Delhi

North East

cc/334/2010

Ms. Shalu Shalini - Complainant(s)

Versus

Jyoti Clinic & Nursing Home - Opp.Party(s)

19 Jun 2020

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No.  334/10

 

In the matter of:

	Ms. Shalu @ Shalini W/o Shri Chander Pal R/o:- House no. 160, Main Road Kardam Puri Shahdara, Delhi-110094	Complainant
	Versus
1.         2.           3.	Jyoti Clinic & Nursing Home B-32, Jyoti Nagar East, Loni Road, Shahdara Delhi-110093   Dr. L.P. Duggar (M.S. & General Surgeon) At Jyoti Clinic & Nursing Home B-32, Jyoti Nagar East, Loni Road, Shahdara Delhi-110093   Dr. Naveen Atal (M.D. Physician & Cardiologist) B-32, Jyoti Nagar East, Loni Road, Shahdara Delhi-110093	Opposite Parties

 

DATE OF INSTITUTION:       JUDGMENT RESERVED ON:               DATE OF DECISION      :

20.11.2010 19.06.2020 19.06.2020

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Facts germane for disposal of the present complaint as spelt out by the complainant are that the complainant was suffering from abdominal pain since the beginning of 2008 and on direction and advice of doctors of Gopal Nursing Home, she got ultrasound (USG) of her whole abdomen done on 25.03.2008 from Unique Diagnostic, near GTB Hospital Delhi and as per the said report, she was diagnosed with chronic cholecystitis with cholelithiasis with choledocholelithiasis and report showed presence of multiple calculi within its lumen and a calculus of 5.4 mm in the lumen of Common Bile Duct (CBD). On 01.05.2008 complainant felt acute pain in her abdomen and reached OP1 nursing home in the early morning hours of 02.05.2008 where she met OP3 Dr. Naveen Atal who after examining her medically and seen her USG report, advised her to get admitted for treatment and surgery of her abdomen urgently. Therefore, complainant on advice of OP3 got herself admitted with OP1 and deposited Rs. 15,000/- and was shifted to the medical room of OP1 for treatment by OP3. Thereafter, she was examined by OP2 who told the complainant that an operation would be conducted the next day i.e. 03.05.2008 and assured the complainant to remove the disease of cholecystitis with choledocholelithiasis. The complainant had submitted that OP2 conducted the surgery on 03.05.2008 without getting any ultrasound or pre-operative test done on the complainant merely on the basis of more than a month old USG report. At around 9.00 PM, the complainant was told that the operation was successful she was discharged two days later i.e 05.05.2008 after clearing all bills and dues and paid  Rs. 35,000/- to OP2, the operating surgeon and was advised to come to take medication for next three weeks and to come to OP1 on 08.05.2008 and 10.05.2008 for dressing change. However, the complainant did not get any relief and after a month of surgery, she felt pain in her abdomen again at the same place and immediately reached OP1 the same day and on advice of duty doctor, got fresh ultrasound done of whole abdomen  on 03.06.2008 from Unique Diagnostic which showed multiple calculi in a pocket in GB Fossa, largest of size 10 mm with dilated CBD showing tiny echogenic area in its distal and with probability of calculus. On showing the said report to OP2, OP2 told the complainant that it was due to shadow of pins used after operation for joining internally operated part which were dissoluble and that the said USG report was false. Further OP2 advised some medication for the next two-three months to the complainant which despite having taken in regular prescribed course by the complainant gave her no relief and her pain increased day after day. After two years in August 2010, the complainant on feeling severe abdominal pain visited OP1 hospital and met OP2 who then advised her to go to a government hospital for further treatment as OP1 did not have proper machinery. The complainant then approached LNJP Hospital New Delhi, where the doctor advised her to undergo ultrasound of whole abdomen and MRI of whole abdomen with MRCP. Complainant got the USG of whole abdomen done on 08.08.2010 from Gupta Ultrasound Centre & MRI of whole abdomen with MRCP done on 15.09.2010 from Dr. Gulati Imaging Institute. Both reports revealed a calculus of approx 11.5 mm in Gallbladder and multiple hypo intense filling defects in mid and distal CBD suggestive of calculi and residual gallbladder with calculus in GB lumen with choledocholethiasis with mild obstructive biliopathy. The complainant got admitted at LNJP hospital on 26.10.2010 and got operated upon on 28.10.2010 for laparoscopic CBD exploration with primary closure over stent under GA and was discharged on 02.11.2010 in stable condition. Therefore, complainant has alleged medical negligence on the part of OPs for conducting surgery despite incompetence and lack of knowledge and facility in the hospital and misguiding the complainant. The complainant got a legal notice dated 07.10.2010 served on all the OPs through her counsel demanding compensation but OPs failed to respond thereto. Therefore, as a last resort the complainant was compelled to file the present complaint against the OPs praying issuance of direction against them to pay a compensation of Rs. 18,00,000/- for mental, physical and financial harassment and Rs. 2,00,000/- for expenses incurred on treatment with OP1 and also subsequent treatment / operation undertaken by complainant in government hospitals due to negligence of OPs.
2. Complainant has attached copy of USG report dated 25.03.2008 from Unique Diagnostic, copy of OPD card issued by OP for 02.05.2008 till 05.05.2008 pertaining to laparoscopic cholecystectomy surgery done under GA on 03.05.2008, copy of prescription dated 02.06.2008 by OP1 for complainant advising ultrasound of whole abdomen with “refer to surgeon”, copy of OPD card dated 03.06.2008 with ultrasound report dated 03.06.2008 done from Unique diagnostics and haematology test done by OP1 on the complainant on 03.06.2008, copy of prescription dated 09.08.2008 by OP2 advising MRI upper abdomen, copy of MRI upper abdomen with MRCP report dated 15.09.2010 issued by Dr. Gulati Imaging Institute and copy of legal notice dated 07.10.2010 issued by counsel of complainant on the OPs.
3. Notice was issued to the OPs on 09.12.2010. However, despite service none of the OPs appeared on 25.01.2011 when the matter was posted for their appearance, therefore the OPs were proceeded against ex-parte vide order dated 25.01.2011. Complainant filed ex-parte evidence and addressed oral arguments between February 2011 and April 2011 and order / judgment was passed on 04.05.2011. However, OPs approached Hon’ble SCDRC vide FA. No 280/2011 against the impugned order and Hon’ble SCDRC vide order dated 11.02.2016 set aside the order of this Forum and restored defence of OPs and remanded the matter back for fresh adjudication with direction for OPs to appear before this Forum on 10.03.2016.
4. All OPs entered appearance on 10.03.2016 and filed their respective written statements alongwith an application by OP2 for summoning complete record of report no. 414/14 from G.B. Pant hospital pertaining to complainant OPD card no. 445174 and treatment between 04.01.2008 to 07.04.2008 . In the joint written statements filed by the OP1 & OP3, they took the preliminary objection of OP1 being well equipped nursing home having qualified consultants and nursing staff, OP2 & OP3 being qualified surgeon and consultant physician respectively having ample experience in their field. OPs submitted that the complainant was admitted in OP1 by OP3 on 02.05.2008 for pain in her abdomen and had showed her ultrasound report dated 25.03.2008 as advised earlier from doctors of Gopal Nursing Home. The said report revealed choledocholelithiasis (stone in common bile duct) and chronic cholecystitis with cholelithiasis (stone in gallbladder) with presence of multiple calculi within lumen. The complainant was examined and treated by OP2 who then conducted her surgery on 03.05.2008. OPs have submitted that prior to her surgery at OP1 hospital, the complainant had visited G.B. Pant Hospital Department of Gastroenterology in last week of March 2008 vide OPD no 1445174 and the doctors there conducted Endoscopic Retrograde Cholangio Pancreaticography (ERCP) on 01.04.2008 vide report no. 4/414. The treatment for two diseases as depicted in the USG reported dated 25.03.2008 are as under:

