N.K. KOHLI vs BAJAJ NURSING HOME

THIS is a complaint under Section 12 read with Section 17 of the Consumer Protection Act, 1986 (for short ''the Act''), wherein the complainant has asked for a compensation of Rs. 12,07,679/- from the opposite parties for deficiency in medical service provided to the complainant''s wife, who after treatment, died on 11.9.1995 at the hospital of opposite party No. 3. The undisputed facts of the case in brief are as under : (i) That the complainant is husband of late Smt. Pramila Kohli who died on 11.9.1995. (ii) That the patient late Smt. Pramila Kohli was examined by opposite party No. 2-Dr. Y.R. Krishna on 18.3.1995 and was advised to undergo surgical operation. (iii) Late Smt. Pramila Kohli was operated on 23.3.1995 by Dr. Y.R. Krishna at Bajaj Nursing Home, Bilaspur, i.e. opposite party No. 3. The gall bladder of the patient was removed by laparoscopic method, technically termed as "Laparoscopic Cholecystactomy". The patient remained admitted in the hospital till 1.4.1995. (iv) That the patient was again attended by opposite party No. 2-Dr. Y.R. Krishna on 4.4.1995 and remained admitted in Dr. Rajesh Sharma''s Nursing Home from 8.4.1995 to 14.4.1995 under supervision of Dr. Y.R. Krishna. (v) She again remained admitted in Bajaj Nursing Home from 18.4.1995 to 22.4.1995. (vi) During Laparoscopic Cholecystactomy cystic duct was clipped and severed and gall bladder was removed from its fundus in liver. (vii) On 28.3.1995 sonography was conducted and as per inference drawn in the ultra scan report "subacute intestinal obstructions" was detected. (viii) Again sonography was conducted on 8.4.1995 at Dr. Rajesh Nursing Home on the advice of Dr. Y.R. Krishna and the report indicated "A sol of size about 52 x 35 mm. with smooth margins and increased posterior transmission and without internal echoes is seen on anter-lateral to liver." (ix) As per certificate dated 14.4.1995 issued by Dr. Rajesh Sharma''s Nursing Home (Annexure 15) Smt. Kohli was admitted on 8.4.1995 and was discharged on 14.4.1995. At the time of admission, she was showed fluid collection anter lateral to liver and as per this certificate 300 ml. fluid was taken out and drained with the help of needle by Surgeon. (x) Again sonography was done on 19.4.1995 and USG report dated 19.4.1995 of Dr. Rajesh Sharma Nursing Home mentioned as under : "Liver - Vild Hepatomegaly CHD is 8 mm. dilated A SOL of size about 61 x 41 mm. with smooth margin and increased posterior transmission, is seen anteral, lateral to liver." (SOL means space occupying lesion) It was further mentioned in the report that there was mild hepatomegaly with fluid containing SOL anter lateral to liver. The patient was again admitted in Bajaj Nursing Home and after draining of fluid artificial drain was fitted for removal of further liquid. (xi) On 1.9.1995 the patient was advised by Dr. Y. Krishna to go to Medwin Hospital, Hyderabad, i.e. opposite party No. 3. The patient was admitted in this hospital on 11.9.1995 and remained admitted in the hospital from 11.9.1995 to 25.9.1995 and passed away at 6.45 a.m. on 25.9.1995. (xii) After the death of Smt. Kohli two certificates (Annexures 37(i) and 37(ii) were issued by one Dr. V.V. Ramana. In death report (Annexure 37(i) cause of death was mentioned as "Pancreatitis septic shock". Date of issuance of certificate is not clearly visible. Death certificate (Annexure 37(ii) is dated 25.9.1995 and in this certificate the cause of death is mentioned as "stricture CBD (post cholecystectomy), Biliary, pan-creatitis septicemia, septic shock.

