Sri.D.Krishnappa,<br /> President<br /> <br /> 1. The grievance of the Complainant who has approached this Forum against the Opposite parties is, that during April 2006 he suffered slight stomach pain with fever and approached the 2nd Opposite party hospital for treatment. After preliminary check up a duty doctor advised him abdominal ultrasound and then he underwent the said test at Kannan Diagnostic Center. The report gave impression as “Solitary gallstone-9mm, right renal calculus, mild splenomegaly”, then the duty doctor advised him that gallstone may be cured through external treatment only and there is no danger to the life. During June 2007 he suffered severe stomach pain, therefore he got admitted on 26.06.2007 in the 2nd Opposite party hospital who undertook 2D real time abdominal sonological study which disclosed gallbladder distended with wall thickening and sludge due to a 10mm impacted BG neck calculus. Then the 1st Opposite party advised operation, accordingly on 27.06.2007 he was admitted as an inpatient, then the 1st Opposite party did laproscopic cholecystectomy on 28.06.2007 and he was discharged on 03.07.2007, advising him certain medicines. The 1st Opposite party had also advised him visiting hospital after 5 days. Then he on 08.07.2008 approached the 1st Opposite party who examined him and advised him admission, accordingly he was admitted to hospital on 08.07.2007. On 09.07.2007 he was referred to radiology and other tests, which revealed an impression of distribution of fluid-bile leak and that needs to be considered. Then he was referred to gastro-enterology, which revealed the impression mid-CBD structure, he was put on observation and was discharged on 16.07.2007 with advice to take medicines and to go for review in 2 weeks. On discharge he followed the recommendations of 1st Opposite party, but still he experienced severe stomach pain and then he approached the 2nd Opposite party on 01.08.2007, wherein the 1st Opposite party again advised for radiology of abdominal sonological study, accordingly he underwent the test, which revealed post cholecystectomy with ductal injury + bile leak, presently with a pigtain insitu, showing with CHD at porta hepatic – 9mm with abrupt cut off, anterior subhepatic drain insitu with a approx 10 ml collection in relationship to the drain tip. After going through the abdominal sonological study, the 1st Opposite party advised him to continue the recommendations made in the discharge summary dated 16.07.2007. But, again he suffered severe stomach pain as such he was taken A.V.Hospital, Basavanagudi, Bangalore, where the doctor advised for MR abdomen and MR cholangio – pancreatrography and the same was made on 03.08.2007, which revealed structure with complete occlusion of distal portion of common hepatic duct and proximal portion of common bile duct, which is resulting in proximal biliary dilatation. Bilious fluid collection within hepatogastric region, which is communicating with common hepatic duct. On the advise of the doctor at A.V.Hospital he got admitted and underwent an operation of Hepatico-jejunostomy (stapled JJ) and he was discharged on 20.08.2007 after that he is feeling normal with normal stools. Though radiology report dated 09.07.2007 had given clear impression of bile leak to be considered and ERCP report dated 10.07.2007 given impression of Mid CBD stricture and the radiology report revealed ductal injury + bile leak, presently and dilatation of right ductal system, the 1st Opposite party recommended normal diet with high intake of fruits and vegetables with vitamin. Due to the above negligent advise of 1st Opposite party he suffered severe stomach pain due to increased bile leak. The 1st Opposite party inspite of going through the relevant reports, wrongly advised him for normal diet with high intake and failed to take immediate precautionary measures to put an end to end repair over a T-tube for better long term results. The 1st Opposite party, therefore has failed to properly diagnose and give proper treatment and also to give proper advice. As the result of negligence and wrong advise of the Complainant he had to incur operation expenditure, medicines etc to the tune of Rs.1,80,000/-. The Complainant further stated that the First Opposite party is an employee of the 2nd Opposite party, therefore he suffered at their hands and thereby has prayed for grant of damages to the tune of Rs.12,00,000/- under different heads. <br /> 2. The Opposite parties have filed common version contending that the complaint is not maintainable and further contended that 1st Opposite party is a specialist surgeon working with 2nd Opposite party with higher qualification undergone surgical training in UK with 16 years of service in the field and that 2nd Opposite party is a hundred years old hospital catering efficiently to the public and it is well equipped one. That Complainant