expert evidence is necessary when certain facts are to be proved by those expert evidences. Here the reference books and authorities filed by the appellant in themselves are expert opinions and these expert opinions do not favour the appellant. As narrated above the doctor has failed in his primary duties itself. His negligence and deficiency in service is proved per se from the record. No further proof is necessary. THErefore, these rulings shall not apply to the facts of the present case. Coming to the quantum of compensation, a vital part of the complainant has been cut forever. She may always be in a danger of in digestion and jaundice. She has alleged that she has paid Rs. 20,000/- to the appellant. She has been hospitalized in the nursing home of the appellant for 15 days. She has again been referred to Meerut. In Meerut also she got prolonged treatment and she had to undergo various types of tests. These are not possible without handsome expenditure. In these circumstances the compensation of Rs. 1,00,000/- as awarded by the learned Forum cannot be said to be excessive. We do not find any infirmity in the order passed by the learned Forum. This appeal has got no force and is liable to be dismissed with cost. ORDER The appeal is hereby dismissed. The opposite party shall further get a cost of Rs. 2,000/- (Rupees two thousand) from the appellant. Appeal dismissed.