Complaint was filed, inter-alia, alleging that for a simple gall bladder stone surgery of Mrs. Susamma Baby, aged 39 years, wife of the complainant, the opposite party No. 2- doctor recommended admission in opposite party No. 1- Hospital with whom he had some arrangement.  Surgery was performed by opposite party No. 2 on 11.1.1998.  On the following day, the opposite party No. 2 left for Guwahati.  After surgery, Mrs. Susamma Baby developed jaundice.  Doctors and nurses attached to opposite party No. 1- Hospital refused to treat her for jaundice saying that she was not their patient. Complainant, therefore, brought her back to the house on 18.1.1998.  She was taken to Military Unit Hospital at 31, Assam Riffles on 23.1.1998 where it was detected that opposite party No. 2 had stitched the common bile duct with cystic duct which was a blunder.  Ultrasound revealed dilated common bile duct (CBD) with an abrupt termination in its mid-portion.  Bilirubin of complainant’s wife went up to 15.9 Mg % due to  the  closure  of  bile  duct.   It was further alleged that an  exploratory  lapratomy  corrective  surgery  was undertaken at Guwahati Medical College.  Hepatico Duodenostomy was done.  It was found that the common bile duct and the common hepatic duct were totally necrosed (damaged and rotten).  Wife of the complainant subsequently developed stricture at the site of anastaniosis for which dilation was attempted and a stent was put which later on fell off and another transanastamotic stent was placed.  During all these surgeries health of the complainant’s wife  further deteriorated.  She started having recurrent cholangities (infection of the common bile duct) and progressive strictures at the site of anastamosis.  These surgeries were done in different hospitals. Ultimately, the complainant had to take his wife for treatment to  Trivandrum Medical College Hospital.  All the attempts to save her failed and she died on 14.2.1999 there.   It was asserted that the death was caused due to the negligence on the part of opposite party No. 2.  It was further alleged that the complainant has two daughters and a son.  Both the daughters are yet to be married.  Son is aged about 15 years.  Complainant’s wife was a pathologist and was also taking care of the manufacturing of soft drink under the name of Bibis bliss/7 Sip.   Complainant’s business is closed as he has been unable to look after it due to illness of his wife.  Direction is sought to be made to the opposite parties to jointly and severally pay to the complainant a total amount of Rs. 55.5 lakhs as detailed in para No. 5 of the complaint. 

          Opposite party Nos. 1 & 2 contested the complaint by filing a joint written version.  It was alleged that Ultrasonography of Mrs. Susamma Baby was conducted in 1995 at 155 Base Hospital (Army), Tezpur, Assam which revealed multi fillings in the gall bladder.  In December, 1997, opposite party No. 2 was consulted and he advised operation for removal of gall stones.   On 11.1.1998, she was taken to the operation theatre in opposite party No. 1- Hospital.  Her abdomen was opened in layers by modified right subcostal incision.  Gall Bladder was found chronically inflamed with multiple adhesions with calculi.  Release of adhesions was done.  Duct first method cholecystectomy was performed.  Abdomen was, therefore, closed in layers.  Post operative period was uneventful.  She was discharged from opposite party No. 1- Hospital on 18.1.998 in normal condition.  It was alleged that Mrs. Susamma Baby was regularly attended till the date of discharge by opposite party No. 2.  Resident doctors working in opposite party No. 1 – Hospital took care of her.     It was denied that she developed jaundice on the following day of the operation or that the doctors in opposite party No. 1- Hospital refused to treat her on the ground that she was the patient of opposite party No. 2 as alleged.  It was stated that on 24.1.1998, complainant’s wife was brought to the clinic of opposite party No. 2 and then opposite party No. 2 diagnosed that she was suffering from mild jaundice and he prescribed certain medicines.  On the advise of opposite party No. 2, the wife of the complainant was admitted in opposite party No. 1 – Hospital on 29.1.1998.  Ultrasonography was done at Assam X-Ray Clinic and Laboratory which showed dilation of Common Bile Duct (CBD) due to blockage of biliary sludge.  Lab report did not mention that cystic duct (CSD) was stitched with the CBD as alleged by the complainant.  Opposite party No. 2 realized that Endoscopic Retrograde Cholengio Panceratography (ERCP) was required for removal of Biliary sludge and since this facility was not available in opposite party No. 1- Hospital, the complainant was advised to take his wife to Guwahati Medical College on 31.1.1998 by opposite party No. 2.  At the time of discharge the wife of the complainant did not have any ailment except jaundice.  Allegation that the rotten and necrosed Common Hepatitic Duct (CHD) and Common Bile Duct (CBD) was anestomosed with the duodenum by Dr. Mukul Saikia on 14.2.1998 in the said Medical College was denied.  It was stated that  necrosed Common Hepatitic Duct (CHD) cannot undergo an Anestomatic operation.  Ultrasonography  report dated 19.6.1998 of Pushpagiri Hospital, Thiruvalla showed the CBD as 7 mm in size and it being normal.  It was stated that the alleged Anestomatic operation in Guwahati Medical College Hospital conducted by Dr. Saikia showed that the stricture was at a new site and not at the site where operation was conducted by opposite party No. 2.  At  Trivandrum Medical College Hospital the Endoscopic Retrograde Colengiography Pancreatography (ERCP) dilation was attempted at the site of the operation which was done at Guwahati Medical College Hospital on 16.7.1998.  Actual cause of death of Mrs. Susamma Baby could not be ascertained without probing the chain of events starting from the date she was admitted to Guwahati Medical College Hospital till her death in Trivandrum Medical College Hospital.  It was denied that the opposite party No. 2 was responsible for the death of complainant’s wife particularly when she had been moving from one hospital to another under the guidance of different doctors and had survived for 13 months after she was discharged from OP No.1-Hospital.  It was further denied that the opposite party No. 2 left Guwahati on the following day of the operation of Mrs. Susamma Baby.  It was also denied that opposite party No. 2 committed a surgical blunder by blocking the common bile duct by stitching it up resulting in internal rot as alleged.  It was, further, denied that the wife of  complainant developed jaundice on 12.1.1998 and she never visited her after operation or that she was a pathologist as alleged. Liability to pay the amount claimed was denied.

