West Bengal

Siliguri

125/S/2013

DORJAY KHANDU BHUTIA, - Complainant(s)

Versus

1. DR. SAUMITRA SAHA, - Opp.Party(s)

15 Oct 2015

ORDER

     J U D G E M E N T

Sri Biswanath De, Ld. President

 

The case of the complainant is that complainant was suffered from abdominal pain from 15.03.2013 known as acute pancreatitis and he was hospitalized from 05.03.2013 to 12.03.2013.  Final diagnosis was​

that complainant had been suffering from cholelithiasis.  On 09.04.2013 laparoscopic cholecystectomy for treatment of cholelithiasis was done and the complainant was subjected to laparoscopic cholecystectomy converted to open cholecystectomy, but complainant was under persistent pain and felt illness.  He was not recovering well from the surgery. 

On 13.04.2013 the complainant underwent ultrasonography of his upper abdomen at OP No.2 referred by OP No.1.  Report dated 13.04.2013 showed encysted collection in gall bladder fossa of the complainant.  The complainant was discharged on 16.04.2013 from OP No.2.  The follow up treatment was done by OP No.1.  On 29.04.2013 OP No.1 removed the drain after intermittent clumping.  On and from 29.04.2013, complainant suffered very much with upward pressure on diaphragm and lunge causing shortness of breath at times fever and vomiting.  The complainant informed the OP No.1, but OP No.1 was unable to pacify the magnitude of pain of complainant.  The post cholecystectomy problems continued, OP No.1 never provided any satisfactory treatment regarding post cholecystectomy problems of the complainant. 

The complainant went to Asian Institute of Gastroenterology in the month of May, 2013.  The complainant was subjected to meticulous evaluation on 17.05.2013 colour Doppler scan of the complainant was carried out at the later place.  The scan showed large collection of fluid in the epigastrium of the complainant on the anterior surface of right lobe of the lever and under right dome of diaphragm.  On 18.05.2013 the Asian Institute of Gastroenterology carried out CT Scan which showed multiple perihepatic and subcapsular fluid collection in right perihepatic space and segments, bilioma and also fluid collection in the Gall Bladder fossa.  The complainant was admitted at the Asian Institute of Gastroenterology on 20.05.2013 and underwent percutaneous drainage of the subhepatic and Gall Bladder fossa collection.  The complainant

 

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then was subjected to Endoscopic Retrograde Cholangiopancreatography (ERCP) on 21.05.2013 at the Asian Institute of Gastroenterology, which showed a small leak at the level of cystic duct and accordingly biliary sphincterotomy and biliary stenting of the complainant was done on 21.05.2013.  On 29.05.2013 the complainant was discharged from the Asian Institute of Gastroenterology with Gall Bladder fossa percutaneous drain and with advice therein and thus from 20.05.2013 to 29.05.2013 the complainant got rid from abdominal pain and thereafter within the month of July, 2013, the complainant was found free from abdominal pain.  The complainant was again subjected to ERCP again on 05.08.2013 and was found normal. 

It is further case of the complainant that entire treatment of the complainant from May, 2013 to August, 2013 at the Asian Institute of Gastroenterology shows that OP No.1 was negligent in carrying out cholecystectomy of the complainant causing trauma and injury to the stump of the cystic duct of the complainant during his cholecystectomy resulting in its leak and thereby leakage of bile and other fluids from liver into the abdominal cavity specially around the liver and gall bladder fossa of the complainant, resulting pain in abdomen. 

It is further case that OP No.1 never subjected the complainant to meticulous evaluation to know the cause of such fluid collection in the abdominal cavity.

The OPs did not discharge their duty to carry out detailed evaluation of the complainant despite complaint by the complainant of the post cholecystectomy problem. 

Being aggrieved by such negligence act of the OP No.1 & 2, the complainant has filed bunch of grievances before this Forum for getting adequate redressal under Section of the Consumer Protection Act, 1986.

