Hon’ble Mr. Subhas Ch. Guin, Member.
The alleged medical negligence has dragged the Complainant before the commission for redressal of her grievance. The brief fact of the complaint petition is that the complainant, Smt. Mita Dey who is a resident of Boys’ Club, Subhas Pally, P.S. Kotwali, District: Cooch Behar felt severe pain in her abdomen and was taken to Dr. Snehanshu Mondal, MS (Surgeon), Niramay Pharmacy, MJN Road P.O. & Dist- Cooch Behar (OP-1) for treatment in middle of December 2017, who after thorough clinical examination prescribed some medicine and advised some Pathological test and an USG of whole abdomen. As per advice of the O.P-1 on 22.12.2017 the Complainant went to Global Diagnostics, Cooch Behar where Dr. Mihir Pal, Radiologist and ultrasonologist, Conducted an USG of whole abdomen of the complainant and issued one USG report with impression "Multiple cholelithiasis" and Grade-1 fatty change in liver.” On the same day the complainant visited the chamber of the O.P-1 with the USG report when on clinical examination and perusal of the earlier reports, the O.P-1 advised her for immediate operation to be performed at Maharaja Nursing Home Pvt. Ltd, Siliguri Road, Khagrabari, Cooch Behar (OP-2). Thereafter, the complainant got admitted in the O.P-2 nursing home on 22-12-2017 and the O.P-1 doctor performed Laparoscopic cholecystectomy operation on the same day with removal of the gall bladder and discharged the complainant on 24-12-17. The Complainant paid Rs 26500/- to the O.P-2 nursing home which included lost of surgery, post operative care and expenditure on medicine for which the O.P-2 issued money receipt. On discharge, the complainant requested the O.P-2 several time to supply copies of the treatment sheet, Bed Head Ticket and related documents but the O.P-2 did not supply the same till date.
That even after such surgical procedure and taking all medicine prescribed by the O.P-1, the complainant did not recover rather her condition deteriorated. So, she contacted the O.P-1 and reported him all her discomfort on 30-12-17 when the O.P-1 assured that she would be perfectly alright within few days. But inspite of his assurance her condition did not improve and she began to feel pain in her abdomen with fever and she also noticed that her urine was completely dark yellow in colour and her whole body turned yellowish like a Jaundice patient. Again on 04-01-18 the complainant paid Visit to the O.P-1 to report all her discomfort for which the O.P-1 prescribed some medicine and told her to come again after two days. But after two day finding no relief in pain she again visited the chamber of the O.P-1 on 06-01-18 when the O.P-1 prescribed some medicine and adviced her two investigations e.g. USG of whole abdomen and MRCP. As per his advice, the USG was done at star imagine centre on 07.01.2018 by Dr. Sanjit Kr. Oram and after performing such test the said doctor gave impression of the test as follows.
Mild hepatomegaly with dilated IHBR.
Dilated right, left hepatic ducts, common hepatic duct with abrupt narrowing stricture/calcnlns.
Common Bile duct collapsed(not dilated).
Cystic focus at gall blader fossa region (dilated cystic post cholecysteetomy statns.
Advice: MRCP.
That the very next day i.e on 08.01.2018 the said Dr. Sanjit Kr. Oram performed MRCP ( Magnetic Resonance Cholangio pancreato graphy) of the Complainant wherever he gave impression given below.
MRCP are suggestive of sever constriction/stricture at level of transition of common hepatic duct and common bile duct.
Focal constriction also noted just beyond biliary confluence.
Moderately dilated intrathepatic biliary channels.
Small focal dilation of cystic duct.
Post Choleeystectomy Status.
