Raj Kumar Garg (Dr.) and Anr. vs Radhey Sham and Ors.

ON 7.12.2009, the deceased Meeran, wife of Radhey Sham, the complainant was diagnosed as a case of Gall Stones by Dr. Raj Kumar Garg and Dr. Kamlesh Garg, the OP Nos. 1 and 2. She was operated on 13.12.2009 by OPs -1 and 2, which was not successful. The OPs also failed to stitch the GB properly, there was leakage, which the OPs 1 and 2 could not stop. Her condition further deteriorated due to infection and died on 22.1.2010. Complainant alleges that OPs -1 and 2 were not competent to operate and they did not have any Degree or Diploma in Surgery and hence his wife died due to negligence on the part of OP. The Complainant has lost consortium, having three minor children who have deprived of love and affection of their mother due to negligence of OPs. He has also sustained mental agony and financial loss. The OP has failed to compensate the Complainant. Hence, a complaint was filed before District Consumer Disputes Redressal Forum (in short, ''District Forum''). The District Forum allowed the complaint and directed the OPs -1 and 2 to pay Rs. 3,00,000 as consolidated compensation.

THE OP preferred an appeal FA No. 822/2011 before State Consumer Disputes Redressal Commission (in short, ''State Commission'') which was dismissed. Aggrieved by the order of State Commission the OPs filed this revision petition.

WE have heard the Counsel for the parties and perused the hospital records of Kumar Divine Hospital and Heart Centre, i.e. the hospital of Petitioner/OP. The Counsel for the OP argued that, the operation of gall bladder (cholecystectomy) was performed by a surgeon Dr. Maninder Singh (OP -3), which was assisted by the OP -1. The gall bladder specimen was sent for Histopathological Examination (HPE) to the Pathologist Dr. Monika Dixit, of Dr. Monika''s Lab, Bhatinda, who reported it, as a case of adenocarcinoma (cancer), on 15.12.2009. Thereafter, on 6.1.2010, the patient Meeran was referred to cancer hospital at Bikaner for further management. Hence, there was no negligence in treatment and care taken by OPs.

THE Counsel for the Complainant resisted the contention of OPs and contended that the death of wife of complainant was due to negligence of OPs because of lack of proper care, delay and no proper reference to the cancer hospital, in time. On perusal of hospital records, we found that OPs 1 and 2 are qualified doctors (physicians) and the OP No. 3 is a qualified surgeon (M.S.). The OP -3 is a visiting Surgeon to the said hospital who operated Smt. Meeran, wife of the Complainant. The said surgery was a complicated one and the GB was adherent. During operation OP -3 called OP -1 in the operation theatre, to assist him. After operation, a tube drain was put in the abdomen and abdomen was closed in layers, after obtaining complete homeostasis. The Operative (OT) Notes were written by OP -3; which clearly shows that the surgery was performed by Dr. Maninder Singh and OP -1 had just assisted. This was also supported by the affidavit of Dr. M.L. Kapoor, Anaesthesiologist.

WE have perused the Medical Board report of P.G.I. Chandigarh, which also do not support the Complainant''s allegations. The report states that - - The patient had persistent bile leak and repeated ultrasound was done on 21.12.2009, which reported as normal CBD. Bile Stent was considered by gastroenterologist, which was not put on histopathology report of adenocarcinoma and the patient was referred to Bikaner. Preoperative ultrasound report states that the GB was thickened with multiple hyper echoic acoustic shadows with CBD 7 mm in diameter. The patient was readmitted on 5.1.2010 at Kotkapura with distension of abdomen and 150 ml of haemorrhagic fluid was drained. The patient was referred to Cancer hospital on 6.1.2010 and died on 22.1.2010.

We do not find any findings suggestive of negligence in treatment.

WE have referred to standard Surgical and Pathology books to know about prognosis in case of Adenocarcinoma of Gall bladder. The patient Meeran was diagnosed as a case of adenocarcinoma and subsequently she developed malignant ascites. Therefore, there was very poor prognosis. For the final diagnosis after surgery, the histopathology study and the reporting will normally take 3 to 5 days. In this case, the HPE dated 15.12.2010 revealed it as adenocarcinoma and thereafter, it was advised to take her to Cancer Hospital, Bikaner. It was not a delay in reference. The advice was not followed and she expired after a period of 1 1/2 months. Hence, in our opinion, the death of patient was neither due to wrong surgery nor any delay in reference to cancer hospital. The condition of patient deteriorated as she developed malignant ascites. Thus, as per medical literature the prognosis in such a case will be extremely poor and very remote chance of survival for 1 -2 months. What constitutes Medical Negligence, is now well established by the Hon''ble Supreme Court of India and by several orders of this commission. In the Bolan''s case (Bolam v. Frien Hospital Management Committee,, (1957) 1 WLR 582). The locus classicus of the test for the standard of care in law, required of a doctor, developed from this landmark case. Mr. Justice McNair, in his direction to the jury, said: [a doctor] is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art... Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.

IN the case of Kusum Sharma v. Batra Hospital, : II (2010) SLT 73 : : 1 (2010) CPJ 29 (SC), discussed several principles to decide negligence. The relevant para is reproduced as: (xi) The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.

IN view of above discussions, we are of considered opinion that, the surgery was performed by OP -3, a qualified surgeon. Specimen was sent to HPE examination and after confirmed diagnosis of malignancy (cancer), patient was referred to Cancer Hospital. This is a standard of medical practice and no negligence. Hence, orders passed by both the Fora below are set aside. The RP is allowed and complaint is dismissed. The parties are directed to bear their own costs.