For cholecystitis with cholelithiasis (stone in gallbladder) is laparascopic open cholecystectomy i.e. removal of gallbladder with stones

For choledocholelithiasis is removal of stones through ERCP procedure.

The complainant was explained both procedure in detail by OP2 when complainant informed OP2 that ERCP was already conducted a month ago as aforementioned which report revealed Normal Cholangiogram (common bile duct clear of stones.)

Therefore after taking consent from complainant’s husband the complainant was admitted in OP1 for treatment of (cholecystitis with cholelithiasis (stone in gallbladder) only for laparascopic open cholecystectomy i.e. removal of gallbladder with stones. Before surgery, relevant investigation was carried out on 02.05.2008 i.e. Haemogram, blood sugar, blood urea, liver function, serum amylase, urine, x-ray chest and ECG after which laparoscopic cholecystectomy was done by OP2 on 03.05.2008. The operation and post operation period was uneventful and complainant was recovering well and was discharged on 05.05.2008 with advice with regular follow up. The OPs have submitted that no ERCP for choledocholelithiasis was done by OP2. OPs have further submitted that there is no negligence or deficiency of service on their part and denied having told the complainant of shadow of pins in the subsequent USG report dated 03.06.2008 post surgery or that they are dissoluble. Per contra, OPs told the complainant that the shadow seen in GB Fossa might be due to ligaclips applied during surgery and advised her to continue taken medication for two-three months. OPs have taken defence that the MRI of upper abdomen was done after two years and three months of surgery and did not show any negligence on the part of OP2 in conducting the surgery dated 03.05.2008. OPs have submitted that there was possibility of some micro tiny particles left in the CBD of the complainant when her ERCP was conducting by G.B. Pant Hospital on 01.04.2008 which remain undetected and grew larger with passage of time causing pain to the complainant. OPs relied upon the ratio of the judgment in Kusum Sharma Vs Batra Hospital and Medical Research Centre AIR 2010 SC 1050 laid down by Hon'ble Supreme Court with respect to principles to be born in mind while deciding case of medical negligence. OPs therefore urged for dismissal of the complaint on the defence thus taken.

5. Written statement was filed by OP2 in which he took the preliminary defence that the complainant was admitted in OP1 by OP3 on 02.05.2008 for pain in her abdomen and had showed her ultrasound report dated 25.03.2008 from Unique Diagnostic as advised earlier from doctors of Gopal Nursing Home. The said report revealed choledocholelithiasis (stone in common bile duct) and chronic cholecystitis with cholelithiasis (stone in gallbladder) with presence of multiple calculi within lumen. The complainant was examined and treated by OP2 who then conducted her surgery on 03.05.2008. OP2 has submitted that prior to her complainant visited to OP1 hospital, the complainant had visited G.B. Pant Hospital Department of Gastroenterology in last week of March 2008 vide OPD no 1445174 and the doctors there conducted Endoscopic Retrograde Cholangio Pancreaticography (ERCP) on 01.04.2008 vide report no. 4/414. The treatment for two diseases as depicted in the USG report dated 25.03.2008 are as under:

For (cholecystitis with cholelithiasis (stone in gallbladder) is laparoscopic open cholecystectomy i.e. removal of gallbladder with stones

For choledocholelithiasis is removal of stones through ERCP procedure.

The complainant was explained both procedure in detail by OP2 when complainant informed OP2 that ERCP was already conducted a month ago as aforementioned which report revealed Normal Cholangiogram (common bile duct clear of stones.)