Thus, from the USG report dated 07.01.2018 and the MRCP report dated 08.01.2018 it was revealed that some injury was caused to the bile duct, common hepatic duct along with cystic duct which led to serious surgical problem. Biliary leak also occurred and the Complainant developed sever jaundice but the O.Ps did not disclose anything about the injury caused to the Complainant. After getting those investigation report the Complainant and her family members became shocked. Thereafter finding no other alternative they visited the chamber of the O.P-1 who again advised for another surgical procedure with a further package. Then by the intervention of family member and well wisher, the Complainant was taken to a higher centre, e.g Ram Krishna Seva Sadan (Mediview) at Siliguri, under Dr.D Bagechi on 15.01.2018. Dr. Bagchi diagnosed the case of the Complainant as a case of obstructive jaundice due to post Laparoscopic Cholecystectomy biliary stricture which was done by the O.P-1. Thereafter, Dr. Bagchi advised various test and investigation to ascertain the then situation of the Complainant at Ram Krishna Seva Sadan (Mediview), Siliguri on 25.01.2018 and performed Roux-en-y hepaticojejunostomy technique to reconstruet biliary duct of the Complainant which was injured by the O.P-1. The Complainant was discharged from the said nursing home on 09.02.2018 that for the medical negligence and deficiency in service on the part of the O.Ps, The Complainant had to incur huge amount of money and also sustained immense mental as well as physical pain and agony.
The monetary loss suffered by the complainant included hospital/nursing home charges, other expenses at Siliguri and investigation charge at Cooch Behar and miscellaneous expenditure from Cooch Behar to siliguri, to and fro fare, food and lodging and taxi fare which would not less than Rs. 200000/-. The cause of action of the present case arose on 22.12.2017 when the O.P-1 performed operation of the Complainant and thereafter on several occasion and still continued. The Complainant prayed for a direction to the O.Ps to pay a sum of Rs. 500000/- for medical negligence and deficiency in service, Rs. 200000/- for nursing home charges, Rs. 100000/- for miscellaneous charges, (i.e. train fare, food and lodging, taxi fare etc.) Rs. 150000/- for mental pain, agony and harassment and Rs.10000/- for cost of litigation.
O.Ps contested the case by filling W.V. evidence on affidavit and written arguments. The O.P-1 in his defence stated that the case was bad for non-joinder and mis joinder of the parties because the doctor by whom the Complainant was treated were not made parties to this case. The Ld. Advocate for the O.P-1 asserted that Dr. Snehaushu Mandal, the O.P-1 was a surgeon who was in the medical field for more than 25 year with unblemished carrier and whatever allegation with respect to treatment and deficiency in service against him were false and were denied by him
So far as the case was concerned, Dr. Snehaushu Mondal asserted that the said patient, Smt. Mita Dey came to him on 27-11-17 and revisited his chamber on 22-12-17 having complain of acute pain in her abdomen for couple of days. It was mention worthy that she came on 22-12-17 along with an USG report of whole abdomen done at Global Diagnostics by Dr. Mihir Pal with an impression "Multiple Cholelithiasis, Grade-I fatty Change in liver". So, she was adviced for immediate operation upon clinical examination and perusal of the USG report at that point of time. Accordingly, the patient got admitted in O.P-2 nursing home on 22-12-17 under O.P-1 doctor. On the same day, the O.P-1 performed laparoscopic cholecystectomy of the patient which was in accordance with the medical science for which the patient in question was, in O.P-2 nursing home form 22-12-17 to 24-12-17. The discharge of the patient was in stable condition with advice to take some medicine. That against such operation a total sum of Rs. 24,000/- was charged which included professional fee, OT Charges, medicine and hospital charges. All possible medical care had been taken in her said surgical procedure. The O.P-1 doctor treated the patient with utmost care and skill as needed at that time. All sorts of pre and post operative care were taken and there was no negligence or carelessness on the part of the O.P-1 in treating the patient. Whatever treatment given to the patient was given as per medical norms. The O.P-1 asserted that the Complainant came to him on 27-11-17 first not in the middle of December 2017, which was written in the complaint petition. The O.P-1 never advised the Complainant to get the USG of whole abdomen done on 22-12-17. On the contrary, the Complainant came to the O.P-1 with reports of USG before hand on 22-12-17. The O.P-1 never suggested him to get admitted in O.P-2 nursing home but the patient party on their own accord got the patient admitted in O.P-2 nursing home and a sum of Rs 24000/- had been charged which included professional fee, OT charges of nursing home, medicine, and