Selvamani vs K.P. SINGH

THE complainant is the appellant. THE case of the complainant is as follows: THE complainant, who was suffering from abdomen pain from 1999 consulted the O.P. No. 1 during the month of April, 1999 for treatment. O.P. No. 1 told the complainant that he was suffering from chronic Cholecystitis with cholestithiasis, a disease with regard to gall bladder due to formation of gall stones. THE doctor advised the complainant to undergo laparoscopic surgery for the removal of gall stones. He also directed him to get admitted in the hospital of O.P. No. 2. Accordingly, the complainant was admitted in the hospital on 21.4.1999. THE operation was conducted on 21.4.1999 by O.P. No. 1 in the hospital of O.P. No. 2. THE complainant incurred Rs. 30,000/- towards operation. THE complainant was discharged from the hospital on 27.4.1999. After the operation, O.P. No. 1 assured that the complainant was fully cured and that there would be no further treatment. THE complainant was continuing the treatment with medicines prescribed by O.P. No. 1. After three months of operation, the complainant again suffered pain in his abdomen. When he consulted O.P. No. 1 on 12.8.1999, he was advised to take scan. THE scan report showed gall stones. O.P. No. 1 prescribed some medicines stating that the stones would disintegrate soon. THE size of the gall stones as shown in the C.T. Scan report which taken prior to laparoscopic surgery was 9 m.m. whereas the size of the gall stones were 11 m.m. this time. But the O.P. No. 1 stated that there are no problems and it would disintegrate soon. On 26.2.2000, the complainant went to Chennai for attending his relative''s function. When he suffered pain there, he was taken to clinic of Dr. Rajan, who admitted him in Billroth Hospital, Chennai. After taking C.T. Scan the doctor advised the complainant to undergo surgery in gall bladder. THE operation was conducted on 29.2.2000 and the stones were removed from the gall bladder. After the treatment, the complainant was discharged on 17.3.2000. Towards the operation, stay and accommodation, transport and medicines, the complainant incurred expenses to the tune of Rs. 55,000/- O.P. No. 1 assured that by undergoing laparoscopic surgery, the gall stones would be removed from the gall bladder. THErefore, the complainant underwent laparoscopic surgery. But due to ill-advice and improper treatment and surgery by O.P. No. 1, the complainant suffered unwarranted expenses, pain and mental agony. But for the deficiency act of the O.P. No. 1 in giving wrong advice, treatment and conducting improper operation, the complainant would not have suffered monetary loss to the tune of Rs. 55,000/-. THErefore, the O.P. may be directed to pay Rs. 85,000/- and also compensation of Rs. 40,000/- with costs.

THE case of the O.P. No. 1 is as follows: THE O.P. No. 1 advised the complainant to undergo laparoscopic surgery for removal of gall stone. He came to the hospital on 20.4.1999 with symptoms of calculus cholecystitis. It was found that stones in the gall bladder were to be removed by safe and proper method. THE gall bladder was deeply adherent to its liver bed and the dissection would be very difficult and by the established procedure, the stones in the gall bladder could only be removed by safe surgery and laparoscopic modified sub-total cholecystectomy. THE complainant fully understood the process of approach and agreed to undergo the said type of surgery. after tackling the cystic vessel and cystic duct, the gall bladder was partially exercised leaving its liver bed wall on the liver. Gall bladder was sent for hitopathological examination. THE post-operative period was smooth. THE stone was removed on 24.4.1999 and he was discharged from the hospital on 27.4.1999. After the above surgery, the complainant attended the clinic with a mild pain on the portal. O.P. No. 1 advised him to take usual antacids and analgesics and thereafter there was no complaint. It was when he so complained to the O.P. in August, 1999, he was again examined. THE Sonar Examination was also conducted which revealed Sonar stones on the gall bladder bed on the liver. THE O.P. No. 1 advised him that he might get admitted again in the event of lack of improvement for the purpose of open surgery. THEre is absolutely no fault and there was no ill-advice on the part of the O.P. No. 1. It was only a chronic condition of the patient which developed by his own physical condition that warranted the treatment at Billroth Hospital, Chennai and it was not on account of any improper treatment of the O.P. THEre was no deficient act on the part of the O.P. No. 1. If the complainant on account of his physical condition could develop further problem that cannot be misguided to be on account of improper operation by this O.P. THE O.P. No. 1 is not liable for any compensation inasmuch as his treatment did not result in any kind of suffering nor was it a wrong treatment at all. No oral evidence was let in by both parties. On the side of the complainant, Exs. C1 to C15 were marked. On consideration of documentary evidence and materials, the District Forum has come to the conclusion that there was no deficiency in service on the part of the O.P. No. 1 and ultimately the District Forum dismissed the complaint without costs. Aggrieved by the said order, the complainant has filed this appeal.

The order sheet of the case will show that the appellant did not appear on number of hearings. On 10.12.2003 also there was no representation for the appellant. As there was no representation for the respondent on that day, this Commission posted the case for orders. The respondent filed application to reopen the appeal and hear his arguments. Even today, there is no representation for the appellant. In the above circumstances, on hearing the arguments of the respondent and perusal of materials available on record, the appeal has to be disposed of on merits.