6. Therefore after taking consent from complainant’s husband, the complainant was admitted in OP1 for treatment of (cholecystitis with cholelithiasis (stone in gallbladder) only for laparoscopic open cholecystectomy i.e. removal of gallbladder with stones. Before surgery, relevant investigation was carried out on 02.05.2008 i.e. Haemogram, blood sugar, blood urea, liver function, serum amylase, urine, x-ray chest and ECG after which laparoscopic cholecystectomy was done by OP2 on 03.05.2008. The operation and post operation period was uneventful and complainant was recovering well and was discharged on 05.05.2008 with advice with regular follow up. The OP2 have submitted that no ERCP for choledocholelithiasis was done by OP2. OP2 has further submitted that there is no negligence or deficiency of service on their part and denied having told the complainant of shadow of pins in the subsequent USG report dated 03.06.2008 post surgery or that they are dissoluble. Per contra, OP2 told the complainant that the shadow seen in GB Fossa might be due to ligaclips applied during surgery and advised her to continue taking medication for two-three months. OP2 advised investigation of serum bilirubin, serum amylase, serum alkaline phosphates which came normal indicative of no obstruction in CBD. OP2 has taken defence that the MRI of upper abdomen was done after two years and three months of surgery and did not show any negligence on the part of OP2 in conducting the surgery dated 03.05.2008. OP2 has submitted that there was possibility of some micro tiny particles left in the CBD of the complainant when her ERCP was conducting by G.B. Pant hospital on 01.04.2008 which remain undetected and grew larger with passage of time causing pain to the complainant. Lastly OP2 defended himself by submitting that he was a well qualified doctor having good name in the field of surgery and conducting the operation of complainant on 03.05.2008 successfully after considering all her reports and conducting necessary medical tests. Therefore OP2 prayed for dismissal of the complaint on the grounds of defence taken.
7. Rejoinder on behalf of the complainant was filed in rebuttal to the defence taken by the OPs in their respective written statements whereby the complainant submitted that ERCP done at G.B. Pant Hospital on 01.04.2008 was only for detection of disease of the complainant and while admitting investigation having been carried out on 02.05.2008 prior to surgery, complainant submitted that no ultrasound was asked for by the OPs who conducted surgery on the basis of ultrasound report dated 25.03.2008 with assurance by OP2 that her disease shall be removed. Complainant submitted that contrary to OPs averment of having conducted one surgery for cholecystitis, two surgeries were conducted by OP2. Therefore complainant prayed for relief claimed.
8. Evidence by way of affidavit was filed by the complainant reiterating her grievance against the OPs and submitted in addition that post June 2008, complainant felt pain in her abdomen in August 2010 and approached OP1 hospital and met OP2 who then advised her to seek treatment in a government hospital. Therefore complainant went to LNJP hospital New Delhi where on advice of the treating doctor to get MRI of abdomen done the complainant got the same done on 15.09.2010 from Dr. Gulati Imagine Institute which report revealed residual gallbladder with calculi in GB lumen with choledocholelithiasis and multiple hypo intense filling defect in CBD suggestive of calculi. Thereafter she was operated upon 28.10.2010 at LNJP Hospital, New Delhi. The complainant has exhibited the documents filed / relied upon by her in complaint as well as evidence as Ex C/W 1/1 to C/W 1/18 i.e. from ultrasound report dated 25.03.2008 from Unique Diagnostic, treatment / surgery documents alongiwth medical bills amounting to approx. Rs. 16000/- (rounded off) till OPD registration card dated 12.11.2010 issued by LNJP Hospital inclusive of all medical treatment records of her treatment with OPs and legal notice with postal receipt dated 07.10.2010 through her counsel to OPs. The complainant had submitted that prior to the MRI / MRCP report dated 15.09.2010, she had visited at LNJP Hospital in August 2010 as OPD patient and subsequently was admitted there from 26.10.2010 to 02.11.2010 for gallbladder removal surgery. Complainant has additionally placed on record her treatment records at LNJP & G.B. Pant Hospital from August 2010 till April 2016, where she underwent surgery and treatment four times and has exhibited the documents from CW 1/19 to C/W 1/37.
9. Evidence by way of affidavit was filed by OP1 & OP3 through        Dr. Rajender Katra, Medical Director of OP1 reiterating the defence taken in the written statement.
10. Evidence by way of affidavit was filed by OP2 reiterating the defence taken in his written statement and exhibited copy of the consent form of husband of complainant with respect to treatment of chronic cholecystitis with cholelithiasis by way of laparoscopic / open cholecystectomy under GA, copy of relevant investigation report of complainant taken pre-surgery on 02.05.2008 and copy of treatment chart, vitals chart and progress records of the complainant during her admission with OP1 from 02.05.2008 to 05.05.2008 signed by OP2. The said documents were exhibited as Ex OP2/1 to OP2/3.
11. Written arguments were filed by all the parties in reassertion / reiteration of their respective grievance / defence. The application  filed by OP2 alongwith their written statement was allowed and vide reply thereto dated 29.11.2017 from Medical Records Department G.B. Pant Hospital, it was submitted that all medical treatment documents pertaining to complainant at OPD, the same always remain with the patient as procedure. Thereafter, in view of complexity of the matter pertaining to medical negligence alleged by complainant against OPs, this Forum vide order dated 06.12.2017 sought medical opinion of expert from GTB Hospital, Delhi with directions issued on 28.02.2018 to send the complete case file to M.S. GTB Hospital. Vide medical opinion report dated 09.04.2018, the Medical Director GTB Hospital submitted the same after constituting a Board of one Director Professor and HOD surgery and a Professor Department of Surgery both from UCMS and GTBH.
12. Oral arguments were addressed by all parties who were heard at length by this Forum. The brief points that fall for consideration are whether:

1. OP2, the operating surgeon was negligent in his treatment/ surgery of cholecystectomy done on the complainant, during surgery and responsible for                post-operative complications?
2. ‘Duty of care’ as laid down in medical jurisprudence had been followed by OP2 by taking all precautionary measure as required under normal medical parlance?
3. Complainant and / or her family (husband) was informed of partial cholecystectomy / compromised surgery (removal of gallbladder) by OPs particularly OP2 and consent taken for the same thereby to determine whether complainant and / or her husband were already in the knowledge of compromise surgery conducted on the complainant?
4. All OPs are liable i.e. OP1 vicariously for acts of OP2 & OP3 who were operating surgeon and consulting doctor respectively working for gain with OP1?

