S.P. GUPTA & ANR. vs SUKHDEV RAJ KAUSHAL & ANR.

The complainant, Mr. Sukhdev Raj Kaushal (herein referred to as "the patient") was suffering from gall bladder stones since June, 2000 and first time he contacted the opposite party-1, Dr. S. P. Gupta (OP-1) on 05-03-2007. Clinical examination and ultrasonography (USG) study, revealed a single gall stone with thickened gall bladder wall, a part of common bile duct visualized. The radiologist advised CT scan for further details. The OP-1 advised for laparoscopic surgical removal of gall bladder and the stone. Accordingly, on 07-03-2007 the patient got admitted in OP''s Nitin Nursing Home. On 08-03-2007, the OP 1 performed laparoscopic operation, but due to some complication the said operation was converted into laparotomy (open surgery). The patient lost 1500 ml of blood, hence 4 units of blood was demanded. After operation Dr.Neena Gupta (the OP2) disclosed to the family members that, the complication arouse because 99% it was a case of Carcinoma gall bladder and vein cut during operation was properly sutured. The patient suffered vomiting and loose motions during the hospital stay. According to the complainant, though there was excessive leakage of bile through the drain for three months, the OPs did not pay any heed to these complications. As there was no improvement, the patient took discharge on 15.03.2007 on his own. Thereafter, he took treatment in Rajindra Hospital, Patiala, and from where he was referred to PGI, Chandigarh for ERCP and further management. He was treated at PGI from 23-03-2007 to 17-04-2007. Thereafter, he took opinion from Sir Ganga Ram Hospital at New Delhi. It was diagnosed as post cholecystectomy biliary fistula and stricture of left hepatic duct. On 02-05-2007, left hepaticojejunostomy Roux-en-Y surgery was performed. Patient remained hospitalized till 16-05-2007. Thus, the complainant alleged that the OP-1 failed to have the proper investigations done; there was no urgency to conduct the operation without proper diagnosis;the laparoscopic surgery was performed by ignoring standard guidelines; OP-1 ignored to rule out Carcinoma gall bladder by specific investigations and that OP-1 had wrongly diagnosed the patient as suffering from Mirazz''s syndrome. Under these circumstances the complainant filed a complaint before the District Consumer Disputes Redressal Forum ( in shortthe "District Forum"), Patiala.

The District Forum allowed the complaint and awarded total compensation of Rs.9,02,680/- with interest at the rate of 10% per annum from the date of filing of complaint, alongwith costs of Rs.30,000/-. The said amount was directed to be paid by OP 3 on behalf of OPs 1 & 2

Aggrieved by the order of the District Forum, both the parties preferred Appeals before the Punjab State Consumer Disputes Redressal Commission (for short, the "State Commission"). The complainant filed FA 283/2012 for enhancement of compensation whereas, the OPs filed FA 288/2012 for dismissal of the complaint. The State Commission dismissed both the appeals. Hence, this revision petition by OPs No 1 and 2.

We have heard learned counsel both the parties. Dr. Gupta (OP-1), one of the petitioners was also present. We have allowed Dr. Gupta to explain the aspects relating to the treatment and operative details. Learned counsel for the petitioner vehemently argued, that the operation was performed after taking informed consent, with standard care. During laparoscopy, hepatic vein was cut; therefore, the OP-1 had to convert the laparoscopic procedure into an open surgery which was informed to the patient''s relatives and their proper consent was also taken. The bleeding had stopped, post-operative period was uneventful; at the time of discharge the patient was ambulatory and quite well and therefore, there was no negligence on the part of the treating doctor. The counsel further

submitted that, it is a known complication of gall bladder surgery. OP-1 properly treated the patient. Hence, there was no negligence on the part of petitioners. OP discharged the patient at the insistence of the patient and his relatives.

