V.K. Mehta (Col.) and Mehta Urology and Surgical Centre vs VIMLA DEVI

FACTS of the case are: The Complainant, Smt. Vimla Devi (patient) underwent operation of Cholecystectomy on 8.10.2004 at Dr. Mehta Urology & Surgical Centre, (OP -2). It was performed by Dr. (Col.) V.K. Mehta i.e. OP -1. The Complainant was assured of not likely any post -operative complications. During the operation, there was an electric failure which took 15 -20 minutes, for restoration during which, the Complainant was lying in the Operation Theatre (OT), with incision of surgery. It was also alleged that the Complainant would have lost her life if the electricity would have not been restored. The Complainant''s allegation was that no basic facilities, like electricity back up in OP -2 hospital were provided. After the operation, she suffered severe pain in stomach for which, the OP -1 assured that it was only due to gas Her condition further deteriorated and she developed high grade fever, for which the OP -1 did not attend but discharged her, on 11.10.2004. However, the complainant (patient) again approached the OP -1, on 13.11.2004, and she was kept under observation for 4 days. It was noticed that her condition worsened and pus started coming out of operated site. Therefore, on 17.10.2004, OP -1 again operated upon her, but the pus and faecal material started pouring, out from the incision site. To stop the discharge, the OP -1, again operated on 19.10.2004, but the condition of patient worsened further. It was the allegation that OP continued misleading the patient and her relatives about her condition; therefore, to save her life, she was shifted to Batra Hospital on 21.10.2004, and again operated on 22.10.2004, and discharged on 6.11.2004. Subsequently, she was kept in Ashoka -Hospital for a day and then for post -operative care, she was kept in Safdarjung Hospital from 7.11.2004 to 20.11.2004. The complainant''s allegation is that her sufferings are due to negligence of OP -1, during three operations conducted on her, on 8th, 17th and 19th October, 2004, and incurred huge expenses for treatment at Batra Hospital, Ashoka Hospital. Therefore, the complainant filed a complaint before District Consumer Disputes Redressal Forum (hereinafter, District Forum.) and claimed the expenses in the sum of Rs. 3.1 lakh and Rs. 2 lakh for mental agony. The OPs denied the allegations of any negligence occurred during treatment of the Complainant.

On the basis of medical records and the evidence of both the parties, the District Consumer Forum held the OP guilty of medical negligence, and directed them to pay the compensation, jointly and severally, in the sum of Rs. 3 lacs, plus costs of Rs. 5,000.

AGGRIEVED by the order of District Forum the OP preferred an appeal FA 593/2006 before the State Commission. The State Commission dismissed the appeal, with costs of Rs. 20,000.

HENCE , against the order of State Commission, the Petitioner/OP filed this Revision Petition.

WE have heard Counsel for the both parties and perused the evidence on record, the medical record like progress sheets, the discharge summary of Batra Hospital and the Medical Board''s opinion. We have noticed that the Complainant underwent operation of Cholecystectomy by OP -1 and the post -operative period was uneventful, thereafter, she developed faecal fistula. The OP -1 tried to correct those complications but subsequently she was shifted to Batra Hospital for further surgical management, thereafter stayed at other hospitals for post -operative care. The total period of treatment was from 8.10.2004 to 20.11.2004.

IN this instant case, we need to examine whether OP was negligent in performing the operation and also, thereafter, whether, he failed to perform his duty during post -operative period to treat the patient. The OP hospital is a Government approved centre, with well -equipped operation theatre and adopted latest techniques and appointed qualified doctors. As per records, the operation theatre of OP -2 is connected with double supply of electricity, i.e. inverter and standby generator of 2.5 KV. Hence, allegation made by complainant regarding 15 minutes power failure, during operation is not sustainable.

AS per the hospital records, the surgery of Cholecystectomy was conducted by a team of doctors and it was uneventful and without any complications. The patient was discharged on 11.10.2004, in a good condition. As there was no problem/complication, she was sent home, on that day only. She reported back at 8 p.m. on 16.10.2004, with swelling at Kochar''s incision, site. The pus was aspirated. On 17.10.004, pus was drained under general anaesthesia and corrugated drain was left in gall bladder fossa and the patient was admitted for observation. Thereafter, on 19.10.2004, faeculant discharge was noticed from drain, which was indicative of colonic trauma, therefore, OP -1 operated immediately and exteriorized the injured transverse colon. Afterwards, the OP also discussed the need of Hemicolectomy or revision colostomy. We have perused the expert opinion given by Medical Board of L.N.J.P. Hospital, it is reproduced as follows: (1) Yes, sub clinical/overt colonic injury can happen during difficult cholecystectomy;

(2) Yes, a sub clinical colonic injury may be manifest later, after 6 -10 days;

(3) Yes, the treatment by drainage of abscess and subsequent exteriorization of injured colon is a correct procedure; and

(4) Yes, colostomy has its own complications, but these complications may be related to the procedure as well as the patient related factors.

