West Bengal

Bankura

CC/117/2023

Sri Swapan Biswas - Complainant(s)

Versus

JEEVANDEEP Nursing Home - Opp.Party(s)

05 Dec 2024

ORDER

IN    THE   DISTRICT   CONSUMER   DISPUTES   REDRESSAL COMMISSION, BANKURA

  Consumer Complaint No.117/2023

       Date of Filing: 13 /12/2023

Before:                                        

1. Samiran Dutta                                          Ld. President      

2. Siddhartha Sankar Bhui                         Ld. Member

For the Complainant:Ld. Advocate Subhendu Guin appointed through DLSA, Bankura

For the O.P.: Ld. Advocate Sayanton Chowdhury

Complainant:

Sri Swapan Biswas,S/O-Sri Gouranga Biswas,R/O-Ramkrishna Pally(Chhoto Mana),P.O-Krishna  Nagar,P.S-Barjora,Dist-Bankura

On his behalf –Smt Sukla Biswas,W/O-Sri Swapan Biswas, R/O-Ramkrishna Pally(Chhoto Mana),P.O-Krishna  Nagar,P.S-Barjora,Dist-Bankura,Mob-8392083540

Opposite Party:

1.JEEVANDEEP Nursing Home,At-Dr. B.C.Roy Avenue,P.O-Durgapur,P.S-CoCovan Police Station,Dist-Paschim Bardhaman.Pin-713201

2.Dr. Jaganmay Maji,R/O-Barjora,(near office of the WBSEDCL Barjora),P.O&P.S-Barjora,Dist-Bankura,Pin-722202       

                                                 

                                                                                FINAL ORDER / JUDGEMENT                                                                                                                                                         

Order No.13

Dated:05-12-2024

Both parties  file hazira through Advocate.

The case is fixed for argument.

After hearing argument / written argument from both sides the Commission proceeds to dispose of the case as hereunder: -        

The Complainant’s case is that he was under treatment of O.P. No.2/Surgeon, attached to O.P. No.1/Nursing Home for gastric disorder. After few days of such treatment O.P. No.2/Surgeon advised the complainant to undergo laparoscopic surgery for Gall Bladder operation and accordingly he was admitted at O.P. No.1/Nursing Home for undergoing Gall Bladder surgery. In course of operation on 08/01/2022 by O.P. No.2/Surgeon some complications arose for which O.P. No.2/Surgeon adopted further open surgery to discharge the secretion of bile but both the operation was not successful and the Complainant was to rush to Asian Institute of Gastro Enterology, Hyderabad and AIIMS, New Delhi for better treatment and management. The Complainant has suffered both pecuniary loss and mental agony for such worst post-operative complications due to medical negligence on the part of operating O.P. No.2/Surgeon and O.P. No.1/Nursing Home. The Complainant is now bedridden struggling for existence and the instant case has been filed by his spouse with due authorization claiming adequate compensation and other reliefs against both O.P.s.

                                                                                                                                                                                          Contd…..p/2

Page: 2

O.P. No.2/Surgeon contested separately by filing a written version where it is stated  in Para-11 that after ascertaining from USG report and other ancillary reports that the Complainant was suffering from Cholelithiasis for which the Complainant was advised to undergo Lap Cholecystectomy which was performed at O.P. No.1/Nursing Home on 08/01/2022 under the care and supervision of O.P. No.2/Surgeon. In course of such operation Callot’s triangle long Cystic Duct like structure was identified to be CBD but as it could not be traced O.P. No.2/Surgeon converted the Laparoscopic Operation to open procedure after consulting with the patient party whereby long cystic duct structure whose one end was attached to Gall Bladder was cut and Gall Bladder was separated from Gall Bladder Fossa. However bile came out through such drain during the post-operative period and the patient was discharged on 16/01/2022. Even after discharge this biliary leakage continued for which the patient was advised MRCP and the patient attended Hepatobilliary surgery OPD at SSKM Hospital accompanied by the staff of the O.P. No.1/Nursing Home. It is further stated in Para-11 of the Written Version that a number of factors may be involved in any occurrence of bile duct injuries during laparoscopy cholecystectomy and this includes acute and chronic inflammation, obesity, anatomic variations and bleeding as per medical literature. O.P. NO.2/Surgeon has therefore prayed for exoneration of any charge of medical negligence as it is an accidental and incidental phenomenon.

O.P. No.1/Nursing Home also filed a separate written version supporting the defence case of O.P. No.2/Surgeon against the charge of medical negligence and deficiency in service on the part of operating Doctor and the Nursing Home as they have provided all necessary medical service and facilities to the patient under Swasthya  Sathi scheme of Govt. of West Bengal.