The complainant, in person, on the other hand, submitted that medical records are manipulated; the history recorded by OP-1, that the gall stone symptoms were since June 2000, was incorrect, in as much as the patient was suffering from the said problem only from 2006; it was not an emergency, to perform the cholecystectomy operation, but OP-1 falsely made them to understand that it was an emergency, the patient approached OP-1 on 05-03-2007, he advised Liver function tests (LFT), repeat USG and planned for laparoscopic surgery after neurologist consultation. He brought our attention to the prescription (OPD Slip), the USG and the CT scan report. The complainant further submitted that, OP-1 did not advise CT scan, but he got it done on his own volition with the advice of ultrasonologist, Dr. S.P.S. Narula. OP-1 did not advise treatment for 10 days prior to surgery; also the prescription register is devoid of details of prescription against his name. Thus, OP-1 performed operation in a hurry without proper investigations, which resulted in multiple complications and further sufferings. He further argued that the date on the consent form is falsely mentioned as 08-03-2007, as the same had been taken 3 days prior to the operation. Complainant producedmedical literature from the standard medical textbooks like "Surgery of the Liver, Biliary tract and Pancreas by Sanders", "A concise Textbook of Surgery by K. Das", "The Medical Negligence and Compensation" by Venkatrao", "Grey''s Anatomy".

We have perused the evidence and the medical record from OP hospital, Rajendra Hospital, Patiala, PGI, Chandigarh and Sir Gangaram Hospital, New Delhi. The 1 st USG report (15.6.2006) clearly mentioned about a large calculus (stone) in gall bladder, the 2 nd USG (6.3.2007) showed thickening of gall baldder walls and dense echogenic speck about 1.5 cm. As per CT scan it was, " Cholelithiasis with assymetrical wall thickening of gall bladder as described - ? Neoplastic ?? Due to Chronic Cholecystitis with diffuse fatty infiltration of liver". The ultrasonologist, Dr. S.P.S. Narula specifically mentioned that;

Correlate clinically and with other investigations.

Advised further investigations.

The main question which swirls around is whether the patient was really in need of immediate laparoscopic cholecystectomy?

As per evidence led on affidavit, OP-1 appears to be an experienced surgeon and must have performed several laparoscopic operations during his professional career. The ultrasound reports dated 15-06-2006 and 05-07-2007 clearly revealed that it was a case of cholelithiasis with cholecystitis. The radiologist Dr.S.P.S. Narula expressed his doubt in the USG report and advised for clinical correlation and CT study to rule out neoplastic aetiology. The patient underwent CT Scan without any prescription from OP-1 The CT scan report clearly revealed suspicion of neoplasm and there was specific advice for further investigations and for clinical correlation. The OP-1 would have been more vigilant after perusal of USG and CT scan reports. Thus, it appears that, the OP-1 ignored it, and on his clinical decision, he posted the patient for laparoscopic surgery on the very next day i.e.08-03-2007. It is pertinent to note that if the radiological investigations are suspicious of any neoplastic aetiology, then it was the duty of the treating surgeon to rule out the possibility of any neoplasm in the long standing case of chronic cholecystitis with cholelithiasis. It was Surgeon''s (OP) duty to rule out the possibility of neoplasm whether it was benign or malignant before putting a knife. There are several investigations like FNAC, ERCP, MRCP, and/or diagnostic laparoscopy, etc. by which the OP could have formed to a definitive conclusion in this behalf. For one view it was not a case of emergency and therefore, prior to taking up for surgery the OP should have advised ERCP to examine the biliary tract. Also, the Fine needle aspiration cytology(FNAC) would have been more helpful to rule out neoplastic aetiology. If it had turned out to be a neoplasm, then it was the duty of OP to refer the patient to a higher centre for proper surgical intervention. Therefore, in our view, OP-1 performed operation without proper and sufficient clinical investigations and confirmed diagnosis, for neoplastic or non-neoplastic lesion. Thus, it was an act of omission on the part of the said OP-1.

The laparoscopic surgery consists of initial diagnostic laparoscopy. In the instant case during theprocedure, OP-1 noted that the gall bladder and the surrounding structures had dense adhesions and thick duodenal wall. Also, despite doing CT Scan, the OP-1 failed during operation to diagnose Mirraz''s syndrome or any anatomical changes. During the course of operation the hepatic vein was cut, which resulted in severe haemorrhage. Therefore, the laparoscopic surgery was converted into open surgery.