THE complainant has alleged that when after performance of operation on 23.3.1995 the patient did not become symptom free (not relieved of pain), Smt. Pramila Kohli was attended by Dr. Y.R. Krishna on 4.4.1995 and was prescribed some medicines and when she did not get any relief she was admitted in Dr. Rajesh Sharma Nursing Home for pain in abdomen and was operated upon as per details contained in Annexure 15. When, she did not get any relief hereafter also, she was again operated at Bajaj Nursing Home on 19.4.1995. When she did not get any relief she remained under treatment of Dr. S.K. Gupta for about a month and she was advised Endoscopic Retrograde Cholengio Pacreatography (commonly known as ERCP) by Dr. S.K. Gupta at Bhilai Steel Plant where the facility for the aforesaid test was available. Despite her three visits to Bhilai Hospital she could not get this done due to non-functioning of required equipment for the aforesaid test and was shifted to Hyderabad on 10.9.1995. THE complainant has alleged in para 10 of the complaint that the patient had to suffer on account of improper handling of operative tissues at the time of carrying out Laparoscopic Cholecystactomy done by Dr. Y.R. Krishna on 23.3.1995 at the Nursing Home of opposite party No. 1. That the patient was not provided sufficient professional services by opposite parties and Dr. Y.R. Krishna was negligent while carrying out the operation and providing post-operative care on and after 23.3.1995. THErefore, the complainant has prayed compensation on various counts as mentioned in para 13 of his complaint. In oral and written arguments, the complainant''s Counsel argued that Dr. S.K. Gupta who treated Smt. Pramila Kohli subsequently diagnosed the probable cause of pain as peritonitis which means an inflamation of the peritoneum produced by bacteria or irritating substance introduced into the abdominal cavity by penetrating wound or perforation of organ in the G1 tract, the complainant has alleged that the patient suffered with CBD strictures, post operative as a result of laparoscopic cholecystectomy biliary leak and biliary fistulae. Quoting contents of page 932 of the Text Book "A Short Practice of Surgery" of Love and Belly the complainant has alleged that this CBD strictures was the result of preventable error in technique during performance of cholecystactomy. Learned Counsel for the complainant further argued that it is mentioned at page 195 of the Text Book "Surgery of the Biliary Tract, Pancreas and Spleen by Charles B Puestowa" that when damage is caused to the extra hepatic system to cause leakage of bile, such accidents demand early surgical exploration. If the common bile duct has been damaged or severed, it should be carefully exposed and primary surgical repair completed whenever possible. Learned Counsel has further emphasized in his written arguments as under- "It also corroborates that the surgical accidents are the most common cause of benign strictures of common bile duct. The result of such accidents often are tragic and every possible precaution should be taken to avoid them. If this type of accident is not recognised and corrected at the time of operation it usually produces postoperative system of abstractive jaundice, bile peritonitis, or external biliary damages which is clear from the record that there was external biliary drainage and the bile was drained out twice in a month after the surgery by the same Surgeon who performed the surgery, and did not take care to repair the damages caused during the operation constituting deficiency in service as well as negligence on part of the Surgeon performing the surgery. It has also been admitted by the opposite party No. 2 that he created the fistulae for making arrangement for draining out the bile which was being deposited in the peritoneal region of the patient, but he has not mentioned about the steps to be followed up after said operation. It also reveals that the opposite party No. 2 has not put up this case with clean hands by concealing the original facts that he did not take proper care for the post-operative injury caused to the patient, which constitutes negligence caused to the patient, which constitutes negligence and deficiency on the part of opposite party No. 2".

So far as the above arguments of the learned Counsel are concerned, we find that the pages 195, 196 and 198 of the Text Book on Surgery of The Biliary Tract Pancreas And Spleen by Charles B. Puestow advise as under : "Page 196 : Surgical accidents are the most common cause of benign strictures of the common bile duct. The results of such accidents often are tragic and every possible precaution should be taken to avoid them. Page 195 : If the common bile duct has been damages or served, it should be carefully exposed and a primary surgical repair completed whenever possible. Page 198 : If the type of accident is not recognised and corrected at the time of operation, it usually produces immediate post-operative symptoms of obstructive jaundice, bile peritonitis or external biliary drainage."