hospital charges. The allegation of cutting the CBD along with cystic duct which led to serious surgical problem, biliary leak, development of jaundice of the Complainant and non disclosure of anything about injury caused to the Complainant were totally denied by the O.P-1 but he stated that the cause of bile duct injuries during gall bladder surgery is a very phenomena which occur accidentally because the area around the gall blader and bile duct is masked in some way which cannot be visible clearly. This can happen if the anatomy is different than normal or if there is a lot of bleeding, swelling or scarring in the area. The O.P-1 also asserted that during operation no bile leakage was noted as it happens in case of CBD injury, the result of which no suspicious was made at that point of time. Even no bile duct leakage was found through the abdominal drain in post operative period during stay in O.P-2 nursing home. The Complainant was diagnosed with obstructive Jaundice on 04-01-18 by the O.P-1 at the time of her further visit and she was advised for undergoing certain relevant investigation as was necessary for proper diagnosis. The O.P-1 asserted that everything was informed and explained properly to the patient and the patient party on 08-01-18 after throughly perusing all investigation reports i.g USG report dated 07-01-18 and MRCP dated 08-01-18 and no surgical charge was demanded by the O.P-1 for repairing of such CBD injury. He also asserted that all measures were taken and all avenues were explored in performing the laparoscopic cholecystectomy. He left no stone unturned for the patient of his well being within the limit of medical sciences available in hand and she was under constant surveillance and proper care was taken during her operation, stay in the O.P-2 hospital and during pre and post operative stage. All sorts of support which was required, keeping in mind the condition of the patient was given to the patient. He also asserted that he had treated the patient with utmost care and as per his knowledge of medical science. There was no negligence nor deficiency in service nor there was any failure to use reasonable degree of skill, care, knowledge and prudent as alleged. Thus, the Complainant did not suffer due to his fault. Therefore, the Complainant is not entitled to get any compensation whatsoever and the complaint petition is liable to be dismissed with cost.
The O.P-2 In his defence stated that this complaint petition is not maintainable because of non-joinder and misjoinder of parties. That the doctors and the institution in which the Complainant was treated should have been made parties to this case. He also asserted that they were reputed nursing home having better equipments and infrastructure within the district and the same was provided to the Complainant at the time of treatment. They followed the advice of the attending doctor with great care and served the medicine prescribed by the O.P-1 doctor. There was no negligence whatsoever on the part of the O.P-2 in the treatment of the Complainant. The entire allegations as brought against the O.P-2 are altogether false and baseless. The O.P-2 has not practiced any unfair trade with the Complainant and there was no deficiency in service as alleged by the Complainant. There is no cause of action to file this case against the OP-2. Therefore, the Complainant is not entitled to get any relief whatsoever and the complaint petition is liable to be dismissed with cost.
Perused the W.V, evidence on affidavit and all documents in the Case record. Heard the argument of both parting at length. Considering all these, the Commission wants to analysis the following points to reach at a conclusion about the instant case.
Point for Determination
i) Whether there was any medical negligence on the part of the O.Ps ?
ii) Is the Complainant entitled to get any relief as prayed for in her Complaint petition?
Decision with Reasons
Point No.1 & 2.
Both points are taken up together for discussion as they are interlinked with each other and for brevity also. The Complainant, Smt. Mita Dey was seen by Dr. Snehanshu Mondal (O.P-1) on 22-12-17. Anex-A is the report of USG of whole abdomen of the Complainant where impression was written as "Multiple cholelithiasis, Grade-I fatty change in liver". On the basis of such USG report, the O.P-1 advised the Complainant to undergo a surgical procedure for which the Complainant got admitted in OP-2 nursing home. On that day the O.P-1 performed the said procedure and discharged the patient on 24-12-17 (Anex-B). On 30-12-17 the Complainant paid visit to the O.P-1 doctor when he prescribed some medicine for relief of her discomfort and again the Complainant visited the chamber of the O.P-1 on 04-01-18 for her abdominal pain. But this time also the O.P-1 prescribed some medicine for pain relief and adviced her to come after two days. The Complainant again paid visit to the O.P-1 on 06-01-18 when the O.P-1 adviced her to undergo an USG of whole abdomen and an MRCP test.