having no medical knowledge has made false allegations. The Opposite parties have contended that during June 2007 the Complainant had approached them and was treated for typhoid fever and he had no complaint what so ever at that time regarding stomach pain. The Complainant got admitted to their hospital for weakness, headache and history of vomiting and he was treated efficiently. Denying that the Complainant had approached them with stomach pain have further contended that during his hospitalization for treatment for typhoid, he was advised to undergo ultrasound scanning, which revealed solitary gallstone of 9mm Small right renal calculus mild splenorology. The Complainant, he was treated for typhoid and was discharged. That the Complainant again on 27.06.2007 had approached doctor Upadhya with a Complaint of pain in the abdomen then ultrasound scanning was done, which revealed an impacted GB neck calculus with features of acute Cholecystitis. Then he was advised for laproscopic cholecystectomy +open conversion surgery for removal of gallbladder. The Complainant and relatives were explained the need of above surgical procedure. Written consent was taken by explaining the complications, such as bleeding, infection, bile duct injuries and possible open conversion. After obtaining the consent of Complainant and his wife, the 1st Opposite party performed the surgery using his skill. After the operation on 28.06.2007 the Complainant had a satisfactory post operative recovery and treatment was given within the medical parameters and the Complainant was discharged on 03.07.2007 in good condition and after diagnosing it as a case of Cholelithiasis, he was advised to take care. That the Complainant again on 08.07.2007 got admitted to the hospital after all examination, 1st Opposite party suspected a possible bile leak or a haematoma and the same was told to the Complainant and his relatives. Then ultrasound scan was taken, which revealed free fluid in the abdomen and some in the pelvis. Then the Opposite party considering bile leak in view of the post operative status and distribution of fluid as it is one of the complications involved in such surgery, the 1st Opposite party consulted a Chief Gastro-Enterologist at Vikram Hospital, ERCP was taken and on the advise of the Gastro-Enterologist catheter in the sub-Hepatic Space (Beneath the Lever) was placed and this Pigtail Catheter drained frank bile effectively thus confirming bile leak. The patient was also referred to Gastro enterologist, the condition of the Complainant was explained to his relatives advising a major operative procedure named Rouxen Y Hepatico Jejunostomy and that the 1st Opposite party would perform the said operation at the appropriate time in the 2nd Opposite party hospital. Then the Complainant was advised properly and was discharged on 16.07.2007 by advising medicines. He had also consulted several experts in the field, who confirmed the line of treatment and his advice for reviewing the patient twice weekly and to wait for 6 to 12 weeks before surgical correction to the Complainant. The bile leak in the Complainant was about 500 to 600ml approximately in 24 hours, which did not hinder in anyway as long as the pigtail, Catheter was draining well, but the Complainant did not follow the advice they had given. If the Complainant had gone to 1st Opposite party with abdominal pain on 03.08.2007 he would have given the same treatment as given by doctor Ramesh at A.V.Hospital in the 2nd Opposite party hospital itself which would have costed him Rs.30,000/-. The Opposite parties further denying all other allegations of negligence or deficiency at their end have prayed for dismissal of the Complaint.<br /> 3. During the course of enquiry, the Complainant has filed his affidavit evidence reproducing what he has stated in the Complaint. The first and second Opposite parties have filed their affidavit evidence reiterating the contention they have raised in their version. The Complainant has been cross-examined by the counsel for Opposite party and that first Opposite party has been subjected to cross-examination by the counsel for the Complainant. Both parties have produced history sheet of the Complainant. Heard the counsel for both the parties and perused the records. <br /> 4. On the above contentions, following points for determination arise.<br /> 1. Whether the Complainant proves that the first Opposite party while conducting Laproscopic cholecystectomy in the second Opposite party hospital negligently cut the Bile Duct which caused health hazard to the Complainant and thereby both the Opposite parties have caused deficiency in their service?<br /> 2. Whether the Complainant is entitled for the relief as prayed for?<br /> 3. To what relief the Complainant is entitled to?<br /> 5. Our findings are as under:-<br /> Point no.1 : In the Affirmative.