IN rebuttal, the opposite party No. 1 in reply stated that opposite party No. 1 is only a Nursing Home and the complainant has not made any allegations against the staff, facility or anesthesia given in Nursing Home and gave no parawise reply, stating as not required. Opposite party No. 3 Medwin Hospital first filed preliminary objection stating that the complainant being a second category of heirs to the deceased had no locus standi to file the complaint. Second argument put forward by the opposite party No. 3 was that the claim is highly exaggerated and in parawise reply, the opposite party No. 3 stated that since post-mortem of the deceased was not done, the actual cause of death could not be known. Besides, the death certificate given by Dr. Raman contained his personal opinion and the complainant has himself stated that the death occurred due to the causes as given in the certificate and no other cause.

THE opposite party No. 2, Dr. Y.R. Krishna first of all put forward two preliminary objection; first plea is that husband was not legal heir of first category and secondly the dispute involved intricated problems and was not maintainable before this Consumer Commission. Dr. Y.R. Krishna further stated that he took all necessary precautions and performed an operation which was quite successful as per standard practice in the medical books and there was no negligence on his part. Since, ultra sonography dated 28.3.1995 did not reveal any collection of fluid, the patient was discharged on 1.4.1995. Dr. Y.R. Krishna further stated that collection of fluid was not unusual but in any case. It was not result of any operation and actual reason for collection could be known by ERCP test and in para 14 of his reply he further stated that he had explained the approach to Medwin Hospital by drawing a sketch and had also given to the complainant, a reference letter for Medwin Hospital. That the patient did not contact him after 22.4.1995 till 7.9.1995 and she died having not followed the advice of the opposite party No. 2 for check-up at Hyderabad and ERCP test. That the cause of death could not be stated in certainty without post-mortem. THE strictures CBD could never be a cause of death. Similarly, pancreatitis septicemia, septic shock can never occur after six months from the date of operation. THE septicemia may occur at the most within 15 days from the date of occurrence of infection. Septic shock is of course connected directly with pantriatic septicemia. Dr. Krishna has further stated in his reply that the patient did not follow his advice for ERCP test and the patient lost contact with him after 22.4.1995 till 7.9.1995. In para 16 of the same reply he has said that he gave another referral letter for Medwin Hospital on 7.9.1995. The learned Counsel for parties No. 1 and 2 and Dr. Krishna brought following additional points for our consideration in their written statements and also during the course of arguments. "(i) Such biliary leakage are known common complications of such operation in 0.65% cases. The causes are : (1) cutting of micro-ducts between gall bladder and liver which are invisible to nacked eyes, (2) leakage from cystic duct stump, (3) retained stone in CBD and (4) injury to CBD during removal of gall bladder. The exact reason could be ascertained by ERCP test. The cure was just removal of fluid either through aspiration by needle or drain (technically known as fistula). (ii) Biliary leakage was not complained thereafter. After 22.4.1995 the patient lost contact with Dr. Krishna and took treatment elsewhere. Now it appears that she was under treatment elsewhere of Dr. S.K. Gupta for about four and a half months. Thereafter on 11.9.1995 she was admitted to Medwin Hospital, Hyderabad where she expired on 25.9.1995, i.e. after more than 6 months from the date of operation. (iii) The causes of biliary leakage stated in para 5 cannot be attributed to any negligence on the part of Dr. Krishna. These causes are inherent in all operations of removal of gall bladder. Fortunately, for Dr. Krishna, the last three causes are ruled out in the present case on the basis of available record. Thus the only reason was cutting of micro-ducts between gall bladder and liver which are not visible to naked eyes and which are necessarily cut during all operations. Such leakage stops after some time as was the present case because after 19.4.1995 there was no evidence of any biliary leakage although sonography was conducted at least three times thereafter and ERCP tests were conducted on two occasions. (iv) The second cause of leakage from cystic duct stump is ruled out because the surgical clip applied on 23.3.1995 was found in its place during X-ray examination report dated 11.9.1995.