-: Decision with reasons:-

Having regard to the facts of the case, contention, submission, and documents on both sides the Commission finds that the victim patient has a past history of gastric disorder for which he came in contact and under treatment of O.P. No.2/Surgeon attached to O.P. No.1/Nursing Home. After confirmation from USG report and other relevant reports O.P. No.2/Surgeon diagnosed the disease of the Complainant to be Cholelithiasis for which best possible method of treatment is Laparoscopic surgery and the O.P. NO.2/Surgeon advised the same and accordingly the victim patient was admitted at O.P. No.1/Nursing Home on 07/01/2022 for undergoing Laparoscopic Surgery. But in course of such operation on 08/01/2022 some complications arose as there was bile duct injury with leakage of bile. In such emergent and unforeseen situation O.P. No.2/Surgeon adopted corrective open procedure surgery to repair

                                                                                                                                                                                           Contd…..p/3                                                                                                                                                                                                                                

Page: 3

the bile duct injury by insertion of Drainage tube in situ but such operation did not cure the problem of the victim patient and for better treatment and management the Complainant took recourse to further treatment / surgery at Asian Institute of Gastro Enterology, Hyderabad and AIIMS, New Delhi where malignancy of bile duct system was detected.

Now the pertinent question is whether the O.P. No.2/Surgeon took recourse to corrective open procedure surgery while performing Laparoscopic Surgery for Gall Bladder operation to cover up his own medical inefficiency in mistaken identification approach between Common Bile Duct and Cystic Duct as is apparent from the medical  records of the O.P. No.1/Nursing Home, SSKM Hospital, Calcutta and also Asian Institute of Gastro Enterology, Hyderabad or it is an accidental/incidental medical error associated with such type of surgery. Laparoscopic Surgery is a well known method of operation for Gall Bladder treatment and O.P. No.2/Surgeon rightly proceeded to do so for the victim patient but unfortunately there was damage and injury to the bile duct in course of performing the operation and under the compelling situation open procedure surgery was performed to repair the bile duct injury by insertion of drainage tube in situ.

According to Ld. Advocate for the O.P. the complications in course of Laparoscopic Operation upon the victim patient arose not out of any medical negligence or medical inefficiency of the operating surgeon but it is due to visual perceptual illusion to distinguish between Cystic Duct and Common Bile Duct and in this connection he has relied upon a medical reference book i.e. Schwartz’s Principle of Surgery 8^th Edition Page:1212-1213 where it is stated that recent reports have communicated that the errors leading to laparoscopic bile duct injuries stem from misperception, not errors of skill, knowledge or judgement and the primary cause of error in 97% of cases was a visual perceptual illusion, whereas 3 % of injuries were due to faults of technical skill.

Ld. Advocate for the Complainant has vehemently opposed the theory of visual perceptual illusion to bypass medical negligence of the O.P.s and directly blamed the operating O.P. No.2/surgeon and O.P. No.1/Nursing Home for their medical negligence and inefficiency in causing liver damage resulting in continuous secretion of bile from the damaged liver while performing laparoscopic operation and so it cannot be treated as human medical error.

                                                                                                                                                                                             Contd….p/4

Page: 4

There is no straight jacket test to identify the border of distinction between medical negligence/inefficiency and human medical error. Laparascopic Surgery is an instrument based operation requiring technical skill and diligence depending mostly on the capacity of visual perception of the operating Doctor. Occurrence of visual perception illusion in course of Laparoscopic operation is also an act of medical inefficiency if not it is the faults of technical skill. None of the O.P.s has taken the plea of Lack of technical skill and human medical error in their defence. So the entire defence case rests upon the theory of visual perception illusion so far the damage and injury to the bile duct is concerned. Visual perception illusion is a medical conception different from human medical error and the very term itself speaks of partial medical negligence and inefficiency not germane to medical human error and the operating Doctor should pay the price for the victim of such visual perception illusion in identifying between Cystic Duct and Common Bile Duct.. In similar case reported in 2015 (3)CPJ 71 (Dr. Hari Ram Gupta Vs. Ashok Kumar Rawat) Hon’ble NCDRC, New Delhi has awarded compensation holding that it is a case of deficiency in service and lack of medical care. Apart from this, the Complainant has undergone and is still undergoing a series of post-operative surgery and treatment arising out of the complications of the laparoscopic surgery in question conducted by the O.P. No.2/Surgeon at O.P. No.1/Nursing Home by incurring huge medical expenses.

Thus the Commission is of the firm view that both O.P. No.2/Operating Surgeon and O.P. No.1/ Nursing home are jointly and severally liable for partial medical negligence and inefficiency in causing bile duct injury due to visual perception illusion of the operating Surgeon at the time of laparoscopic operation of the victim patient and the Commission likes to quantify the total compensation to the tune of Rs. 15 Lakh  out of which O.P. No.2/Operating Surgeon has to pay Rs.10 Lakh separately and O.P. No.1/Nursing Home has to pay balance Rs.5 Lakh out of vicarious liability to the Complainant.

                                                                                                                                                                                   Contd…….p/5

Page: 5

Hence it is ordered…….

That the case be and the same is allowed on contest but without cost.

Both O.P. No.2/Operating Surgeon and O.P. No.1/ Nursing home are jointly and severally directed to pay to the Complainant the total compensation to the tune of Rs. 15 Lakh  out of which O.P. No.2/Operating Surgeon has to pay Rs.10 Lakh separately and O.P. No.1/Nursing Home has to pay balance Rs.5 Lakh out of vicarious liability with litigation cost of Rs.10,000/- payable by each O.P.s. within a month from this date in default law will take its own course.

Both parties be supplied copy of this Order free of cost.

 

       __________________                                  ________________                       

 HON’BLE   PRESIDENT                            HON’BLE    MEMBER