BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT-HYDERABAD.FA.No.298/2005 against CD.No.164/2004 District Forum, West Godavari District at Eluru.
Between-
Arigela Lakshman, S/o.Adinarayana,
Hindu, Male, aged about 41 years,
Pedda Veedhi, Ambajipeta Mandal,
East Godavari District.
…Appellant/Complainant.
And
Dr.J.V.V.N.Prasad, M.S.General,
Hindu, Male, aged about 38 years,
Satya Sai Nursing Home,
Laproscopic Surgical Centre,
Opp.Govt.Hospital Street
Tanuku, West Godavari Dist.
…Respondent/Opp.Party.
Counsel for the Appellant - Mr. V.Gourisankara Rao.
Counsel for the Respondent - Mr.S.R.Sanku.
QUORUM-THE HON’BLE MR.JUSTICE D.APPA RAO, PRESIDENT,
SMT.M.SHREESHA, HON’BLE LADY MEMBER,
AND
SRI G.BHOOPATHI REDDY, HON’BLE MALE MEMBER.
THURSDAY, THE TWENTY FOURTH DAY OF APRIL,
TWO THOUSAND EIGHT.
Oral Order (Per Hon’ble Mr.Justice D.Appa Rao, President)
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1. The unsuccessful complainant preferred this appeal against the dismissal of his complaint for medical negligence in CD.No.164/2004, on the file of District Forum, West Godavari District at Eluru dated 19.01.2005.
2. The case of the complainant in brief is that on the advise of one Dr.D.Ramachandra Rao, he approached Dr.J.V.V.N.Prasad, the opposite party, on 08.10.2003 for treatment for stones in gall bladder with the scan report. On seeing the scan report Dr.Prasad, proposed to perform operation for removal of stones in gall bladder by laparoscopic surgery. A fee of Rs.10,000/- was fixed. He operated on him. However, in the process he not only removed the gall bladder but also cut Annavahika. When his condition became serious, Dr.Prasad took him to Nagarjuna Hospital, Vijayawada. On 12.10.2003 Dr.Jaganmohan had diagnosed that there was leak cystic duct stump. He was kept in the hospital for seven days and was brought back to the hospital of opposite party. He was discharged four days later. As he was continuously getting pain and was vomiting, once again, he approached Dr.Ramachandra Rao of Amalapuram, and stayed there for ten days. However, the pain did not subside. On that he went to Kakinada. He was again scanned. In the report it was found that gall bladder stones were not removed by Dr.Prasad, the opposite party. Thereupon, he went to Hyderabad and approached Dr.Nageswara Reddy of Asian Institute of Gastroenterelogy, Hyderabad. He suggested an operation for removal of stones in the gall bladder. On that he approached Dr.Ravindranath of Global Hospital, Hyderabad on 28.02.2004. He operated him on 01.03.2004 by opening the stomach. He removed the stones in the gall bladder and set right all complications. He stayed as in-patient till 17.03.2004. He spent about Rs.3,50,000/- due to wrong operation conducted by the opposite party. He suffered mental agony and bodily pain. He got issued registered notice on 01.04.2004 and filed the complaint to direct the opposite party doctor to pay Rs.3,59,625/- towards surgery, medicines and hospital charges with interest and Rs.4,62,375/- for mental agony and physical suffering besides costs.