(Annexure-35). (v) The third cause of leakage from retained CBD stone is ruled out because stone was not found in any of the sonography reports dated 28.3.1995 (Annexure-6), 8.4.1995 (Annexure-12), 19.4.1995 (Annexure-16), 8.7.1995 (Annexure-24), 11.9.1995 (Annexure-30) and 20.9.1995 (Annexure-35) ERCP test reports dated 11.9.1995 and 13.9.1995 were not produced by the complainant for which adverse inference may be drawn against him. (vi) The fourth cause of leakage from injury to CBD during operation is ruled out because such injury would have caused strictures during its healing process resulting in narrowing of diameter of CBD. The CBD diameter was found to be between 5 and 6 mm. during last three sonography reports dates 8.7.1995 (Annexure-24), 11.9.1995 (Annexure-30), and 20.9.1995 (Annexure-35), CBD strictures written on the first page of case sheet of Medwin Hospital is of no consequence because this probability was never confirmed either by sonography tests or by ERCP tests. In any case no expert medical opinion exists in medical science which may say that any patient may expire due to stricture CBD. (vii) The allegation of the complainant during final arguments that the patient has suffered peritonitis due to biliary leakage has no basis in any test reports. (viii) Obviously giving of multiple reasons for death is neither here nor there because even Dr. V.V. Ramana was not certain. Secondly his employer Medwin Hospital disowned the above reasons by stating in para 9 of its reply that this is only personal opinion of Dr. V.V. Ramana in any case, when Dr. V.V. Ramana was not the treating doctor and no expert for such opinions, his opinion cannot be relied against Dr. Krishna. (ix) The most probable cause of death was pancreatic septicemia resulting in septic shock. This was caused due to infection which started on 13.9.1995 due to perforation of intestine occurring during ERCP test in Medwin Hospital. The medical literature confirms such complications after ERCP test. This complication can be objectively demonstrated by three documents on record. Firstly the CT Scan report dated 14.9.1995 (Annexure-30) were found to be bulky due to severe infection in sonography report dated 20.9.1995 (Annexure-35) confirms retropetritoneal perforation. Secondly pancreas which were reported normal in sonography report dated in 11.9.1995 (Annexure-33). Thirdly as per case sheet the patient had to be shifted to medical care unit while she was originally admitted in surgical unit. (x) The complainant intended to argue that continued biliary leakage caused peritonitis that peritonitis caused structure CBD; that stricture CBD caused pancreatic septicemia; that pancreatic septicemia resulted in death. Thus, Dr. Krishna was all through responsible and negligent for all subsequent complications as well as death. This link has no basis because neither there is evidence of stricture CBD, nor of peritonitis due to leakage of bile. (xi) As a rule, the onus of proving the negligence is on complainant. He must show that he was injured by an act or an omission for which the defendant is in law responsible. There must be proof of some duty owed by the defendant to the complainant, some breach of that duty, and an injury to the complainant. Further it must be shown that the negligence was the proximate cause for death. This burden was not discharged because there is neither pleading nor proof of particulars of negligence. The doctrine of res ipsa loquitur shall not apply because the death occurred after more than 6 months after the operation."