13. At the outset, it is made clear that as far as documentary evidence placed on record by complainant is concerned, we shall be restricting ourselves to consideration of documents for treatment undergone by her from May 2008 till November 2010 inclusive of legal notice i.e. Ex C/W 1/1 to C/W 1/18 till filing of this complaint in November 2010 and all subsequent documents post filing of the complaint are inadmissible as per law and therefore shall not be dealt with or considered for the purpose of this case. Complainant is barred by law to file any additional / unrelated medical documents once the same complaint was remanded back by Hon’ble SCDRC for fresh adjudication by this Forum having set aside its previous order dated 04.05.2011. Therefore the documents that the complainant has additionally placed on record with respect to her treatment at LNJP Hospital from August 2010 till April 2016, where she underwent surgery and treatment four times exhibited as the documents from CW 1/17 to C/W 1/37 shall not be considered part of record and stand deleted.  
14. We have heard the counsels of all parties and OP2 in person in the light of submission made by them as per their respective pleadings. We have perused the entire evidence, medical record and expert opinion. We now address ourselves firstly to whether there was any negligence on the part of OP2 in conducting procedure cholecystectomy on the complainant. The question as to how and by which principle, the court should decide the issue of negligence of a professional doctor and hold him liable for his medical acts /advice given by him/her to his patient which caused him/her some monetary loss, mental and physical harassment, injury and suffering on account of doctor’s medical advice/treatment (oral or operation) is no longer res integra and settled long back by the series of English decisions as well as decisions of Hon'ble Supreme Court. The classic exposition of law on this subject is first laid down in a decision of Queens Bench in the leading case of Bolam Vs. Friern Hospital Management Committee [1957] 1 WLR 582 in which Mc. Nair J. explained the law as:  “where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill… It is well established law that it is sufficient if the exercise the ordinary skill of an ordinary competent man exercising that particular art.” The said law laid down in Bolam’s case is consistently followed by courts worldwide as being correct principle of law known as Bolam Test.  A careful reading of Bolam case shows that the standard of ‘reasonableness’ is implicit in the test. There may be one or more perfectly proper standards; and if he conforms with one of those proper standards, then he is not negligent”. The aforesaid principle has been reiterated and explained by Bingham L.J. in his speech in Eckersley Vs. Binnie (1998) 18 Con LR 1 “Professional Man should have such an awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitation on his skill. He must bring to any professional task he undertakes no less expertise, skill and care then other ordinarily competent members of his profession would bring, but need bring no more. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet”. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. Deviation from normal practices is not necessarily evidence of negligence. To establish liability on that basis it must be shown, (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care. A doctor has a legal duty to take care of his patient. Whenever a patient visits a doctor for treatment there is a contract by implication that the doctor will take reasonable care to treat him. If there is a breach of that duty and if it results in injury or damage, the doctor will be held liable. The doctor must exercise a reasonable degree of care and skill in his treatment; but at the same time he does not and cannot guarantee cure. (cf. Halsbury’s Laws of England 3^rd Edn. Vol.26 Pg.17).” The Hon'ble Supreme Court in its Three Judge Bench judgment in the case of Jacob Mathew Vs. State of Punjab III (2005) CPJ 9 SC examined the law laid down in Bolam test and held that a surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial. The only assurance which such a professional can give or impliedly be given is that he is possessed of requisite skill in that branch of profession practiced by him while undertaking the performance of task entrusted to exercise his skill with reasonable competence and this is what the person approaching him can expect. The Hon'ble Supreme Court further observed in the Jacob Mathew judgment that different doctors have different approaches, some have more radical while some have more conservative approaches. All doctors cannot be fitted in to a strait-jacketed formula, and cannot be penalized for departing from that formula. Hon'ble Lordships further observed that simply because a patient has not favorably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straight away liable for medical negligence by applying the doctrine of Res Ipsa Loquitur. Hon'ble Supreme Court in Martin F. D’Souza Vs Mohd Ishfaq  (2009) CPJ 32 (SC) held on lines of Lord Denning’s important observation in Hucks Vs Cole (1968) 118 New L J 469 that “a medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of other. A medical practitioner would be held liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field”. In Derr V. Bonnev,231 p 2d 637, Wash. 1951, the Court’s definition of negligent treatment is an excellent statement of the general definition of a physician’s legal responsibility in treatment:

1. Before a physician or surgeon can be liable for malpractice, he must have done something in the treatment of his patient which the recognized standard of medical practice in his community forbids in such cases or he must have neglected to do something required by these standards.
2. In order to obtain a judgment against a physician or surgeon, the standard of medical practice in the community must be shown and further, that the doctor failed to follow the method prescribed by that standard.
3. It is not required that physicians and surgeons guarantee results, nor that the result be what is desired.
4. The testimony of other physicians that they would have followed a different course of treatment than that followed by the defendant or a disagreement of doctors of equal skill and learning as to what the treatment should have been, does not establish negligence.

In the landmark judgment of Kusum Sharma & Ors. Vs Batra Hospital and Medical Research Centre & Ors. I (2010) CPJ 29 (SC), the Hon'ble Supreme Court, while deciding whether the medical professional is guilty of medical negligence held that following well known principles must be kept in view interalia:

(ii) negligence in an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not negligence merely based upon error of judgment

(iv) a medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

(v) in the realm of diagnosis and treatment there is a scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor

(vii) negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.