THE respondent No. 1 is a consultant surgeon in the hospital run by respondent No. 2. THEre is no dispute that the complainant was admitted in the hospital of 2nd respondent on the advice of the 1st respondent for treatment in the abdomen and that as there was stones in the gall bladder, the appellant/complainant was advised to undergo laparoscopic surgery. It is also admitted that on 24.4.1999 the appellant/complainant was operated by 1st respondent for calculus cholecystitis through laparoscopic and that he was discharged on 27.4.1999. THE complainant did not suffer any pain for about 3 months. It is also admitted that the complainant was taking medicines after operation as prescribed by the respondent No. 1. It is not in dispute that when the complainant complained of pain in the abdomen, he was subjected to Sonar scan. Ex. C7 is the report of Sonar scan. It is reported that there was thickening of residual wall markedly and calculi (calufication) adherent to the wall reen and that he was put on medicine. But when the complainant got severe pain on 26.2.2000 while he was at Chennai, he was examined by Dr. Rajan, who admitted him in Billroth Hospital, Chennai. It is not disputed that open surgery was conducted in the hospital on 29.2.2000 and that the stones were removed from the gall bladder. It is contended by the complainant that he had to spend Rs. 55,000/- for the second surgery and that due to improper treatment and ill-advice of the respondent No. 1, he had to undergo the second surgery.

AS the appellant has come forward with a plea that the second surgery was necessitated due to the negligence of the 1st respondent, the burden is upon him to substantiate the same by acceptable materials. It is well settled that in the case of medical negligence the specific act of negligence should be alleged and proved. It is also well settled that from the mere fact that the second operation or surgery was conducted, it cannot be readily inferred that due to the act of the doctor, who performed the first operation, the appellant sustained damages and mental agony. Even in the complaint the allegations stated therein do not constitute any negligence on the part of the first respondent. All that is alleged in the complaint is that the first respondent assured that by undergoing laparoscopic surgery, the gall stones could be removed from the bladder and that due to the ill-advice and improper treatment, the complainant suffered unwarranted expenses, pain and mental agony. Absolutely there are no materials to substantiate the plea of the complainant that performing laparoscopic surgery would constitute improper treatment. On this aspect of the case, the learned Counsel for the first respondent has drawn our attention to the observations found in the Indian Journal Surgery issued by the ASsociation of Surgeons of India dated March-April, 2001. In the above article, it is observed thus: "Laparoscopic modified sub-total cholecystectomy is safe and effective alternative to open conversion with added advantage of minimal invasive therapy in management of difficult gall bladder."

The presence of stones in the gall bladder leads to infection called cholecystitis. The laparoscopic surgery for gall bladder involved removal of gall bladder along with stones. But if the gall bladder has adhesions to the liver, its removal may lead to injury to the liver and in such situation the posterior wall of the gall bladder may be left with the liver and the rest of the gall bladder only may be removed. It is, thus, seen that laparoscopic surgery is one of the methods adopted in the case of removal of stones in gall bladder. In this case, it is specifically alleged by the first respondent that gall bladder was deeply adherent to the liver bed that dissection would be very difficult and that, therefore, the laparoscopic surgery was adopted. As the operation conducted by the first respondent was approved and sanctioned by medical science, it cannot be stated that the first respondent tenderend ill-advice to the appellant to undergo the above surgery. From the mere fact that the complainant had to undergo the second surgery for removal of stones, it cannot be inferred that due to the act of the first respondent in performing the operation, the stones were formed in the gall bladder. Formation of stones in the bladder would depend upon the physical condition of the patient. The appellant has not examined any expert doctor to show that even in the first instance open surgery would have been the best treatment and that in that event the stones would have been removed fully without any injury to the liver. Therefore, looked from any angle it cannot be contended by the appellant that he had to undergo laparoscopic surgery due to ill advice of the first respondent and that the above surgery necessitated the appellant to undergo the second surgery at Billroth Hospital, Chennai. The learned Counsel for the respondent No. 1 has also drawn our attention to the report of the Billroth Hospital, which is marked as Ex. C11. It is stated therein that initially laparoscopic tried and due to dense adhesions open procedure done. Electric sonar surgery was conducted on 19.4.1999. It is not stated anywhere that the treatment given to the appellant by the first respondent was improper. As already stated, it is not established by the appellant that but for the operation conducted by the first respondent, he would not have spent another sum of Rs. 55,000/- in undergoing the second surgery in Chennai Hospital. As the first respondent has performed operation in accordance with the sanctioned procedure, we are unable to accept the contention of the appellant that there is deficiency in service on the part of the first respondent. On this aspect of the case, the learned Counsel for the first respondent has also relies upon a judgment of the Supreme Court reported in 2002 (1) CPR 25. The Supreme Court has observed thus: "This is the legal position of the standard of care required by a doctor. A doctor will not be 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 and if he has acted in accordance with such practice merely because there is a body of opinion that takes a contrary view will not make him liable for negligence."

Taking into consideration, the materials on record, we have no hesitation in holding that the appellant failed to establish that there is deficiency in service on the part of the first respondent. We see no ground to differ from the finding rendered by the District Forum. We hold that there are no merits in the appeal.

IN the result, the appeal is dismissed. The parties are directed to bear their respective costs. Appeal dismissed.