Anex-C in the USG of whole abdomen of the Complainant done on 07.01.18 wherein impression was given as follows
Mild hepatomegaly with dilated IHBR.
Dilated right, left hepatic ducts, common hepatic duct with abrupt narrowing stricture/calcnlns.
Common Bile duct collapsed(not dilated).
Cystic focus at gall blader fossa region (dilated cystic.
Post cholecysteetomy statns.
Advice: MRCP.
Anex-D is the report of MRCP test of the Complainant done on 08.01.18 wherein impression was as follows
MRCP are suggestive of sever constriction/stricture at level of transition of common hepatic duct and common bile duct.
Focal constriction also noted just beyond biliary confluence.
Moderately dilated intrathepatic biliary channels.
Small focal dilation of cystic duct.
Post Choleeystectomy Status.
On persuing thoroughly all the investigation report VIZ USG report dated 07.01.18 and MRCP report dated 08.01.18, the O.P-1 diagnosed the Complainant with obstructive jaundice and everything was informed and explained properly to the patient and the patient party on 08.01.23 by the O.P-1 but no further surgical expenditure was demanded by him at that point of time for repairing of CBD injury. The Complainant did not file any prescription of the O.P-1 dated 08.01.18 advising another surgical procedure under him with further package. Now it is evident that the patient party on their own accord went to the higher centre for better management of the health problem. They visited the chamber of Dr. D. Bagchi on 15.01.18 who diagnosed the Complainant with obstructive jaundice and biliary stricture, Junction of CHD & CBD (Anex-E). The Complainant got admitted in Ramkrishna Seva Sadan(Mediview) on 25.01.18 and was discharged on 09.02.18. During her stay in the said hospital, Dr. Bagchi performed Roux-en-Y choledochojejonostomy for repair of biliary duct of the Complainant. In this context, the Ld. Advocate for the O.P-1 refered a case law of Hon’ble National Consumer Dispute Redressal Commission in the case of Smt. Tilat Chudhry & Anr. Vs All Indian institute of Medical Science & other wherein the Complainant was supposed to undergo laparoscopic cholecystectomy but the O.P-2 surgeon performed open/ conventional cholecystectomy due to CBD injury during laparoscopy surgery which the O.P-2 surgeon came to know during the former surgery. But the husband of the Complainant-1, the Complainant-2 came to know from the discharge summary that some injury was caused to the bile duct during laparoscopic procedure and to repair the same, the abdomen of the Complainant-1 was opened. It was also alleged that not only that injury to the bile duct was caused but also it was not repaired promptly and properly which resulted in further Complication of increase in the level of alkaline phosphate in the body and it was found that there was blockade in the body which prevented free passage of bile causing increase in the level of alkaline phosphate which was due to faulty repair of CBD injury. Despite taking treatment at various medical center there was not much improvement in her condition and she was advised to undergo second surgery which could pose a risk to her life. Whether CBD injury is a known complication of laparoscopic cholecystectomy procedure or it was caused due to lack of care/negligence on the part of the operating surgeon and his assisting doctors is the material question, answer to which would decide the fate of the present complaint.
In the above discussed case the main plea of the complainant was that given the condition of the Complainant No.-1, the O.P-2 should not have resorted to the laparoscopic procedure and that CBD injury was caused due to non-visualization of the ductal anatomy of the Complainant No-1 during the laparoscopic cholecystectomy procedure and since the CBD injury during laparoscopic procedure was not denied from the side of the O.Ps, this Commission with view to sorting out the controversies thought it advisable to obtain the opinion from an independent medical expert body. Therefore, this commission referred the matter to Director General of Health Services, Govt. of India, New Delhi for constituting a Medical Board from the relevant discipline not less than three in number and not belonging to AIIMS (As AIIMS was the party to this case) for the purpose of examining the matter and giving its opinion in the case in hand on the above aspect. The said Medical Board opined that laparoscopic cholecystectomy was converted to open Cholecystectomy and appropriate corrective measures (Hepaticojejunostomy) for the CBD injury were successfully taken. At no stage any evidence of negligence was forthcoming on perusal of relevant medical record available to the Medical Board.