Hon'ble Supreme Court in Maharaja Agrasen Hospital Vs. Master Rishabh Sharma and Ors. and Pooja Sharma Vs Maharaja Agrasen Hospital I (2020) CPJ 3 (SC) laid down the parameter of medical negligence as comprising the following constituents:

1. Legal duty to exercise due care on the part of the medical profession;
2. Failure to inform the patient of risk involved;
3. The patient suffers damage as a consequence of                     undisclosed risk by the medical profession;
4. If the risk has been disclosed, the patient would have avoided the injury;
5. Breach of the said duty would give rise to an actionable claim of negligence

The Hon'ble Supreme Court in this judgment further observed that the cause of action for negligence arises only when damage occurs since damage is a necessary ingredient of this tort. In a complaint of medical negligence, the burden is on the complainant to prove breach of duty, injury and causation. The Hon'ble Supreme Court in this regard relied on its previous judgment of Post Graduate Institute of Medical Education and Research Vs. Jaspal Singh II (2009) CPJ 92 (SC) in which Hon'ble Supreme Court held that the injury must be sufficiently proximate to the medical practitioner’s breach of duty and in the absence of evidence to the contrary adduced by the opposite party, and inference of causation may be drawn even though positive or scientific proof is lacking

The Hon'ble National Commission has been consistently following the settled law as aforementioned in landmark judgment passed by it on the topic of “medical negligence” viz Dinesh Kaushal & Ors. Vs Dr. K.K. Khurana III (2002) CPJ 297 (NC), Mam Chand Vs. Dr. G.S. Mangat of Mangat Hospital I (2004) CPJ 79 (NC) and Deepak Kumar Satsangi (Dr.) Vs Sanjeevan Medical Research Centre Pvt Ltd. III (2016) CPJ 96 (NC).

To succinctly bring the rival contentions into focus after having exhaustively dealt with the law on medical negligence, it may be stated in brief that the complainant is alleging medical negligence on the part of OP2 in conducting partial cholecystectomy surgery which led to further complications in as much as multiple calculi were seen in pocket of GB fossa post cholecystectomy with dilated CBD showing calculus therein merely a month after surgery conducted on 03.05.2008 i.e. on 03.06.2008 vide USG report of whole abdomen issued by Unique Diagnostic exhibited as Ex CW1/7. The OP2 has vehemently denied the allegation on ground of having conducted the said surgery successfully with utmost care and as per standard procedure. In Bolitho Vs. City and Hackney Health Authority (1996) 4 ALL ER 771, Lord Browne Wilkinson of Five Judge Bench of House of Lords held that the course adopted by medical practitioner must stand a test to reason “the Court is not bound to hold that a defendant doctor escapes liability for negligence just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant’s treatment or diagnosis accorded with sound medical practice. The court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis”. He held that “the judge before accepting a body of opinion as being responsible, reasonable and respectable will need to be satisfied that in forming their views, the experts have directed their mind to the question of comparative risk and benefit and have reached a defensible conclusion on the matter”. In 1969, the Supreme Court in the case of Dr. Laxman Balakrishna Joshi Vs. Dr. Trimbak Bapu Godbole, AIR 1969 SC 128 held: A person who hold himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for that purpose,

1. He owes a duty of care in deciding whether to undertake the case,
2. He owes a duty of care in deciding what treatment to give, and
3. He owes a duty of care in the administration of that treatment

A breach of any of these duties gives a right of action for negligence to the patient.

Hon'ble Justice S. B. Sinha in Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee III (2009) CPJ 17 (SC) has preferred Bolitho test to Bolam test and redefined medical negligence saying that the quality of care to be expected of a medical establishment should be in tune with and directly proportional to its reputation. The decisions also says that the court should take into account patient’s legitimate expectation from the hospital or the concerned specialist doctor of due care from point of admission to his discharge and review of his condition thereafter. In P.B. Desai Vs State of Maharashtra (2013) 15 SCC 481, the ‘Duty of Care’ which a doctor owes towards his patient has been clearly explained by Hon'ble Supreme Court as follows: “once It is found that there is ‘duty to treat’ there would be a corresponding ‘duty to take care’ upon the doctor qua his patient of ethical / legal character arising in a contractual relationship. Ethical ‘duty to treat’ on the part of doctor is clearly covered by Code of Medical Ethics 1972, Clause 10 of which captions Patient must not be neglected.” Therefore the Hon'ble Supreme Court implied by the said judgment that duty of care of treating doctor did not end with surgery but post-operative care as well. The Hon'ble Supreme Court in Arun Kumar Manglik Vs. Chirayu Health & Medicare Pvt. Ltd. & Anr 2019 SCC OnLine SC 197 passed in CA no. 227-228/2019 decided on 09.01.2019 observed that duty of care to be adopted by medical professional should be a ‘patient centric approach’ and that “In the practice of medicine, there could be varying approaches to treatment. There can be genuine difference of opinion. However, while adopting a course of treatment, the medical professional must ensure that it is not unreasonable. The threshold to prove unreasonableness is set with due regard to the risks associated with medical treatment and the conditions under which medical professionals function. This is to avoid a situation where doctors resort to ‘defensive medicine’ to avoid claims of negligence, often to the detriment of the patient. Hence, in a specific case where unreasonableness in professional conduct has been proven with regard to the circumstances of that case, a professional cannot escape liability for medical evidence merely by relying on a body of professional opinion.’’