Dr. Saumitra Saha, OP No.1 has filed written version denying inter-alia all the material allegations raised by the complainant.  The case of the OP No.1 is that patient gave consent for laparoscopic

 

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cholecystectomy converted to open cholecystectomy due to anatomical abnormality.  After open cholecystectomy as an extra precaution and confirmation and on table cholangiogram X-ray examination of common bile duct with a dye was under at the end of the operation which shows operation was normal, but the gall bladder was densely adherent to the liver and this was the root of all troubles.  It is also case of this OP that patient made steadily recovery during the post operative period as evidence by maintenance of vital parameters such as pulse temperature, blood pressures, urine output from daily clinical nursing report.  Drain output was monitored regularly.  The patient suffered pain only due to open cholecystectomy.  Patient was discharged on 16.04.2013 when drain output became minimum and normal diet was given.  The drain was kept in place and follow up arranged on 22.04.2013, and finally drain was removed on 29.04.2013 as there was no difficulty or uneasiness.  It is case of this OP that for intermittent clumping and for relief of patient follow up was arranged on 22.04.3013 and 29.04.2013 and later on 72 hours continuous clumping and on 29.04.2013 drain was removed.  After that the patient did not come to this OP for further check up.  It is also further case that the patient did not come to this OP from 29.04.2013 to 20.05.2013 with symptoms like pain, nausea, clumping, upward pressure on diaphagram shortness of breath, fever and vomiting between the said period.  It is also case that the patient did not take further medicine or prescription from this OP after 30.04.2013.e

The OP No.1 refute the allegation of the complainant on the following grounds :-

1.      The operation was performed after observation of calculus Cholecystitis with recent episode of gallstone pancreatitis.

2.      Patient gave consent for operation.

3.      Laparoscopic operation was converted to open procedure for the benefit of the patient as there have been anatomical

​abnormality and dense adhesion of gall bladder to liver causing difficult dissection in this case.

4.       Major biliary ductal injury was ruled out by an intraoperative cholangiogram.

5.       Patient was discharged in stable condition. 

6.       The drainage was removed as per need of the patient.
7.       Cystic duct stump leak and bilima is a rare complication of cholecystectomy when there is adhesion and fibrosis of tissues may lead to ischaemic necrosis of the stump.  The OP also states such type of complication can only be detected by ERCP.

8.       Cystic duct stump leak falls within Type A.  The biloma is most suitably treated with USG and ERCP.

9.       A doctor reiterated that if the patient would come to him both those measured could have been taken by appropriate referral locally at an earlier date with earlier recovery.  Accordingly, OP No.1 doctor states that there is no negligence or deficiency on his part in treating the complainant and accordingly OP No.1 prays for dismissal of the complaint. 

OP No.2 i.e., Medica North Bengal Clinic has filed written version denying inter-alia all the material allegations raised by the complainant.  OP No.2 states that complainant was treated in the hospital from 05.03.2013 to 13.03.2013.  Complainant was treated by OP No.1, but OP No.2 did not know what advice the OP No.1 gave to the complainant.  The complainant was admitted on 09.04.213 in their hospital/nursing for operative treatment in the form of Laparoscopic Cholecystectomy under OP No.1.  The OP No.2 is not concerned with allegation of complainant against OP No.1.  There has been no negligence or deficiency in service on the part of OP No.2 in providing any facility or service to the complainant.  There is no cause of action against this OP No.2.  Such averment of OP No.2 is not acceptable to the reasonable man.

​ “Once an allegation is made, that the patient was admitted in a particular hospital, an evidence is produced to satisfy that he died because of lack of proper care and negligence, then the burden lies on the hospital to justify that there was no negligence on the part of the treating doctor and hospital.  Therefore, in any case, the hospital is in a better position to disclose what care was taken or what medicine was administered to the patient.  It is the duty of the Hospital to satisfy that there was no lack of care or diligence.  The Hospitals are institutions, people expect better and efficient service, if the hospital fails to discharge their duties, through their doctors, being employed on job basis or employed on contract basis, it is the hospital which has to justify and not impleading a doctor will not absolve the hospital of its responsibilities” - quoted from judgement of Balaram Prasad Vs Kunal Saha & others on 24.1.02013.

Therefore, legal principles laid by the Apex Court in plethora of cases particularly Savita Garg’s case infers that the hospital authority is vicariously liable for its doctor.  It has been clearly mentioned by their Lordship in Savita Garg’s case that a hospital is responsible for the conduct of his doctor both on the panelled doctor and visiting doctor.  Accordingly, the written version made by OP No.2 is not sustainable and acceptable.