On a consideration of the above noted anthoritative opinions of the Medical expert and bearing in mind the legal position, there cannot be any denial of the position that the CBD injury is a well-known complication of the Cholecystectomy procedure and frequency of such complications has increased with the advent of laparoscopic cholecystectomy. Therefore, it must be presumed that the incident of CBD injury is a well known risk when a patient undergoes a laparoscopic cholecystectomy procedure. In other words, the same cannot be correlated as the act of negligence or carelessness on the part of the operating surgeon. The observation of Hon’ble National Commisssion is that the procedure of laparoscopic cholecystectomy and the procedure adopted to correct CBD injury, no fault can be found with the same as has been opined by the body of medical experts. Once it is shown that due medical protocol was followed no case of negligence is made out against the O.Ps. With respect to the subsequent and persisting problems, which the complainant No-1 claims to have suffered even after her discharge from the O.P-1 hospital that such post operative problems were normal and had subsided after the Complainant-1 took treatment at certain other medical centers. In any case, the complainant -I was discharged from the hospital in a satisfactory Condition and she did not revert back to the said hospital for consultation about subsequent problems, which she had to face, may be for the reason that the Complainant had lost faith in treatment given by the OPs. On that count also, it is not possible to fix any liability on the O.Ps. Thus on a consideration of the entirety of facts and circumstances of the present case, the evidence and material brought on record, the opinion of expert body and view of the well known author in different medical text book, the irrestible conclusion is that the Complainant have failed to establish their case about medical negligence and/or deficiency in service against the O.Ps in treatment of the Complainanat-1. The complaint being devoid of any merits is accordingly dismissed.
In the subject case, it is seen that the post operative diagnosis of the O.P-1 and Dr. Bagchi were same. The Complainant had undergone the surgery for CBD reconstruction (Roux-en-Y hepaticojojunostomy) under Dr. Bagchi for making the O.P-1 liable for CBD injury because the O.P-1 claimed a package money which was alleged by the Complainant. On the other hand, the O.P-1 refuted that claim of charging package money for repair of CBD injury which proves that the O.P-1 admits the CBD injury during laparodcopic cholecystectomy after the post operative investigation.
From the above stated case it is admitted position that the CBD injury is a Common phenomenon in laparoscopic cholecystectomy, because of the fact that the surgeon is not able to directly see the area of operation but instead is able to view things on a screen after the camera is inserted internally through small incision in the abdomen and procedure is performed by inserting small surgical equipment through another incision in the abdomen. In this case, the Complainant could not prove any evidence that the O.P-1 was negligent in performing the said procedure. Moreover, the phenomenon of CBD injury was admitted by the OP-1, then it was his responsibility to repair the said Injury free of cost for which the O.P-1 claimed that no further package money was demanded by him. The Complainant did not refute the claim of the O.P-1 by adducing any evidence. Therefore, considering all aspect and placing reliance on the observation of the Hon’ble National Commission it is established that the Complainant cannot prove any medical negligence or deficiency in service on the part of the O.P-1.
It is also admitted by the O.P-2 that they provided their better equipment and infrastructure at the time of treatment to the Complainant. They also followed the advice of the attending OP-1 doctor and supplied the medicine prescribed by him to the Complainant with great care. The diagnosis of the patient and test and medicine prescribed by the attending O.P-1 doctor cannot be controlled by the O.P-2 hospital. There was no specific allegation against the O.P-2 and there was no evidence filed by the Complainant to prove deficiency in service against the O.P-2. Therefore, the allegation of deficiency in service against the O.P-2 is not established.
As the medical negligence or deficiency in service is not proved against the both O.Ps so the Complainant is not entitled to get any relief whatsoever.
Both the points are answered in negative and decided against the Complainant.
In the result, the Complainant case fails on contest.
Hence, it is
Ordered
That the complaint case No. CC/67/2019 be and the same is dismissed on contest.
D.A. to note in the trial Register.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
The copy of the Final Order is also available in the official website: www.confonet.nic.in.
Dictated and corrected by me.