On scrutiny of the documents relied upon by OP2 in evidence by way of affidavit filed by him, it is apparent that authorization for medical and / or surgical treatment was taken from complainant’s husband  by OPs on 02.05.2008 for laparoscopic / open cholecystectomy under GA to be conducted on the complainant which form has been signed by complainant’s husband.                       Pre-operative hematology and urine analysis and blood bio chemistry test were also conducted of the complainant in OP1. As per the progress record of the complainant maintained by OPs during her admission, surgery and discharge for the period 02.05.2008 to 05.05.2008, it is revealed that complainant had undergone ERCP a month earlier at G.B. Pant hospital which EPT revealed normal cholangiogram and therefore she was suggested to undergo cholecystectomy because ultrasound report revealed multiple calculi in GB and since her CBD was found clear,  the other procedure for choledocholelithiasis i.e. removal of stones through ERCP was not performed by OP2. Consent for surgery was given on 02.05.2008. On 03.05.2008 i.e. the date of surgery, OP2 has made recording of progress in which he has noted that he had tried to dissect lower part of GB and cyst duct but the same could not be dissected due to bleeding and therefore the procedure was stopped  for safety of complainant. The gallbladder was opened up and bile and stones were taken out of it after which liga clips were applied to lower part of GB. Gallbladder was separated from liver bed and taken out. Thereafter, the wound was closed after heamatosis and complainant’s attendant (her husband) was informed about inability to dissect out lower part of gallbladder due to adhesion which was left in situ. Subsequent progress notes post-operative from 03.05.2008 to 05.05.2008 revealed that the complainant’s vitals were normal and stable, recovery satisfactory and general condition stable with no vomiting or distress and as per noting made on 05.05.2008 before discharge, OP2 has noted that the complainant was informed about the procedure (due to adhesion lower part of GB left in situ) and complainant be discharged. This brings us to a most vital and cardinal aspect for adjudication in this matter which is whether the complainant was made aware of by OPs particularly OP2 about compromise / partial surgery with respect to partial removal of gallbladder and lower portion of it left in situ due to complications during surgery and informed consent / implied knowledge can be inferred in this regard. The Hon'ble Supreme Court in landmark judgment of Samira Kohli Vs Prabha Manchanda & Ors I (2008) CPJ 56 (SC) held that informed written consent of patient is must for a surgical procedure and has dealt extensively with the principles relating to the concept of consent. The Hon'ble Supreme Court in the said judgment summarized principles relating to consent as follows:

A doctor has to seek and secure the consent of the patient before commencing a “treatment” (the term “treatment” includes surgery also). The consent so obtained should be real and valid, which means that: the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what he is consenting to.”

 The Hon'ble Apex Court also observed that “it may be that postponement of the additional procedure (say removal of an organ) may require another surgery, whereas removal of the affected organ during the initial diagnostic or exploratory surgery would save the person from the pain and cost of a second operation. Howsoever, practical or convenient the reason may be, they are not relevant. What is relevant and important is the inviolable nature of the patient’s right in regard to his body and his a right to decide whether he should undergo the particular treatment or surgery or not. That unless the unauthorized additional or further procedure is necessary in order to save the life or preserve the health of the patient and it would be unreasonable to delay the further procedure until the patient regains consciousness and takes a decision, a doctor cannot perform such procedure without the consent of the patient”. This principle was followed by Hon'ble Supreme Court in its judgment of Prasanna Lakshmi Vs. Maxivision Laser Centre Pvt. Ltd. II (2019) CPJ 417 (NC) in which the Hon'ble Supreme Court held the Lasik Centre deficient in service for not taking ‘Informed Consent’ from the complainant for common complications of ‘Dry Eyes’ post lasik operation nor giving proper advised for correction of post-operative complication. The ‘informed consent’ is defined in Taber’s Cyclopedic Medical Dictionary (also quoted in Samira Kohli’s judgment) as thus:

            Consent that is given by a person after receipt of the following information: the nature and purpose of the proposed procedure or treatment; the expected outcome and the likelihood of success; the risks; the alternatives to the procedure and supporting information regarding those alternatives; and the effect of no treatment or procedure, including the effect on the prognosis and the material risks associated with no treatment. Also included are instructions concerning what should be done if the procedure turns out to be harmful or unsuccessful.

Code of medical ethics laid down by Medical Counsel of India (approved by Central Government u/s 33 of Indian Medical Act 1956) contains a chapter related to disciplinary action enumerating list of responsibilities, violation of which amounts to professional misconduct. Clause 13 of the said chapter places the responsibility on the doctor to obtain in writing consent from family member of the patient or the patient before performing any operation. The Hon’ble Apex Court in Samira Kohli judgment laid down the consent should be real, valid and voluntary on the basis of adequate information concerning the nature of treatment / procedure to enable the patient to make a balance judgment whether to submit himself to a particular treatment or not. This means that the doctor should disclose (a) nature and procedure of treatment with its purpose, benefits and effect (b) alternatives if any (c) substantial risks (d) adverse consequences of refusing treatment. Further it was held that the only exception to no defence for  an unauthorized additional surgery found beneficial to the patient to relieve him from future pain and suffering would be if such procedure is necessary to save the patient life or preserve his health for which consent cannot be taken without delay of patient regaining consciousness and taking decision and therefore there can be a common consent for a particular surgical procedure and additional or further procedure that may become necessary during the course of surgery. The Hon'ble Supreme Court in the judgment of Nizam Institute of Medical Sciences Vs Prasanth S. Dhananka and Ors II (2009) CPJ 61 (SC) held that consent given by complainant for excision biopsy which was an exploratory procedure cannot be by inference taken as implied consent for surgery. Therefore, the Hon'ble Supreme Court in the said case reiterated that unless the unauthorized additional or further procedure is necessary in order to save the life or preserve the health of the patient and it would be unreasonable (as contrasted from being merely inconvenient) to delay the further procedure until the patient regains consciousness and takes a decision, a doctor cannot perform such procedure without the consent of the patient.

To get utmost clarity on this medical issue of partial / compromise surgery involved in the present case, the complete case file was referred for medical opinion to Surgery Department of GTB Hospital vide order dated 28.02.2018 by this Forum guided by the ratio by Hon’ble Apex Court in V. Kishan Rao Vs Nikhil Super Speciality Hospital III (2010) CPJ 1 (SC) in which the Hon'ble Supreme Court in Para 17 laid down that expert opinion is required to establish medical negligence in a complicated case such that a Consumer Forum cannot resolve without expert evidence. The Board of the said hospital comprising Director Professor and HOD Surgery Department and Professor of the said department, vide report dated 09.04.2018 opined as under:

“The complexity of cholecystectomy becomes evident only after the operation is started. Partial removal of gallbladder is an accepted treatment opinion in case of difficult cholecystectomy, for the safety of the patient. This is left to the surgeon’s judgment. Hence the initial operation of partial cholecystectomy done by D. L.P. Dugar at Jyoti Clinic & Nursing Home is as per the accepted operative options and cannot be considered as negligent.” However, the said opinion was silent on the issue of informed consent for partially cholecystectomy and confined its opinion only on the procedure performed being an accepted one in case of difficult cholecystectomy for partial removal of gallbladder.  