Not to take proper care i.e., not to do any act as per needs of the patient is an omission, the omission is also negligency as contemplated in different catena of decision.        

The OP No.3 Dr. G. Goswami appeared before this Forum and contested the case by filling written version denying inter-alia all the material allegations raised by the complainant.  The case of the OP No.2 is that he has made the report as per image shows by the machine.  The report is that multiple gall stone posterior echo reflective shadows, defuse thickening gall bladder wall, gall bladder oedema, mildly distend.  It is not possible to make comment on adhesion.  He had done

 

ultrasound, the findings were giving according to text book guideline.  It is also contended that this OP had no direct relation with the complainant regarding any service.  Accordingly, OP No.3 prays for order of dismissal of complaint. 

To prove the case the complainant has filed the following documents :-

1.       Discharge Summary of the complainant issued by OPs.

2.       Out Patient Registration in the name of the complainant issued by OPs. 

3.       Report of the complainant dated 05.04.2013.

4.       Report LFT of the complainant dated 05.04.2013. 

5.       Utrasonography (Upper Abdomen) of the complainant dated 05.04.13.

6.       Histopathology report dated 09.04.13.

7.       Ultrasonography (Upper Abdomen) of the complainant dated 13.04.13.

8.       Report dated 14.04.2013 of the complainant. 

9.       Bill dated 16.04.2013 issued by the OPs in the name of complainant. 

10.     Cash Memo dated 16.04.2013, 12.04.2013 and 09.04.2013 in the name of complainant.

11.     Discharge Summary issued by the Asian Institute of Gastroenterology.   

12.     Prescription from May, 2013 to July 2013 of the Asian Institute of Gastroenterology in the name of the complainant.

13.     Color Doppler Scan of the Abdomen of the complainant dated 18.05.2013 at the Asian Institute of Gastroenterology.

14.     CT Abdomen with contrast report dated 18.05.2013 at the Asian Institute of Gastroenterology. 

15.     ERCP report dated 21.05.2013 of the complainant at the Asian Institute of Gastroenterologist. 

​16.     X-ray report of the abdomen of the complainant dated 10.07.2013. 

17.     ERCP report dated 05.08.2013 and Ultrasonography report dated 05.08.2013 of the complainant at the Asian Institute of Gastroenterology. 

18-37.  Some other documents. 

 

The complainant also filed questionnaire which was referred to the Principal, North Bengal Medical College inviting his attention to obtain opinion of Head of the Department, Surgery, regarding questionnaire given by the complainant, and the respected Principal has sent the reply given by Dr. G. Das on 09.04.2014.

Apart from the above evidence i.e., opinion of the expert, the complainant has himself adduced evidence on oath in addition to other documentary evidence i.e., ultrasonography report, discharge summary of North Bengal Medica, Discharge and treatment sheet of Asian Institute of Gastroenterology of Hyderabad.  In evidence-in-chief he stated that on 09.04.2013 he was subjected to Laparoscopic cholecystectomy converted to open cholecystectomy by the OP No.1.  But after that he never felt better and suffered from pain.  On 13.04.2013 ultrasonography was done of his upper abdomen as per advice of OP No.1 and report shows “encysted collection in his gall bladder fossa” and he was discharged on 16.04.2013.  On 29.04.2013 the OP No.1 removed the drain after intermittent clumping.  But after removal of drain, and from 29.04.2013 he sustained developed abdominal distension expressing sensation of fullness, abdominal pressure, pain, upward pressure and diaphagram and lunge and shortness of breath (vide para 7 of chief).  It is also case of the complainant that thereafter problem increased in magnitude and became acute.  Accordingly, in the month of May, he went to Asian Institute of Gastroenterology, Hyderabad.  He was treated there from 17.05.2013 to 29.05.2013, when he was discharged from the later hospital.  Finally, on 06.06.2013 ultrasonography of the abdomen revealed a promising report with small fluid collection and he was treated

 

​in the said hospital till 10.07.2013.  In the month of August, 2013, he was again subjected to ERCP and was found with normal condition.  There was no biliary leak and the biliary stent was removed. 