<br /> Point no.2 : The Complainant is entitled for partial relief.<br /> Point no.3 : See the final order.<br /> REASONS<br /> <br /> 6. Points no. 1 & 2:- Before we take up the points for consideration, we would like to narrate some of the undisputed facts of this case. That the complainant on 15.04.2006 got admitted to the second Opposite party hospital with a complaint of weakness, headache and history of omitting since seven days. The doctors in the second Opposite party hospital diagnosed that the complainant was suffering from typhoid fever and treated him for the same and at that time the complainant had no grievance whatsoever with regard to the service of the Opposite parties rendered to him. During that course of hospitalization, the complainant was advised to undergo Ultrasound scanning and that the said scanning report reveal he had a solitary gall stone of 9 mm, small right renal calculus, mild splenorogaly. Accordingly, he was treated conservatively as he did not require any intervention at that stage, the complainant with advice was discharged after treating him for typhoid. That the complainant once again on 27.06.2007 approached the second Opposite party hospital, then he was seen by a consulting physician Drupdhya for the complainant of pain in the abdomen and he was advised ultrasound scanning. The ultrasound scanning report revealed an impacted G.B. neck calculus with features of acute cholesystities, blood tests were ordered by first Opposite party and the complainant and his wife were advised that the complainant should undergo surgical procedure and first Opposite party conducted the operation on 28.06.2007 for removing gallbladder stone and the complainant after satisfactory post operative recovery and treatment was discharged from the second Opposite party hospital on 03.07.2007, after diagnosing the complainant as a case of cholelithiasile. That the complainant again on 08.07.2007 readmitted to the second Opposite party hospital with a complaint of pain in his abdomen then first Opposite party examined him and found that he had diffused mild tenderness. Then first Opposite party suspected bile leak, then one Dr.Rajkumar Wadhwa, Chief Gastro Enterologist at Vikram Hospital, Mysore was consulted who after taking ultrasound guidance and other tests confirmed complete cut off of bile duct. Then catheter in the sub-hepatic was placed and this digital catheter drained trank bile effectively, thus confirming the bile leak. Dr.Rajkumar Wadhwa confirmed the bile leak and the said doctor further confirmed mid CBD stricture and that the report revealed the complete cut off of the bile duct and that the first Opposite party informed the complainant and his wife about the need of major operative procedure called hepiticho Jejunostomy and that first Opposite party told the complainant and his relatives that he will perform the said operation at the proper time in second Opposite party hospital and was discharged on 16.07.2007 by advising medications and nutritions and that first Opposite party had further advise the complainant to wait for 6 to 12 weeks for taking up surgical correction. The complainant thereafter went to A.V.Hospital, Bangalore and got operated from one Dr.M.Ramesh by conducting hepactico Jejunostomy and the complainant thereafter reached his normally. The complainant has produced the abdominal sonologic study report dated 26.06.2007, which revealed the impacted G.B.neck calculus. The abdominal sonology study report dated 09.07.2007 taken in the second Opposite party hospital, which suggested bile leak to be considered in view of the post operative status and distribution of fluid. The ERCP report of Dr.Rajkumar P.Wadhwa revealed that cannulated, lower CBD normal, completing cut off all the CBD at the cystic duct junction, then abdominal sonologic study dated 01.08.2007 taken at second Opposite party hospital also discloses CHD at porta, hepatis – 9mm with abrupt cut of. The first Opposite party the doctor who did laproscopic cholecystectomy has admitted in his affidavit evidence and also in the cross-examination by the counsel for the complainant, there was cut injury to the bile duct and clip was inadvertently put to the bile duct instead of putting the clip on to the cystic duct and the first Opposite party has further stated in the cross-examination that bile duct injury had happened probably during his operation and further added such thing happens when laproscopic cholecystectomy is done. <br /> 7. But, it is the contention of the complainant that the first Opposite party when did laproscopic cholecystectomy in the hospital of second Opposite party did the operation negligently without taking proper care and has injured the bile duct by clearly cutting it off and besides that it is the grievance of the complainant that the first Opposite party even after coming to know the cutting off of the bile duct advised