Dr. Krishna also filed 10 handwritten notes giving details of operation performed and as to what was done by him and various kinds of report. In his Note No. 3, Dr. Krishna has stated that he referred the patient to Hyderabad for ERCP, for which Annexures-29 and 22 may be seen, but the patient did not follow his advice. The patient was again referred to on 7.9.1995. So far as document Annexure 22 is concerned, it is Haematology report and it does not mention anything about his advice for ERCP. Document Annexure 29 is simply a sketch indicating location of Medwin Hospital, Hyderabad. It is neither a referred letter nor does it mention as to what he is advised for. This contains only short notes stating "A.P. Express to Secunderabad to Hyderabad to Medwin Hospital to Dr. Venkata Rao, Department of Surgical Operations" and nothing else. It does not even mention the words ERCP test. Apparently, this appears to be note cursorily recorded on 7.9.1995. This is not a reference letter dated 22.4.1995 or 7.9.1995.

WE also find a lot of contradictions in the records furnished by Dr. Krishna or his Counsel. In his affidavit dated 6th July, 1997, Dr. Krishna has stated in para 9 that even in Medwin Hospital, Hyderabad ERCP test could not be conducted and the patient expired on 25.9.1995, whereas in his handwritten notes on page 8, he writes that ERCP was done on 11th and 12th and patient developed acute pancreatitis on 13.9.1995 and PIC shows leak produced by ERCP. On the ninth page of his handwritten notes he states that the patient died because of acute pancreatitis which is a complication of ERCP. Something is stated in para 13 of the written argument dated 27.2.1999. But in his affidavit dated 6.7.1997 Dr. Krishna has stated that in absence of ERCP test and the post mortem examination of the dead body of the patient, no medical expert can state the actual reason for the death. As against this Dr. Krishna has repeated again in page 10 of his handwritten notes that "ERCP has produced pancreatitis and septic shock leading to the death of the patient. And in written arguments dated 27.2.1999 in para 9 it has further been argued on behalf of non-applicant Nos. 1 and 2 that ERCP test reports dated 11.9.1995 and 13.9.1995 were not produced by the complainant for which adverse inference may be drawn against him, whereas ERCP test report and two films were actually filed by complainant on 1.2.1999 and a note to that effect is recorded on the note sheet and the said documents are on record with the Commission. Similarly this reply of Dr. Krishna reported in so many documents is also wrong that he lost contact with the complainant from 20.4.1995 to 7.9.1995 because the complainant has filed photocopy of a document which is Annexure-27 wherein on 29.7.1995, Dr. Krishna in his own handwriting has advised blood test for M.P. (Malaria Parasite).

WHAT is most surprising in this case is that the patient remained hospitalised three times in two different Nursing Homes. But, she does not appear to have been issued any discharge certificate or slip by Bajaj Nursing Home or Dr. Krishna, else the photo-copies of the discharge certificates would have been furnished before us by the complainant or if not provided by the complainant could have been asked by Dr. Krishna to be produced before us to confirm as to what treatment was given or what surgical operation was done and what post-operative advice was given to the patient. We do not know why this lapse has occurred on the part of opposite parties Nos. 1 and 2 whereas issuance of discharge certificate for post-operative care is mandatory part of duty of the treating physician or surgeon and concerned Nursing Home and non-issuance of such a certificate amounts to grave negligence and deficiency on the part of the surgeon and also concerned Nursing Home. Dr. Krishna had admitted in his cross-examination that Bhilai Hospital has facility for ERCP test and, therefore, he could have easily referred the patient to Bhilai Hospital and there was absolutely no necessity to refer the patient to Medwin Hospital as early as on 22.4.1995. This referral to Hyderabad would have been necessary only when ERCP test was not available in nearby hospital. We further find that in his reply in para 13, he says that he referred to patient to Hyderabad because there was no such facility at Bilaspur. But he has not mentioned a word about the facility available at Bhilai. Annexure-29 is only drawing of rough sketch map for going to Hyderabad. Annexure-29 does not mention a word about ERCP. 11 is not a referral letter. Referral letter is Annexure-28 issued by Dr. Gupta. In the list of documents submitted by opposite parties Nos. 1 and 2, at serial number 6, is a sheet which contains notes recorded in between 18.4.1995 to 23.4.1995 wherein ERCP in Medwin Hospital, Hyderabad is found to have been advised. The complainant has alleged that these documents purporting to the post-operative notes are documents fabricated after receipt of notice of the complainant and we also feel that these documents do not appear to be a part of case history else photo-copies of entire file would have been produced and only some loose papers would not have been filed as have been filed. Besides this document filed at S. No. 6 is not written on the letter pad of Bajaj Nursing Home but are on Dr. Krishna''s pad retained by himself and not passed on complainant or to the Nursing Home. When it was specifically stated by complainant in his affidavit dated 22.9.1998 that ERCP test was not advised by Dr. Krishna on 18.4.1995 and was advised by Dr. Sandeep Gupta for the first time why was not a counter affidavit filed as was already prayed for as recorded in note sheet dated 24.9.1998. In his cross-examination recorded on 1.2.1999 Dr. Krishna referred only to his referral by sketch of 7.9.1995 but does not say a word about referral on 22.4.1995. If Dr. Krishna had issued two referral letters for Medwin Hospital, he also could have requested the Commission to direct the complainant or non-applicant No. 3 to produce these referral letters just as complainant had requested the Commission on 1.1.1997, to direct non-applicant Nos. 1 and 2 to produce before the Commission original bed tickets. Complaint was filed on 9.4.1996 alongwith the annexures and the replies by non-applicant Nos. 1 and 2 were filed after a year i.e. on 14.4.1997 and 3.5.1997. In replies they could have requested the Commission to direct the complainant to file discharge certificates or referral letters if they had issued any but neither of the two events made any such request for production of documents. Therefore, we are inclined to feel that defence of advice for ERCP is an after thought. Such an advice was never given as post-operative advice and was given for the first time on 7.9.1995 after the patient had already been referred for ERCP by Dr. Gupta vide Annexure-28 on whose advice the complainant went to Bhilai twice.