          We have heard Shri Ravindra Bana, Amicus Curiae for the complainant and Shri Ananta Goswami, Adv. for the opposite party.

          After the filing of the affidavits by the complainant, Biswajit Roy for opposite party No. 1 and opposite party No. 2  by way of evidence, by the order dated 20.2.2004 the Director, AIIMS was requested to obtain expert’s opinion to ascertain whether there was any lapse on the part of opposite party No. 2 who had conducted cholecystectomy on Mrs. Susamma Baby on 11.1.1998.  Relevant record was sent to the said Authority by the Registry.  Opinion of Dr. T.K. Chattopadhyay, the Director, AIIMS is contained in the letter dated 17.3.2004 sent by the Medical Superintendent of AIIMS to the Assistant Registrar of this Commission.   Omitting immaterial portion, this letter reads thus:-

“Please refer to your letter dated 4.3.2004 addressed to the Director, AIIMS on the subject cited above.  In this connection, I wish to inform you that above mentioned matter was examined by Prof. T.K. Chattopadhyay, Head, Deptt. Of G.I. Surgery, AIIMS.  He has stated that “after going through the records, it is apparent that the patient developed certain complications following choleystectomy at B.K. Memorial Hospital, Tezpur.  This does not seem to be due to accidental ligation of the CBD as revealed by the surgeon’s note of the Guwahati Medical College Hospital. As per this note, the patient developed necrosis of the bile duct.  It is also clear that the complication had been detected and managed accordingly.  The corrective surgery has also been complicated with narrowing of anastomosis as can happen some time.  The patient continued to suffer from the sequelae of such an eventuality.  A number of corrective measures attempted subsequently are all very difficult problems known to have increased risks.  It is unfortunate that the patient developed complications but from the documents provided there does not seem to have any negligence from any corner.”

You are informed accordingly.”

Copy of this letter/ report was ordered to be given to both the parties vide order dated 19.4.2004 and  case was postponed  to 9.9.2004.

On 9.9.2004, the complainant who wanted to file additional affidavit by way of evidence, was given six weeks time to file the same.  Alongwith the affidavit of Dr. A.P. Kuruvilla, the opinion of Dr. Kuruvilla dated 1.8.2004 was filed by the complainant.  This opinion being material is re-produced below in toto:-

“I, Dr. A.P. Kuruvilla, M.S., Dip. NB, MCh. Assistant Professor, Department of Surgical Gastro Enterology, Medical College Hospital, Trivandrum, Kerala, give this expert opinion as per the request submitted by Mr. Baby Zachariah on 21.7.2004, the petitioner of OP No. 99 of 1999, before the Hon. National Consumer Dispute Redressal Commission, New Delhi.

Smt. Susamma Baby w/o Baby Zachariah, has been suffering from simple cholelitiasis.  The ultrasound scanning examinations done prior to the Ist surgery does not show any Bile duct anomalies other than gall stones.  Soon after the Ist surgery she developed jaundice and itching suggestive of obstructive jaundice.  The case history recorded at Guwahati Medical College Hospital, Guwahati, Assam on 6.2.1998 records 25 days of duration of jaundice and itching.  The first operation was done on 11.1.1998 at B.K. Memorial Hospital.  Thus, it is evident that Susamma Baby developed obstructive jaundice soon after the Ist operation and further tests show that the jaundice was progressive.

The ultrasound scan done before the 2^nd operation shows that there is an abrupt termination in the mid CBD and the proximal CBD is dilated with intrahepatic biliary radicles, dilation.

The notes of the second operation done at Guwahati Medical College Hospital on 14.2.1998 shows adhesions and necrosis of Bileduct.  Adhesions are usual after any surgery.  Spontaneous necrosis of the bileduct will not occur.  I have been working in the Department of Surgical Gastroenterology, Medical College Hospital, Trivandrum for the last 13 years as a Consultant and have not heard or seen of such a condition.  Necrosis occurs secondary to devascularization.  When there is necrosis bile will leak into the peritoneal cavity.  But during the 2^nd operation there was no bile collection inside the peritoneal cavity, thus, it is clear that there is a ligature above the necrosed part of bile duct preventing bile leak.  Necrosis will occur due to accidental and devasculatization of the Bile duct.