We have perused the inquiry report conducted by the Deputy Commissioner, Patiala. It is inconclusive one.Further, we have perused the discharge slip of Rajindra Hospital, Patiala, it revealed on admission (15-03-2007) the patient''s condition was not satisfactory, two drains were in situ. The t-tube cholangiogram was done, it showed proximal obstruction of CBD. The patient was managed conservatively from 15-03-2007 to 23-03-2007. Then patient was referred on 23-03-2007 to PGI, Chandigarh for ERCP and further management. The OPD slip of PGI clearly mentions about drainage of 400 ml of bile per day. The radiologist report at PGI, Chandigarh dated 28-03-2007 revealed a drain in right hypochondrium and cholecystectomy clips. Thereafter, the patient developed post cholecystectomy biliary fistula and strictures which were treated at PGI, Chandigarh and the patient was discharged.Thereafter, patient approached the Department of Surgical Gastroenterology at Sir Ganga Ram Hospital on 24-04-2007.

The clinical findings of Sir Ganga Ram Hospital are as follows; "Patient developed a biliary fistula with cholangitis after cholecystectomy in March 07 (laparoscopy converted to open due to bleed). ERCP showed partial stricture Rt main hepatic duct and CHD, prominent Rt sided intrahepatic biliary radicals and dilatation of Lt sided intrahepatic biliary radicles. He has been referred further surgical management with the diagnosis of Biliary fistula status T tube with stricture."

The MRI and MRCP were performed, which revealed partial stricture of right main hepatic duct and dilatation of intrahepatic biliary radicals. Therefore, Roux-en-Y Left hepatico-jejunostomy was performed on 02-05-2007 and patient was discharged on 16-05-2007.

It is important to note that, every patient expects reasonable care from the treating doctor, but highest degree of skill and care is expected from the specialist in that subject. The complications could have been avoided, if OP-1 had investigated the patient and made correct diagnosis. It was not an expected standard of practice or reasonable care from OP-1. No doubt the complications were treated by OP-1 properly, but it will not absolve him from the negligence committed by him at the initial stage, for want of proper and adequate investigation.

The Hon''ble Supreme Court in catena of judgments has made clear the doctor''s duty of care and medical negligence. Our view neatly dovetails from the case Dr Laxman balkrishna Joshi vs. Dr Trimbak Bapu Godbole and Anr. (1969)1 SCR 206, the Hon''ble Apex Court observed that, " A person who holds himself out ready to give medical advice and treatment impliedly holds forth that he is possessed of skill and knowledge for the Purpose. Such a person when consulted by a patient, owes certain duties, namely, a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give, and a duty of care in the administration of that treatment. A breach of any of these duties will -support an action for negligence by the patient."

Similarly, in Jacob Mathews Case, (2005) 6 SCC 1 it was observed as; "Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (i) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care"

In the instant case, before putting a knife on a patient, it was the duty of surgeon (OP-1) to investigate or advice properly to rule out neoplastic lesion of the gall bladder. The USG reported as "only small part of CBD visualised", but OP-1 did not advise CT scan for evaluation of gall bladder and confirm the stone. In case cancer (neoplasm) was suspected, referral or second

opinion could have been more helpful to plan proper surgery. Also, initial conservative treatment was not given to the patient. Thus, in our view it was a deviation from the Standard of practice. Also, it was an act of omission committed by OP-1, thus a medical negligence. It is also pertinent to note that, OP-1 did not disclose bile duct injury, but was firm on his own opinion that the patient was suffering from cancer and Mirazz''s syndrome. 1. Adverting to the quantum of compensation, the complainant submitted during arguments that he had received certain reimbursements towards his treatment from his employer but the said amount should not be deducted from the award of compensation. We are not convinced with this submission. In our view, the complainant cannot have benefit of both the worlds. It would amount to undue enrichment of the complainant. Both the fora below failed to consider this aspect before awarding the compensation.

In view of the discussion above, the complainant is not entitled to receive the expenses incurred by him towards his treatment, but he deserves proper compensation for his suffering and mental agony. Therefore, we modify the order of the fora below and direct the OPs to pay the amount as ordered by the District Forum after deducting the reimbursed amount received by the complainant. The said remaining amount shall carry interest at the rate of 6% per annum from the date of filing of the complaint till realisation. The OPs shall comply with this order within six weeks, failing which, the interest payable from the period the date of pronouncement of this order till its realisation shall be at the rate of 9% per annum.

The revision petition is partly allowed accordingly.