 In Maynard Vs West Midlands Regional Health Authority [1985] 1 All ER 635, Lord Scarman held: “A case which is based on an allegation that a fully considered decision of two consultants in the field of their special skill was negligent clearly presents certain difficulties of proof. It is not enough to show that there is a body of competent professional opinion which considers that there was a wrong decision, if there also exist a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances.”  

15. Now we address ourselves to the contention of the complainant as to whether there was any negligence on the part of treating doctor OP2 in conducting cholecystectomy surgery of the complainant’s gallbladder in May 2008 which allegedly caused post-operative complications of development of calculi in her GB Fossa and CBD diagnosed in June 2008 and operated upon in October 2010 and also if ‘Duty of Care’  and ‘Consent’  as specified in medical jurisprudence had been observed and taken by OPs particularly OP2 with respect to complainant’s surgery undertaken by OP2 in OP1 hospital. On this key aspect for adjudication, we are guided by the pearls of wisdom of Hon'ble the then Chief Justice of India in Jacob Mathew’s case (supra) which read as under: 

“There is a marked tendency to look for a human actor to blame for an untoward event, a tendency that is closely linked with a desire to punish. Things have gone wrong and therefore somebody must be found to answer for it. For a medical accident or failure, the responsibility may lie with the medical practitioner, and equally it may not. The human body and its working is nothing less than a highly complex machine. Coupled with the complexities of medical science, the scope for misimpressions, misgivings and misplaced allegations against the doctor cannot be ruled out. One may have notions of best or ideal practice which are different from the reality of how medical practices carried on or how the doctor functions in real life. Dealing with a case of medical negligence needs a deeper understanding of practical side of medicine. The human body and medical science, both are too complex to be easily understood. To hold in favour of existence of negligence, associated with the action or inaction of a medical professional, requires an in-depth understanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability.’’ In this regard, we are guided by the landmark judgment of Hon'ble Supreme Court in S.K. Jhunjhunwala (Dr.) Vs. Dhanwanti Kumar II (2019) CPJ 41 (SC) in which case the surgery of gallbladder was done by the doctor and while consent was given to perform only ‘laparascopy surgery’, the doctor proceeded to perform ‘conventional surgery’ and it was alleged that no separate consent for the same was taken whereas in one of the clauses in the consent form, the doctor was entitled to perform conventional surgery as a substitute to the laparoscopic one. In this case the Hon'ble Supreme Court held that there was no need to have another Consent Form to do the conventional surgery in the light of authorization contained in that Form itself if there were complications with respect to inflammation, adhesion and swelling on the gallbladder at the time of doing the laparoscopic surgery of gallbladder. After appreciation of the entire case record before us in particular the progress record of surgery filed as exhibited by OP2 as OP2/1 and also the medical opinion submitted by medical expert in the Department of Surgery GTB Hospital, we are of the considered opinion that there was no negligence on the part of operating surgeon OP2 in having conducting partial / compromise cholecystectomy of the complainant given the complications of dense adhesion at porta hepatis and risk of bleeding which could have worsened the situation and therefore in his prudent judgment, OP2 seperated the gallbladder from liver bed (GB fossa) after taking out bile and stones from the gallbladder and a portion of gallbladder was left in situ. Therefore, essential component of negligence viz existence of duty to take care which the hospital/ doctor owes to the patient but breached causing damage of injury to the patient was not present in this case.