3. The opposite party resisted the complaint. While admitting that he performed operation on 08.10.2003 for cholelithiasis plus cholelithiasis through laparoscopic surgery, the allegation that he cut Annavahika was denied. While operating, he found that the common bile duct and transvers colon was dangerously infected and unhealthy and all the surrounding structures were densely adherent to each other and the entire area was infected and omentum covered the entire area making the vital parts like liver, gall bladder, duodenum, etc. not visible to the surgeon. Since the omentum was completely covering the gall bladder area and it became difficult for him to locate gall bladder, he tried to separate the adhesions to remove gall bladder, puss gushed out from gall bladder. Thereupon, he removed the laparoscopic instrument and opened the abdomen by converting the laparoscopic surgery into open surgery with the help of another surgeon, C.Venkatadri after taking consent from the wife and relatives of the complainant, who were witnessing the surgery in T.V. monitor. Considering the infection and that the gall bladder was in a very bad condition, he removed half of the gall bladder, as he thought that further separation of adhesions might cause life threatening complications. The operation of sub total cholecystectomy was done in the interest of patient to save his life with a view to conduct another operation subsequently. He followed the prescribed surgical procedure. On the fourth day of the operation, he found that there was a small biliary leak from the drain site. On that he had taken the complainant on his own to Nagarjuna Hospital, Vijayawada, for further investigation and treatment. The MRI revealed that the gall bladder was not visible even after one week of the operation. There was small collection between gall bladder fossa and the drain site. Thereupon, they inserted a 8F biliary stent to stop the leak. Thereupon, the complainant was discharged on 18.10.2003. Again he came on 19.10.2003 and stayed in his hospital upto 22.10.2003. He was discharged in a healthy condition. He never returned to him for post operative follow up. Till he received notice, he was not aware as to what happened to him. Had the complainant came to him, he would have conducted the very same operation, which was said to have been done by Dr. Ravindranath of Global Hospital. He exercised maximum reasonable care in treating the complainant. Having recognized the complications, he himself took him to the Nagarjuna Hospital and got the complications rectified. Had he done total cholecystectomy at the time of operation on 08.10.2003, the complainant could have died. There was no deficiency in service nor negligence and prayed for dismissal of the complaint.
4. Complainant besides filing his affidavit evidence, examined P.W.1, Dr.K.Ravindranath, who conducted subsequent operation and filed Exs.A.1 to A.17. The opposite party doctor filed Exs.B.1 to B.4. The District Forum after considering the evidence placed on record opined that the operation was conducted as per the prescribed procedure and that the deficiency of service cannot be attributed to the opposite party. Holding that there was no deficiency of service, the complainant was dismissed.
5. Aggrieved by the said decision, the complainant preferred this appeal contending that the District Forum did not appreciate the facts in correct perspective. The opposite party doctor failed to perform cholecystectomy by laparoscopic method which shows that the doctor did not visualize the complication. Even by open surgery method also, he did not remove the stones and the gall bladder. He ought to have noticed that infection of the surrounding organs of gall bladder is a known complication and it cannot be termed as sudden encounter during laparoscopic surgery. The leakage of bile was due to injury to the cystic duct stump, evident from MRI study dated 12.10.2003. Since the opposite party could not remove all the stones as well as the gall bladder, Dr.Ravindranath conducted the operation and removed the same. The opposite party doctor was only a General Surgeon and not a qualified person to conduct operation by laparoscopic system. The complainant due to lack of knowledge, instead of mentioning “common duct cystic stump cut”, it was mistakenly mentioned as “Annavahika was cut”. It is the duty of the surgeon to ascertain the condition of the gall bladder, surrounding organs before proceeding with the surgery, as otherwise amounts to deficiency in service. Therefore, he prayed that the appeal be allowed by setting aside the order of the District Forum and award compensation.
6. The point that arises for consideration is whether there was any deficiency in service on the part of the opposite party, while performing the surgery conducted on the complainant?
7. It is an undisputed fact that the complainant approached the opposite party Surgeon on 08.10.2003 along with scan report, Ex.A.4 on the ground that he was suffering from stones in the gall bladder. It is also not in dispute that the opposite party doctor opined that it was a case of laparoscopic surgery. The complainant was treated as an inpatient, evidenced under Ex.A.5 maintained by the opposite party. While performing laparoscopic surgery, he thought it fit that instead of laparoscopic surgery he had to perform an open surgery. It is not in dispute that four days after the surgery it was observed that there was bile leak from the drain site. Since the surgeon while performing the operation cut common bile duct instead of the gall bladder, there was a leakage of bile. Since neither the stones nor the gall bladder was removed completely, he approached P.W.1, Dr.Ravindranath, who performed the operation and removed the gall bladder along with stones. The complaint is that all these complications had arisen due to negligence of the opposite party in conducting the operation.