him normal diet with high intake of fruits and vegetables which aggravated the bile leak and that draining of the bile leak through cathedral was not satisfactory, therefore, he had to undergo another operation for rectification by incurring huge expenditure at Bangalore. But, the Opposite parties on the other hand taking a plea that injury to bile duct in the course of laproscopic cholecystectomy is common that could not be corrected immediately or within few days as they had to wait for 6 to 12 weeks for dilation and correction and therefore have contended that no negligence was shown by them, in the course of operation and post operative treatment of the complainant. In view of these rival contentions and the above stated admitted facts and circumstances, we are required to find out whether the first Opposite party was negligent in cutting off of the bile duct during the course of laproscopic cholecystectomy and was also wrong in advising normal diet with high intake of fruits and vegetables to the complainant who was inserted with cathedral for draining bile leak.<br /> 8. The counsel appearing for the Complainant reiterating the allegations of the Complainant in the course of arguments invited our attention to the medical literature called Benign biliary strictures by W.R.Jarnagin, L.H.Blumgart, a combined surgical and radiological approach to benign bile-duct strictures and other biliary problems by A.S.Livingstone, D.G.Hutson and also a decision of Hon’ble State Consumer Disputes Redressal Commission, Union Territory, Chandigarh rendered in Complaint case No.5/2005 (P.B.) RBD/39/2007 delivered on 24.01.2008. Whereas the counsel appearing for the Opposite parties argued that bile injury during laproscopic cholecystectomy is a known complication, that the first Opposite party after coming to know the bile injury monitored it by proper advise with medicines and told the Complainant and his wife that it require 6 to 12 weeks for major operation to correct the bile injury, but in the mean time the Complainant approached A.V.Hospital and got the jejunostomy done. Therefore no negligence or deficiency has been committed by the Opposite parties and the learned counsel in support of his arguments has also referred to medical literature on iatrogenic bile-duct injuries - a practical approach by Dr.R.Krishnan of Malaysian Society of Gastro-enterology and Hepatology and further medical literature on gall bladder and bile-ducts by main gots abdominal operation - 11th edition. These literatures relied on by both side show that there are several reasons that the bile-duct is at increased risk of injury during laproscopic cholecystectomy compared to open cholecystectomy and bile injury during laproscopic cholecystectomy is one of the known complications. The injuries to the bile-duct are classified as minor bile-duct injury and major bile-duct injuries inflicted by surgeons and that minor bile-duct injuries sometimes are trivial which can be corrected without operative intervention. The literature relied upon by the Complainant classifies the causes for laproscopic biliary injuries due to mis-identification of the bile duct as cystic duct, mis-identification of the common bile duct as the cystic duct then mis-identification of an aberrant right sectoral hepatic duct as the cystic duct and the author given a technical causes for the bile duct injury as failure to occlude securely the cystic duct, plane of dissection away from gall bladder wall into the lever bed. Injudicious use of electro cautory for dissection or bleeding control. Then injudicious use of clips to control bleeding are some of the technical cause for bile injuries. In the present case, the first Opposite party who performed cholecystectomy, in his affidavit evidence has stated that bile injury during the operation is a known complication, therefore he had explained the same to the Complainant and his wife and performed the operation. Admitted that when the Complainant returned to the second Opposite party hospital with abdomen pain on 08.07.2007, he was admitted to hospital and on conducting necessary tests and obtaining report from Dr.Rajkumar Wadhwa the complete cut off of the bile duct was got confirmed. The first Opposite party as pointed out by us above in the cross-examination by the counsel for the Complainant admitted that there was cut injury to the bile duct and that happened probably during his operation and further, volunteered the clip was in advertently put to the bile duct instead of putting that clip on the cystic duct. Therefore, causing a major injury by way of cutting off of the bile duct by the first Opposite party during the operation is admitted. As also admitted by the first Opposite party in his affidavit evidence and in the cross-examination that bile duct injury is expected. Therefore when bile duct injury in the course of laproscopic