WE have perused the Operative notes of Cholecystectomy Operation performed on 8.10.2004, by OP -2 and the same are reproduced as: Dated: 8.10.2004

Op - cholecystectomy

Surgeon: Dr. V.K. Mehta

GA Dr. V.F. Sharma

Incision - Kochar Incision

Findings: GB densely adherent to liver, colon and duodenum, omentum

Procedure: GB was meticulously separated from adjacent structures by suture ligature and cautery and during the course of dissection GB opened up and stones popped out of it. Calculi were removed GB was dissected upto the cystic duct Calot''s triangle dissected. Cyctic duct and cystic artery litigated doubly hemostasis ensured - Cyctic duct and cystic artery ligated doubly hemostasis ensure. Tube drain left.

ANOTHER document on file is the discharge summary issued Batra Hospital dated 6.11.2004 which reads as follows: This normotensive, non -diabetic lady admitted with h/o - had cholecystectomy for gall stones on 8.10.2004, outside. Post -operatively she developed swelling over right subcostal region, diagnosed as intra parietal abscess which was drained by same doctor on 17.10.2004. Subsequently, she developed feculent discharge from drain site. On 19.10.2004 colostomy (hepatic flexure) was done under GA by same doctor. She was admitted here with c/o pain and fever with foul swelling (faeculant) discharge from operation site, had right subcostal incision with indurated stitches with inflammation, transverse colon brought out via centre of wound had become gangrenous with slough and was retracted, the area around it (right flank) was devitalized - - necrotising cellulites, a drain placed was draining faeculant material. Blood investigations revealed raised TLC and low Hb (reports in Master chart) she was febrile, in septicaemia, with altered coagulopathy. She was given antibiotics, analgesics and supportive treatment and blood transfusion. After proper work up she was taken for surgery on 22.10.2004. Midline laparotomy made, right -subcostal incision opened, gangrenous edges, devitalised slough in subcutaneous tissue sheath and abdominal muscles debrided, intraparietal thick purulent collections drained. There were thick sub hepatic, Parocolic and pelvic intra -abdominal collections of pus, mesentery was thickened, omentum was inflamed around proximal colon. The colostomy area hepatic flexure and transverse colon was gangrenous, leaking faecal matter from proximal and distal stomas of colostomy with sloughing of mesentery of colostomy site, proximal and distal stomas of colostomy with sloughing of mesentery of colostomy site, proximal and distal stomas were apart, whole colostomy area had retracted intra -abdominally. So right hemicolectomy was done and side to side ileotransverse colon anastomosis was done in two layers. Thorough peritoneal toileting was done, draining the pelvic and abdominal collection. Midline laparotomy was closed after keeping drains. Right subcostal incision could not be approximated because of loss of tissue of abdominal wall; hence, it was closed by tension sutures and skin sutures. Subsequently, (postoperatively) she had pus discharge from right incision, for which skin sutures over right subcostal wound were removed. She had residual collection of pus over intraparietal, sub hepatic with abdominal cavity which was drained and slough debrided. She is improving now, is passing flatus and accepting liquid diet. But attendants one willing for discharge of the patient, so she is being discharge on request.

Both the documents mentioned supra (Paras 11 and 12) carry vital importance. We have also referred to Surgical books, reviews and the research articles about Cholecystectomy and the post -operative complications.

NO doubt, the OP -1 is a highly qualified Urologist who possesses M.S., M.N.A.M.S., and the Super -speciality MCh (Urology) and extending his services through his Urology and Surgical Centre (OP -2). As per his written version, the parent before visiting him, consulted the doctors at Safdarjung Hospital, who advised for Cholecystectomy and therefore she approached his centre, for said surgery. We are unable to understand as to how, the OP -1, being a Super -specialist in Urology, accepted the patient of Cholecystectomy and performed the surgery. No doubt, his basic qualification is Surgeon (M.S.); but he is a Super specialist MCh (Uro), which is a specialised branch of Urogenital System, How has he decided to operate on a patient, having a gall bladder disease (Cheolecystitis with Cholelithiasis); which is related to Gastrb -Intestinal Surgery? Even though there is submission of OP -1 that "Surgery was conducted by Team of doctors", but the OT notes clearly go to show that there was only OP -1 with an Anaesthetist There was no single assisting surgeon.

THE OT notes further reveal the findings as "GB densely adherent to Liver, Colon and Duodenum, Omentum. "And the procedure "GB was meticulously separated from adjacent structures by suture ligature and cautery". Therefore, in such instance, the assistance of General Surgeon or an opinion a Gl Surgeon, would have been most crucial and a Gold Standard. The Gl Surgeon would have suggested any alternative mode of surgery or other conservative and definitive line of treatment in such complicated case. But, OP -1 went ahead with the said complicated surgery which subsequently resulted in grave complication. There is no evidence on record to show that, OP -1 was regularly performing Cholecystectomy, in addition to his practice of Urology. As, the gall bladder was densely adherent, the OP -1 should have anticipated the potential complications like thermal injuries or devascularisation leading to such perforation. Just any surgical instruments can harm blood vessels, the instruments used to access the gallbladder can also potentially injure the intestines. Intraperitoneal drains after cholecystectomy are indicated only if the surgeon is concerned about identifying or controlling a possible bile leak and/or haemorrhage, in spite of infrequency, complications secondary to placement of these surgical drains occur. The possibility of bowel injury should be kept in mind, when draining the abdominal cavity, after surgery.