During a cholecystectomy the cystic duct is ligated using absorbable ligature (suture material).  The ligature need not be seen after few days as it is absorbed.  The 2^nd surgery was done 34 days after the Ist operation, so the suture material need not be seen.

The second operation was a hepatico duedenostomy (Anastomosing common hepatic duct to Duodenum).  Without a viable dilated bile duct this surgery is not possible.  Thus, it is clear that the bile duct above the Ligature was dilated and viable. The necrosis of the bile duct below the ligature might be due to dissection and devasculatisation at the Ist surgery.  A T -Tube cholangiogram was done after the 2^nd operation.  This mean that at the time of 2^nd surgery promixal bileduct was dilated and viable.  It was a T.Tube and not a stent, means again that the proximal bile duct was intact.

Thus, it is evident that during the Ist surgery the bile duct have been accidentally ligated.

During a cholecystectomy the common bile duct and common hepatic ducts are identified and safeguarded.  Any abnormal anatomy is noted and the procedure modified.  If any block or dilation of Bile duct is seen at operation either a pre-operative cholangiogram or exploratioin of the bile duct with a T.Tube drainage and post operative T.Tube cholangiogram is done.  But during the Ist operation no mention is made about the Bile duct.

Cholecystectomy is a major operation. It may be very easy or at times a very difficult procedure.  When done by an inexperienced surgeon it is better to close the abdomen without attempting difficult procedures or should get help from an expert surgeon.

From the available records, it is evident that during the Ist surgery at B.K. Memorial Hospital, Tezpur the surgeon had ligated the bile duct and unnecessarily dissected its distal portion resulting in devascularisation and finally necrosis of the bile duct.  This led to obstructive jaundice and necessitated corrective surgeries.  Finally patient died at Medical College Trivandrum Kerala on 14.2.1999 due to recurrent cholangitis and hepatic failure.”

          Considering this opinion of Dr. Kuruvilla,  it was thought fit that the matter is again referred to aforesaid Dr. T.K. Chattopadhyay to obtain his views vis-a-vis the opinion of Dr. Kuruvilla. Therefore, by the order dated 7.7.2009, the Director, AIIMS was requested to obtain the views of Dr. Chattopadhyay with reference to the report dated 1.8.2004.  Opinion of Dr. Chattopadhyay was forwarded alongwith the covering letter dated 18.7.2009 by the Medical Superintendent, AIIMS to the Registrar of this Commission.  That opinion  being material is extracted below:-

“The patient, Smt. Susamma Baby, had undergone cholecystectomy in B.K. Memorial Hospital, Tezpur, Assam on 11.1.1998.  Soon after the operation, the patient developed obstructive jaundice due to obstruction of the CBD.  This was evidenced by ultrasound report performed both in Tezpur as well as in Guwahati where the patient was subsequently referred. This obstruction commonly occurs following accidental ligation of the common bile duct.  Based on the operation note of the Guwahati Medical College where the patient underwent a second operation to relieve the jaundice- the common bile duct was necrosed. This observation is puzzling to me.  Necrosis occurs due to extensive devasculatisation of the bile duct.  It is unheard of following cholecystectomy.  The other fact which is intriguing is; following necrosis for over 3 weeks after the first operation one expects bile leak and collection. It is also difficult to explain proximal dilation of CBD in such situation. The operation note does not mention of this or any ligature on the bile duct.  True, an absorbable ligature may not be seen 3 weeks after the first operation.  But we do not know what material was used which largely depends on the Surgeon’s choice.  In view of all these, it is difficult to opine if the duct was truly ligated.  If the necrosis of the bile duct was not noted one could have agreed with the suggestion of ligation of the common bile duct particularly in view of the ultrasound reports.

Notwithstanding all these, the complication was detected and duly managed.  Unfortunately, the corrective surgery, hepaticoduodenostomy, undertaken at Guwahati Medical College for necrosis of the bile duct, was strictured in 4 months time. Such stricture is known to develop.  Various corrective steps have been undertaken in Trivandrum Medical College, Kerala but none could help her and she finally succumbed to sepsis leading to multiorgan failure.”

          Burden to prove that the Cholecystectomy on Mrs. Susamma Baby was performed by opposite party No. 2 on 11.1.1998 negligently which ultimately led to her death after about 13 months, is on the complainant.  Finding of the opposite party No. 2- doctor being negligent or not negligent has to be recorded on the basis of the said expert evidence.  Aforesaid two reports of Dr. T.K. Chattopadhyay exonerate the opposite party No. 2 while report of Dr. A.P. Kuruvilla holds the opposite party No. 2 to be guilty of medical negligence in performing the procedure.  In view of this contradictory evidence, it is difficult to hold the opposite party No. 2 guilty of medical negligence.  Complaint, thus, deserves to be dismissed.

Accordingly, the complaint is dismissed.  No order as to cost.