cholecystectomy was expected one, the first Opposite party after the completion of that operation should have taken care before the completion of the operation and sending the patient to the ward whether any injury to the bile duct is caused or not. No doubt, the medical literature on the subject says that minor injuries to the bile duct cannot be noticed during the laproscopic cholecystectomy and that could be felt or noticed after few days after the operation, some times even after few weeks, but a major injury like cutting off of the bile duct could have been noticed or detected by the First Opposite party after cholecystectomy was done before the closure of the operation and sending the patient to the ward. The First Opposite party in our view therefore has failed to exercise due care of attempting to know any bile duct injuries caused during the operation, therefore we find a sort of casual approach or negligence on the part of the first Opposite party. The medical literature on Benign biliary strictures refers to technical factors which contribute to bile duct injuries. Wherein it says cholecystectomy is performed so commonly it is easy to adopt a casual attitude towards the procedure this is unwise. However, since some of these cases can quite challenging also, while it is true that many bile duct injuries are committed by in-experienced or poorly trained surgeons. <br /> 9. Further, the literature provides that blind placement of clips or indiscriminate use of electro cautory must be avoided and further says every demonstration of cystic artery is desirable and it should be divided clause to the gall bladder in order to avoid injury to the right hepatic. No doubt that a minor injury in the course of laproscopic cholecystectomy is one of the expected consequences, but the medical literatures do not say anywhere that complete cutting off of bile duct is expected one. Hence, cutting off of bile duct completely in our view, by first Opposite party is nothing sort of due to carelessness or calus the approach in conducting laproscopic cholecystectomy. Thus, on perusal of the evidence of the irst Opposite party and his admissions, it is manifest that he did not take proper care and make proper approach to carefully visualize and to identify the cystic duct and the bile duct before putting the clip. The first Opposite party in the affidavit evidence has not come forward to explain whether the bile duct was cut-off during the course of operation, because of the intervention of surgical equipments or the clip put wrongly has caused injury to the bile duct. However, the First Opposite party has admitted that bile duct was completely cut-off in the course of operation he performed. As referred to above the First Opposite party has admitted to had put the clip inadvertently to the bile duct instead of cystic duct. The meaning of the word inadvertent as given in the Chambers English Dictionary means inattentive, unintentional and the meaning of inadvertent is given as negligence and over sight. The First Opposite party therefore who has admitted in the cross-examination that bile injury was caused during his operation and the clip was put inadvertently to the bile duct instead of cystic duct, which proves the callus approach of the first Opposite party while he was conducting laproscopic cholecystectomy. The medical literature relied upon by the counsel for the complainant as pointed out by us above, that injudicious use of clips to control bleeding will also be a cause for bile injury or injuries. Even blind placement of clips has to be avoided. Thus it is clear that the first Opposite party has failed to visualize and carefully differentiate and identify the structures of the triangle of callot. The first Opposite party in the case on hand proved to had a casual approach to the operation and that has led to the cutting off of the bile duct. Therefore, he could be safely be held as negligent in conducting laproscopic cholecystectomy and to that extent the first Opposite party who conducted surgery in the hospital of second Opposite party be held to have caused deficiency in their service.<br /> 10. The complainant has alleged, that the first Opposite party even after got confirmed the bile duct injury did not take any steps to re-operate and correct bile leak, on the contrary advised normal diet and that led to serious flow of bile necessitating an operation, which she underwent in A.V.Hospital, Bangalore. The medical literatures we have referred to above provides for better management with vitamin-K and proper nutritious to bring about stability in the health of the patient and for better dilatation. The complainant has not produced any medical literature or experts opinion that what was prescribed and advised by first Opposite party after detecting the bile duct injury was wrong and that has led to the increase of bile leakage and other