THE main question still swirls around that why the Urologist had chosen the Cholecystectomy? Was it an emergency? Our answer is No. It was an elective surgery. There was no dearth of General Surgeon or Super Specialist in Gastro Intestinal Surgery in Delhi. OP should not routinely hold out as a surgeon, especially when a qualified surgeon is available in the area. We do not find that OP has informed about himself, as a Urologist to the patient or relatives and taken informed consent, in such regard.

HENCE , it amounts to unethical conduct in this present case. The General Surgeon can do any surgery No doubt, if any Super specialist in the field of Surgery, possesses basic qualification as Masters in Surgery (M.S.), it does not mean that he can do any surgery, other than his Super Speciality. For example, whether, is it acceptable that, if a Gl Surgeon, a Cardiac Surgeon or a Neuro Surgeon performs open Prostatectomy (Removal of Prostate) or TURP which results in to injury to urethra or urinary bladder?. For Prostatectomy/TURP the best hand will be Urologist not the other specialist. Hence, there are more chances of any undesirable complications in the patient, which amounts to medical negligence. Therefore, the Superspecialist must restrict or confine to his practice, legally and ethically; then only he can expect good results in elective surgeries. In this present case, during the said surgery, the OP -1 would have either called any Gl Surgeon or have taken assistance of General Surgeons, who are routinely performing Cholecystectomy, Ethically also, he would have referred the patient to the concerned specialist otherwise. It appears to be a case of "Therapeutic Misadventure". Therefore, conduct of OP -1 leads us to think about unethical medical practices. Surgeons live and act within a moral community. Although the clinical and technical features of their work are crucially important, so too, are the more subtle moral dimensions. There are limitations of an individualistic approach against pooled wisdom. In a complex clinical situation, one is ought to judge correctly, when appropriate cross consultations may become necessary and be more beneficial to achieve a suitable outcome. A fresh input, even from a less experienced team member, may be helpful. Cross -consultations from other colleagues should be accepted in the right spirit and should never be denied to a patient.

WE do not agree in toto with the view taken by State Commission undermining the report of Medical Board and considering this case as of res ipsa loquitur. But, in paras 1 and 4 of the said Expert Report mentioned about injury during difficult cholcystectomy and Colostomy cholecystectomy) has its own complications; ''but these complications may be related to the procedure. It is surprising to note that the expert report did not discuss about whether a Urologist can perform Cholecytectomy efficiently?

WHAT constitutes Medical Negligence has been discussed in several judgments of Hon''ble Supreme Court. In the case Malay Kumar Ganguly v. Dr. Sukumar Mukharjee & Ors., : III (2009) CPJ 17(SC) : VI (2009) SLT 164 : III (2009) CCR 558 (SC), wherein it has been observed as follows: Even the matter of determining deficiency in medical service, it is now well settled that if representation is made by a doctor that he is a specialist and ultimately turns out that he is not, deficiency in medical services would be presumed.

Further the Hon''ble Supreme Court in Jacob Mathew v. State of Punjab & Anr., : III (2005) CPJ 9 (SC) : VI (2005) SLT 1 : 122 (2005) DLT 83 (SC) : III (2005) CCR 9 (SC), had concluded that - -

a professional may be held liable on one of two findings : either he was not possessed of requisite skill which he professed to have possessed, or, he did not exercise reasonable competence in given case, the skill which he did possess.

Doctors have a legal duty to comply with the applicable ethical and legal regulations in their daily practice. Ignorance of law and its implications will be detrimental to the doctor even though he treats the patient in good faith for the alleviation of the patient''s suffering. It appears from the document that the patient has incurred total expenditure of about 1.25 lakh (Rs. 25,000 at OP -1. The total, expenditure incurred by the Complainant at Batra Hospital was Rs. 69,705 and subsequently, some expenditure at Ashoka and Safdarjung Hospital). Therefore, it will be just proper and reasonable to award the entire medical expenses incurred and Rs. 1 lakh towards the mental agony. Therefore, in view of entire discussions and observations we find that there was deficiency in service by OP. Accordingly, we dismiss the revision petition, with modification of the order of the State Commission, as follows: The opposite parties are directed to pay the complainant, a sum of Rs. 2.25 lakh, with interest @ 9% per annum, from the date of filing the complaint The said order be complied with, within 90 days of receipt of this order, otherwise it will carry interest @ 9% per annum, till realisation.