On a perusal of book on Laparoscopic Surgery in Developing Countries by Tehemton E. Udwadia submitted by Dr. Krishna himself, we find that page 215 contains notes on "Segmental Duct injury" and other bile leaks, wherein it is mentioned that "an ERCP is mandatory to rule out a CBD injury first and then the duct is ligated by Laparoscopic or open surgery". In instant case, when the leakage was noticed continuously and fluid was drained twice, it was bounden duty of Dr. Krishna to ensure that the complainant is impressed upon the necessity of ERCP test available at Bhilai because treatment would have followed after ERCP test and for ERCP test only, it was not necessary to direct a patient to go to Hyderabad instead of nearby place at Bhilai. Dr. Krishna has admitted in para 5 of written arguments that fluid was removed by needle "technically known as fistula". In the same book it is mentioned on page 189 that an urgent endoscopic sphincterotomy is today considered as the treatment of choice for patients presenting with severe gallstone pancreatitis. On page 190 it is mentioned that in patients who present with acute cholangitis, too, an urgent ERCP not only provides immediate diagnostic information but also allows drainage of the infected bile and extraction of the stones. On page 179 of the same book, it is mentioned that in the post laparoscopic-cholecystectomy period, ERCP is an extremely useful tool in the management of posto-perative jaundice or biliary leaks. On page 177 the Chapter deals with "role of ERCP in the perilaparoscopic-cholecystectomy period". On page 180 in the same book it is mentioned that in a recently conducted multicenter trial, the overall incidence of biliary leak following laparoscopic cholecystectomy has been shown to be quite low, 0.3 percent in 3,500 patients, the most common site of the leak being from the cystic duct stump. Whenever there is a major leak, initial drainage of the collected bilioma is of prime importance followed by a surgical correction. The book, on page 195, clearly mentions that avoidance of ERCP drastically compromises the patient''s safety.

IN the Book, Surgery of the Biliary Tract Pancreas and Spleen by Charles B. Puestow in page 196 it is mentioned that surgical accidents are the most common cause of benign strictures of the common bile ducts. The results of such accidents often are tragic and every possible precaution should be taken to avoid them. As has been pointed out by learned Counsel for the complainant that strictures is the result of preventible error in technique during the performance of cholecystectomy. Thus, this being a preventible error needed utmost caution. In the book again furnished by Dr. Krishna himself "Maingot''s Abdominal Operations, Ninth Edition, Volume II", at pages 14/9 it is mentioned that "it is important to remember that cholecystectomy is a major operation and should never be undertaken lightly". It further mentions that "injuries to the main ducts are nearly always the result of misadventures during operations and are, therefore, a serious reproach to the surgical profession. They cannot be regarded as just an ordinary risk". This book further mentions that injuries occurring during surgical operations are important, firstly because they are preventable and, secondly because they increase mortality and morbidity rates far in excess of those recognised for the initial surgical procedure. In this case, drainage has been continuous for about three weeks or so that is why the opposite party No. 2 Dr. Krishna kept the patient admitted in two different hospitals twice. Such a situation required greater precaution because again in the same book is stated that "Excessive biliary drainage from the wound or drain sites in the early post-operative period may indicate a major injury to the bile ducts". As has been stated by opposite party No. 2 Dr. Krishna himself that he is highly educated and experienced person, we feel it was all the more necessary for him to have been more vigilant and cautious when this operation showed signs of failure or post operative complications, knowing fully well the consequences of such a situation if immediate ERCP was not done.