complications. The first Opposite party as could be seen after readmitting the complainant in the second Opposite party hospital conducting all tests got confirmed the bile duct injury and advised the jejunostomy operation after 6 to 12 weeks. The evidence of first Opposite party that in major bile duct injury there must be sufficient gap for the second operation for correcting bile duct injury gets support from the medical literature, which provides for prolonging the jejunostomy by controlling the bile leak and providing cathedral for draining the bile for improvement of overall health and for dilatation. The literature further provides to avoid early operation for taking up repair of the bile injury. Therefore, what has been followed by the first Opposite party after detecting the bile duct injury cannot be by any stretch of imagination could be held as negligent or as ill-advise. The first Opposite party further in his evidence has stated, after the discharge of the complainant after providing cathedral for draining the bile advised him to go for review after 6 to 12 weeks, did not turn up, but went to Bangalore to undergo jejunostomy. Therefore, the Opposite parties cannot be blamed, as the complainant did not go to them for an operation to correct the bile injury. The decision of Chandighar State Commission relied upon by the counsel for the complainant supports the case of the complainant regarding failure of first Opposite party to take care in conducting laproscopic cholecystectomy and causing injury to the bile duct. The learned counsel appearing for the Opposite parties have also placed reliance on the decisions reported in II (2005) CPJ 58 (NC), IV (2006) CPJ page 273 of Karnataka State Consumer Disputes Redressal Commission, IV (2006) CPJ (NC) and number of other decisions which have no bearing on the facts of this case. Hence, we hold that the complainant is successful in proving the negligence of the first Opposite party in causing injury to the bile duct while conducting laproscopic cholecystectomy in the hospital of second Opposite party who is vicariously liable for the acts and omissions of first Opposite party.<br /> 11. No, doubt, that first Opposite party claims to be a specialist having vast experience with MBBS, MS, higher surgical training in U.K. between 2003 to 2006. But, he has not placed any materials before us in he having had conducted any or many successful laproscopic cholecystectomy, therefore it emerges that he had completed higher surgical training in U.K. by April 2006 and that he being a beginner in the field of conducting laproscopic cholecystectomy ought to have been careful and diligent in identifying the cystic duct, bile duct and technique of clipping the ducts. Therefore, in our view he has exhibited his callousness or negligence or inattentiveness, which has resulted in a major injury and great financial loss to the complainant.<br /> 12. The complainant in the complaint claimed to have produced bills in he having had undergone hepatic jejunostomy in the A.V.Hospital, Bangalore claiming to have incurred expenditure Rs.1,80,000/- and claimed other expenditure, physical and mental suffering etc., and claimed a total damages of Rs.12,00,000/-. On perusal of the medical bills of A.V.Hospital they appear to be on exhorbitant side. That means to say that the complainant who choose to go to the hospital of his choice without bothering about the high cost or high expenditure and if he had incurred expenditure by taking treatment in hospital like a five star hotel, he cannot claim re-imbursement of entire charges. However, he would be entitled for expenditure of a hospital of a moderate standard. The complainant has not produced any documents to prove the loss of earnings and it is not his case he is incapacitated due to the act of first Opposite party to claim loss of future earnings to an extent of Rs.5,00,000/-. Therefore, having regard to the fact that the complainant had to undergo a major operation called hepatico jejunostomy, underwent mental agony, sufferings, nourishments etc., and taking into consideration the medical expenditure and hospital charges, mental agony and sufferings we propose to award a total damages of Rs.2,25,000/- and thus we answer point no.1 and 2 accordingly and pass the following order. <br /> ORDER<br /> <br /> 1. The Complaint is allowed.<br /> 2. The first and second Opposite parties are held jointly and severally caused deficiency in their service to the complainant and therefore, are liable to pay damages of Rs.2,25,000/- to the complainant within 90 days from the date of this order failing which, they shall pay interest at 6% p.a. from the date of this order till the date of payment.<br /> 3. The first and second Opposite parties shall also pay cost of Rs.1,500/- to the complainant.<br /> Give a copy of this order to each party according to Rules.<br />