The entire treatment from May, 2013 to August, 2013, as per allegation of complainant, shows that OP No.1 was negligence in discharging his duty at the time of operation and causes injury to the stump of his cystic duct during the cholecystectomy resulting leak and thereby leakage of bile and other fluids from liver into the abdominal cavity specially around liver and gall bladder fossa for which he never felt better and suffered with pain.  It has been also stated that OP No.1 never subjected the complainant to meticulous evaluation to know the cause of such fluid collection in the abdominal cavity.  The negligent act of the OP No.1 is at the root of all troubles starting from the time of operation till release from OP No.2. 

The complainant further stated that OP intentionally did not carry out detailed evaluation of the complainant despite his complaint of his post cholecystectomy problem and such absence of due care and attention of the OP No.1/doctor who had duty towards his complainant causes much pain and as such the complainant prays to get cost of entire cholecystectomy and post cholecystectomy treatment and compensation and other reliefs.

The complainant also stated in para-48 regarding discharge certificate, discharge summary, pathological report of gall bladder, different medical reports, cash memo, discharge summary and other all documents regarding treatment etc. 

OP Nos.1, 2 & 3 have filed written version but did not adduce evidence.

  Apart from the oral evidence, the discharge summary of the complainant shows that after admission, the Asian Institute of Gastroenterology, Hyderabad made diagnosis of the complainant on 20.05.2013 which is “cystic duct stump leak.  Status post open

 

​cholecystectomy (elsewhere) on 09.04.2013.  The said discharge summary shows drain was removed on 29.04.2013 after intermittent clumping, patient developed abdominal distension and fever after drain removal”. 

In the discharge summary of OP W No.2 dated 16.04.2013 shows that “Laparoscopic cholecystectomy converted to open cholecystectomy under GA on 09.04.2013. 

Specimen sent for Histology.

Findings: Thick walled gall bladder packed with multiple calculi.  Conversion required for abnormal anatomy An accessory cystic duct identified and ligated.  On table cholangiogram showed normal CBD”. 

From expert report Question No.4 of the Head of the Department of Surgery, North Bengal Medical College states in Answer No.4 “cystic duct stump leak” means leakage of bile from cystic duct.  Cystic duct is a narrow small duct that communicates gall bladder with main bile duct, it is usually closed with clips and cut in between the clips during laparoscopic cholecystectomy.  The doctor against states when these clips gets dislodge or becomes loose bile may leak through cystic duct. 

The doctor also states in Question No.5 “cystic duct stump leak is not highly expected, but it may occur occasionally, as complication.  Regarding cause of collection in the gall bladder fossa, the states i) cystic duct stump leak, ii) bile duct injury, iii) unnoticed intestinal injury and three other causes.  But these answers in 6(c) shows there must be an injury i.e., injury in the inner organ near gall bladder.  Bile duct injury is one of complications of cholecystectomy.  Bile duct injury is serious condition, if not treated properly, it may lead to fatal outcome. 

So, from the evidence of expert as well as from the discharge summary of the Asian Institute of Gastroenterology, Hyderabad, dated 29.05.2013, are in unison that there had been cystic duct stump leak and such leak is the root of all latter complication and such leak was caused obviously by injury. ​

 

It is in record that after completion of operation the OP No.1 released the patient on 29.04.2013.  The OP No.1 had obviously legal and moral obligation towards the complainant to his apply his mind to unfold the cause of pain and other symptoms.  Evaluation of the operation would have been supported by ERCP or MRCP or by Doppler scan method, then it would have been disclosed regarding the incompleteness or abnormality of the right liver lobe and gall bladder fossa.  But OP No.1 was so indifference and full of confidence that he discharged the patient only with some oral medicines and without any suggestion of investigation to make himself confirm regarding his alleged successful operation.  But the OP No.1/doctor did not do it and very casually discharged his duty placing reliance only on table cholangiogram (as per discharge summary). 

It is expected from a doctor like the OP No.1 that he must make investigation which was required and as shown in the method of investigation of Asian Institute of Gastroenterology, Hyderabad and not adopting their proper course of treatment, without having any care and caution, the OP No.1/doctor omitted to take appropriate steps which were expected from him having such experience in literature and practical experience.  It is unexpected that a surgeon with a long experience and profound knowledge of surgery shall not discharge his duty without due care and attention taking into mind the life of a man belong to the down trodden section of the society like the complainant who has been compelled to run from North Bengal to Andhra Pradesh bearing with pain in abdomen and anxiety in life, they have run to Hyderabad only to save the life of the complainant for future generation. 