8. The opposite party doctor gave an explanation stating that the area of gall bladder was highly infected and all the vital organs like liver, right and left hepatic ducts, common bile ducts and pancreas were covered with omentum, a brown colored soft substance produced in the body as a layer covering an infected part of the body forming adhesions. He explains that this adhesion of an un-known tissue sticks one part to another part of the body and difficult to separate each organ. When he was doing operation by laparotomy he could locate highly infected and inflamed gall bladder with adhesions. When touched with the instrument puss gushed out from gall bladder and thereby he found that it would be difficult to remove the gall bladder by laparoscopic method. He used his discretion in the interest of the patient. He immediately switched over to open surgery. This was recorded on a compact disc. This switching over of operation from laparoscopic to laparotomy is widely accepted in the medical field.
9. It is also not in dispute that the moment he found the bile was leaking, he took him to one Dr.Jagan Mohan Rao, a Gastroenterelogist at Vijayawada. On that Dr.Jagan Mohan Rao inserted a 8f biliary stent into the common bile duct and stopped leakage of bile. Again the patient was brought back to his hospital. He was there from 19.10.2003 to 23.10.2003. The opposite party advised the patient to come after one week for follow up. According to the doctor, it was to remove the entire gall bladder after infection is controlled. Admittedly, the appellant did not come again to take follow up treatment.
10. In order to prove that the opposite party was guilty of negligence in conducting operation the complainant himself examined P.W.1, Dr.K.Ravindranath, a renowned Gastroenterelogist. He supported the opposite party rather than the complainant. He stated that “ it is the normal practice to do open surgery, if the surgeons finds difficult to conduct surgery laparoscopically due to infection or adhesions. It is practiced in certain difficult cases to do only sub total of cholecystectomy if there is any danger injury to bile duct or to other vital organs”. He further admitted that in “Ultra Sound Scan we can normally detect the disease of the gall bladder and its contents, usually stones, but not infection”. The complainant alleges that while conducting the operation the opposite party damaged the bile duct due to which the bile was leaking. Moreover, he did not remove the entire gall bladder. Therefore, he was forced to undergo another operation under P.W.1.
11. Contrarily P.W.1 in his very chief examination stated “I did not find any damage to the bile duct”. It may be stated that the respondent, who did sub total cholecystectomy (removal of some portion of the gall bladder) in view of the fact that there was infection. He postponed the rest of the operation on the ground that the infection had to be controlled in the first instance and then go for removal of the entire gall bladder.
12. It is not in dispute that when the bile was leaking the opposite party himself took the appellant to Vijayawada to get the bile duct operated and get the leakage stopped. Subsequent to the stoppage of leakage, the appellant stayed in the hospital and took treatment. It may be stated herein that it is not his case that the opposite party doctor informed that he removed the gall bladder completely.
13. After five months i.e. on 01.03.2004 P.W.1 Dr.Ravindranath conducted cholecystectomy and removed the remaining stones and gall bladder. In the meantime, he visited Dr.Ramachandra Rao of Amalapuram. Subsequently, he visited Dr.Nageswara Reddy, a senior most Gastroenterologist and finally he approached Dr.Ravindranath.
14. While the complainant alleges that there was a leakage of bile due to the injury to cystic duct stump, evident from MRI report dt.12.10.2003, the respondent alleges that while undergoing cholecystectomy operation the surgeon had to cut and divide the cystic duct in order to remove the gall bladder. Since there was an adhesion, this injury is inevitable and therefore, it was plugged in the hospital at Vijayawada.
15. Since another operation has to be performed, in the light of the fact that there was infection to the gall bladder, in Ex.B.4 Discharge Summary there was a categorical mention that the appellant should come after one week after using antibiotics for follow up treatment namely, for the removal of the rest of the gall bladder. In fact he had approached P.W.1 after five months and got it removed. By then there was no infection. Had the patient come to him, he would have performed the same operation.