THE very fact that there had been biliary drainage after repeated operations indicates that there had been something wrong during the course of operation and urgently required ERCP test, but Dr. Krishna avoided giving this advice for reasons best known to him or probably to avoid adverse publicity of failure of operation performed by him. In II (1992) CPJ 764, M. Arunachala Vadivel & Ors. v. Dr. N. Gopalkrishanan submitted by Dr. Krishna himself, it is stated that "negligence can be attributed to a surgeon only if his mistakes are of such a nature as to imply absence of reasonable care and skill on his part". Avoidance of giving an advice for immediate ERCP test implies absence of reasonable care and skill on Dr. Krishna''s part. He drastically compromised patient''s safety in his personal interest. In the same citation it has been further held that the burden of establishing negligence is on the complainant, and the complainant has not only to establish negligence on the part of the medical practitioner, but also the proximate casual connection between the alleged negligence and injury. No doubt in the instant case, the complainant has simply alleged in his complaint that non-applicant No. 2 was negligent in providing post-operative care on and after 23.3.1995 and has not explained in detail as to how he was negligent in this connection we find that in 1986-1996 CONSUMER 1685 (NC), the Hon''ble National Commission has held as under in para 14 of their order : "The Consumer Forums have to protect the interests of consumers and would be within their rights, if any deficiency in service is noticed from the facts disclosed in the complaint sent by them but which the consumer had failed to formulate and articulate in the complaint. It need hardly be emphasized that Consumer Forums cannot allow new facts to be introduced and they must confine themselves to the facts already placed before them."

IN the instant case no new facts are being introduced. The deficiency of not advising ERCP test is already established by record placed before us and Dr. Krishna also realises the importance of ERCP test else would not have repeatedly stressed the importance of ERCP test and would not have fakely pleaded that he had advised ERCP test on 22.4.1995 but the complainant did not follow his advice.

COMING to the deficiency on part of opposite party No. 1 Bajaj Nursing Home, though not alleged in the complaint, we find the opposite party No. 1 is equally deficient in not issuing a discharge certificate prescribing post-operative care, as was issued by Rajesh Sharma''s Nursing Home (Annexure 15). Had this been done and had ERCP test been advised in discharge slip/certificates a precious life may probably have been saved by further treatment after ERCP done immediately after discharge from Bajaj Nursing Home on 22.4.1995. It is a Nursing Home and not a Hotel. It cannot get away with its responsibility alongwith that of the treating surgeon to issue a proper discharge certificate prescribing post-operative care and treatment. The argument of the opposite parties that the complainant is a second category of heirs to the deceased is of no avail since we find that the complainant was "beneficiary" of the service hired by him on payment of consideration by himself. Similarly in view of the decision of the Hon''ble Supreme Court as contained in AIR 1996 SC 2111, Poonam Verma v. Ashwin patel this argument is also not tenable that this dispute involving intricate problem is not maintainable before this Commission.

There is nothing on record to establish any kind of negligence on the part of opposite party No. 3. Hence complaint against opposite party No. 3 is dismissed.

WE do not hold opposite party No. 1 and No. 2 responsible for the death of the patient Smt. Pramila Kohli but we hold them (opposite parties Nos. 1 and 2) responsible for deficiency in post-operative care after laparoscopic cholestectomy which required urgent ERCP test, due to excessive biliary drainage for reasons best known to them, none of the two, advised urgent ERCP test drastically compromising patient''s life. WE, therefore, direct opposite parties Nos. 1 and 2 jointly and/or severally to pay to the complainant a compensation of Rs. 50,000/- for deficiency in post-operative care after laparoscopic cholestectomy and to pay Rs. 5,000/- as proceedings expenses. WE further direct that this amount shall be paid within two months from the date of communication of this order, failing which they shall pay interest at the rate of 12% p.a. on this amount till actual payment. Complaint is allowed. Opposite party Nos. 1 and 2 held responsible for deficiency in post-operative care and further held jointly and/or severally liable to pay Rs. 50,000/- as compensation and Rs. 5,000/- as proceedings expenses. Complaint dismissed quo opposite party No. 3. Complaint allowed with costs.