OP W No.2 obviously responsible because he has duty towards the patient from whom he has taken the money.  Government has granted licence for the safety and security of the public also.  In this respect, OP No.2 should be more vigilant to watch the performance of the doctor for the common people, who is unable to go to a nursing home or hospital

 

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where more payment is necessary for better treatment.  The deficiency in service obviously exists against the OP No.2/doctor.  

OP No.3 has made parte, but he is no way connected with the fact of this case because he has written what he had seen in the image.  Any stretch of imagination of fact and law cannot tide OP No.3 with this case.

So, after great deal of discussion and observation over the material on record mainly evidence, treatment sheet, nature of the patient, nature age and other pathological tests and investigation conducted upon the complainant and operation which has been done upon the complainant, we are firm opinion that OP No.1 is liable for deficiency in service and negligence of service towards the complainant.  The perturbed act on the complainant is sufficient to show the presence of negligence.  The principle res ipsa liquitor is latently present in this case.

OP No.2 is also responsible for deficiency in service and negligence.

OP No.3 is not responsible in any way.

In this case the complainant has prayed for cost of treatment in Siliguri and in Hyderabad.  The treatment includes the travelling expenses from Siliguri to Hyderabad for which Xerox copies of tickets have also been filed.  The complainant has filed huge copies of vouchers to substantiate his claim of Rs.45,732/- from the OP No.1 & 2. 

The complainant also suffered for mental pain, agony, harassment and litigation cost.

We have gone through the record, we are allowing the first prayer for expenses for entire cholecystectomy and post cholecystectomy treatment at OP No.2 and the amount is Rs.45,732/-. 

Second prayer expenses for communication from Siliguri to Hyderabad, and lodging at Hyderabad on each occasion.  After perusing the Air Tickets and room rent therein, which have been supplied by the complainant, we think Rs.1,00,000/- is sufficient for their expenses as per documents. 

The complainant is also entitled to get Rs.20,000/- for mental pain, agony and harassment.

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A sum of Rs.15,000/- is sufficient of litigation cost. 

In the result, the case succeeds.

Hence, it is 

                    O R D E R E D 

that the Consumer Case No.125/S/2013 is allowed on contest in part against the OPs. 

The complainant is entitled to get Rs.45,732/- for expenses for entire cholecystectomy and post cholecystectomy treatment at OP No.2.

The complainant is also entitled to get Rs.1,00,000/- towards entire episode of post-cholecystectomy treatment and expenses for communication from Siliguri to Hyderabad, and lodging at Hyderabad on each occasion.

The complainant is also entitled to get Rs.20,000/- towards compensation for mental pain, agony and harassment.

The complainant is also entitled to get Rs.15,000/- for litigation cost. 

The OP Nos.1 & 2, who are jointly and severally liable, are directed to pay Rs.45,732/- by issuing an account payee cheque in the name of the complainant for expenses for entire cholecystectomy and post cholecystectomy treatment at OP No.2 within 45 days of this order.

The OP Nos.1 & 2, who are jointly and severally liable, are directed to pay Rs.1,00,000/- by issuing an account payee cheque in the name of the complainant towards entire episode of post-cholecystectomy treatment and expenses for communication from Siliguri to Hyderabad, and lodging at Hyderabad on each occasion, within 45 days of this order.

The OP Nos.1 & 2, who are jointly and severally liable, are further directed to pay Rs.30,000/- by issuing an account payee cheque in the name of the complainant towards compensation for mental pain, agony and harassment, within 45 days of this order.

The OP Nos.1 & 2, who are jointly and severally liable, are further directed to pay Rs.15,000/- by issuing an account payee cheque in the name of the complainant for litigation cost, within 45 days of this order.

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Failing which the amount will carry interest @ 9% per annum from the date of institution of this case till full realization. 

In case of default of payment as ordered above, the complainant is at liberty to execute this order through this Forum as per law. 

Copies of this judgment be supplied to the parties free of cost.