16. Though the appellant contended that the respondent was only a General Surgeon and was not competent to conduct laparoscopic surgery, no evidence was let in. The fact that the opposite party is a Master of Surgery in General Surgery and also renowned laparoscopic surgeon duly trained in performing the said operations for the last 8 years is not disputed. According to him, he conducted more than 500 operations in and around West Godavari District, which was not equally refuted.
17. The complainant alleged that the opposite party had cut his annavahika. Obviously this is a mistake. It is not the case of anybody that annavahika was cut. Obviously, this was mentioned without knowing the exact part for which the operation was performed. Evidently, that is why the respondent was referring to the opinion of Dr.Nageswara Reddy, a Gastroenterelogist, who opined that Esophagus was normal.
18. The learned counsel for the appellant relying upon an unreported decision of Andhra Pradesh State Consumer Disputes Redressal Commission in CD.No.12/1994 (A.Venkata Narasaiah Vs. Dr.C.L.Venkata Rao and another) contended that causing injury to the bile duct while performing laparoscopic cholecystectomy amounts to negligence. Removing of part of common bile duct without the knowledge of the complainant would also amounts to negligence.
19. It was a case of removal of bile duct. The very same doctor, Dr.K.Ravindranath, who was examined as P.W.1 in this case was the doctor there. He performed Hepatico Jejunostomy operation to rectify the defect. He observed that the bile was leaking through the open end of bile duct and there was no bile duct in full to narrow down. In the light of his evidence, in that case, it was held that the contention of the doctor that total bile duct was intact and it was narrowed cannot be accepted. Therefore, on facts it was held that there was negligence. Coming to the facts on hand P.W.1, who was examined by the very complainant, ruled out any negligence on the part of the respondent.
20. The learned counsel for the respondent relied on a decision reported in AIR 2001 SC 3914 (Smt. Vanitha Ashok, vs.Lakshmi Hospital), wherein it was held
“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 as contrary view will not make him liable for negligence. This is the standard of care required by a doctor.”
It was also observed that -
“The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not a survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence.”
21. The learned counsel for the respondent also relied on a decision reported in AIR 2003 MP 284 (State of Madhya Pradesh Vs. Smt. Sundari Bai) wherein the doctor has conducted operation in a different way. It was held that the doctor cannot be held negligent and fasten with liability to pay damages on the ground that the doctor should have adopted a different treatment or operated in different way. P.W.1 himself admitted that open surgery could be done when it was not possible for conducting laparoscopic surgery. In some what similar case and in a decision reported in IV (2004) CPJ 660 (Selvamani Vs. Dr.K.P.Singh) wherein the second surgery was necessitated due to the failure of removal of the stones from the gall bladder. It was observed that gall bladder was deeply adherent to liver bed, dissection would be very difficult and therefore, it cannot be held that there was a deficiency in service on the part of the doctor. In this regard an observation found in the Indian Journal Surgery issued by the Association of Surgeons of India dated March-April 2001 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 the Medical Science, it cannot be stated that the first respondent tendered 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.”
As the operation conducted by the respondent was an approved surgery and sanctioned by Medical Sciences, it cannot be said that he was guilty of open surgery instead of conducting laparoscopic surgery.
22. To sum up P.W.1 the very doctor, who conducted operation on the appellant, ruled out any negligence on the part of the respondent, since the procedure adopted by the respondent is acceptable as per medical standards. It cannot be said that he was negligent in conducting operation. When it was found that the gall bladder was infected and when puss was gushed, he conducted open surgery. Since bile was leaking, he took him to Vijayawada and got him treated. There was no adequate evidence with supportive medical evidence to show that the doctor has conducted the operation negligently. The only expert, who was examined by the complainant did not agree with the allegation made by the complainant. Therefore, we are of the opinion that the respondent was not negligent in conducting the operation. The District Forum has elaborately considered both facts and law in correct perspective. We do not see any ground, whatsoever, to interfere with the finding of the District Forum. We do not see any merits in this appeal.
23. In the result, the appeal is dismissed. However, in the circumstances, no costs.
PRESIDENT LADY MEMBER MALE MEMBER
DT-24.04.2008.
Vvr.