This brings ourselves to address as to whether the complainant was properly monitored post operation and also if “Duty of Care” was followed by OP2 as per medical jurisprudence. Our observation in this context is in the affirmative and in favour of OP2. The ‘duty of care’ for a medical professional starts from the time the patient gives an implied consent for his treatment and the medical professional accepts him as a patient for treatment, irrespective of financial considerations. This duty starts from taking the history of the patient and covers all aspects of the treatment, like writing proper case notes, performing proper clinical examination, advising necessary tests and investigations, making a proper diagnosis, and carrying out careful treatment. We are guided by the medical opinion in this regard as well which even the complainant has not objected to. The OPs have placed on record copy of proper case notes, pre-surgery examination / test/ investigation of the complainant and daily progress notes during the period of admission of the complainant with OP1 from 02.05.2008 to 05.05.2008 in detail where the OPs have recorded the condition of the complainant and notes during operation. All parties were in concurrence that one month after cholecystectomy, when the complainant approached the OPs in June 2008 with pain in abdomen and ultrasound report revealing multiply calculi in GB fossa, the OPs had prescribed medication and conservative treatment which gave complainant relief. It was only after more than two years of surgery i.e. in August-September 2010 that complainant again approached OPs with abdominal pain complaint after which she took referral / opinion and treatment in LNJP hospital because her ultrasound dated 08.08.2010 and MRI with MRCP dated 15.09.2010 showed calculus in gallbladder suggestive of cholelithiasisand choledocholelithiasis i.e. stone in gallbladder as well as in CBD which may have developed within those two years gap from surgery in May 2008 to August 2010 given the tendency of such co-morbidity as can be gauged from her first USG report dated 25.03.2008 and ERCP procedure between 01.04.2008 to 07.04.2008 having undergone by her at G.B. Pant Hospital prior to cholecystectomy in May 2008 for suspicion of calculi in CBD and where she was advised to undergo cholecystectomy due to formation of calculi in her gallbladder. The very fact that no medical record of any treatment post-surgery till next two years is manifest of no post-operative complication or negligence on the part of OPs in operating upon the complainant. Even the medical opinion very clearly opines that the partial cholecystectomy done by OP2 at OP1 hospital was as per the accepted operative options and cannot be considered as negligent. We are further guided on aspect of importance / relevance of medical opinion by the settled law passed by Hon'ble Supreme Court in Smt. Vinitha Ashok Vs. Laxmi Hospital I (2002) CPJ 4 (SC) in which the Hon'ble Supreme Court held that a doctor will not be guilty of negligence if he had acted in accordance with practice accepted as proper by a responsible body of Medical Men skilled in thatparticular Art and if he has acted in accordance with such practice and merely anybody’s contrary allegation taking a contrary view will not make him liable for negligence. Martin D’Souza & Jacob Mathew judgments are also embodiments of the same proposition of law for taking medical opinion to avoid harassment to doctors or surgeons or hospital that may not be ultimately found negligent. However, notwithstanding the importance of medical opinion, it is well settled by Hon'ble Supreme Court in Ramesh Chandra Aggarwal Vs. Regence Hospital Ltd. IV (2009) CPJ 27 (SC) and State of HP Vs. Jai Lal (1999) 7 SCC 280 that “a Court is not bound by the evidence of an expert, which is advisory in nature. The Court must derive its own conclusion after carefully sifting through the medical records and whether the standard protocol was followed in the treatment of the patient. The duty of an expert witness is to furnish the court with necessary scientific criteria for testing the accuracy of the conclusion, so as to enable the Court to form an independent opinion by the application of this criteria to the facts proved by the evidence of the case”. The ‘Duty of Care’ does not end with the performance of the surgery and is a duty to treat is in correspondence there with founded on contractual relationship acquiring a legal character. Code of Medical Ethics 1972 cast obligation on the part of doctors for ‘Obligation to the sick’ that “Patient must not be neglected.” All such ingredients / parameters were fulfilled by OP1 & OP2 qua the complainant and this aspect also decided in the favour of the OPs.

The last and most important issue / contention / dispute is that of Consent for the surgery and knowledge about the nature of surgery proposed and conducted. In this regard, the documents before us reveal that the complainant had already undergone ERCP procedure for CBD at LNJP on 01.04.2008 where her CBD found clear with remarks Normal Cholangiogram (common bile duct clear of stones) and therefore was advised to undergo cholecystectomy. A month later i.e. in May 2008 complainant had approached OP1 hospital with complaint of multiple calculi in GB and as per exhibit CW1/4 and CW1/5 pertaining to OPD card filed in original by the complainant, the OPs were duly informed of ERCP procedure having undergone twice at GB Pant Hospital prior to her visit to OPs in which procedure no stone was retrieve in CBD but the complainant had developed pancreatitis post ERCP and therefore immediate laparoscopic cholecystectomy was advised by OPs. In the Consent Form filled by her husband, he had consented to the complainant undergoing laparascopic or open cholecystectomy under GA and such additional operation or procedure as are considered therapeutically necessary during the course of the above mentioned operation / procedure to be conducted by OP2. Therefore, the averment of the complainant of assurance given by OPs for conducting cholecystectomy as well as treatment for choledocholelithiasis is belied. The surgery notes / progress record dated 03.05.2008 and 05.05.2008 submitted by OP2 duly signed by him reveal that during surgery, gallbladder of complainant had dense adhesions at porta hepatis and lower part of GB could not be dissected due to bleeding and was therefore left in situ about which as per OP2, complainant’s attendant was informed and also that the complainant was informed too about the procedure before her discharged on 05.05.2008. However, these are internal progress notes only in possession / knowledge of OP1 & OP2 and are not handed over to the complainant even at the time of discharge. This Forum on thorough scrutiny of the case records discovered that no discharge summary has been filed by any of the parties and the hearing held on 09.12.2019, the complainant submitted that no Discharge Summary for her admission, surgery and discharge by OPs between the period 02.05.2008 to 05.05.2008 was ever given to her. Since the complainant has disputed knowledge and consent for partial cholecystectomy contrary to surgery notes of OP2 in as much as she has contented that she acquired knowledge of presence of residual gallbladder in her body after one month of surgery vide ultrasound report dated 03.06.2008 which reflected multiple calculi in GB fossa, the discharge summary attained importance of a crucial piece of evidence in the present case. Therefore, this Forum directed all OPs to place on record the discharge summary dated 05.05.2008 before this Forum. All OPs during the course of oral argument admitted that no separate consent was taken from the complainant’s attendant for conducting compromise / partial surgery and for leaving part of GB in situ. However, OPs admitted to not having the Discharge Summary pertaining to complainant available in their hospital record. The IMC regulations 1.3.2 framed by medical council of India which are binding on all medical professionals, hospitals whether government or private place them under a statutory obligation to provide medical record to the patient or their attendant and liability to maintain the medical records. The Delhi Medical Council vide circular no. DMC / DHS / F.5 / 2 / 2009 dated 15.05.2009 cast a statutory obligation on all registered medical practitioner and hospitals / nursing home to adhere to the above said regulation 1.3.2 and failure to comply with the same would constitute professional misconduct and entail disciplinary action. The Hon'ble Supreme Court in Federation of Obstetrics and Gynaecological Society of India Vs. Union of India (2019) 6 SCC 283 held that “considering the nature of service rendered by medical professionals, proper maintenance of record is an integral part of medical services.’’ A Seven Judge Bench of the U.K. Supreme Court in Montgomery Vs. Lanarkshire Health Board [2015] UKSC 11 held that “patients are now widely regarded as persons holding rights, rather than as the passive recipients of care of the medical profession.” Therefore, non-availability / non-production of discharge summary by OPs compel us to draw an adverse inference against them for willful concealment of partial cholecystectomy and OPs claim of information of the same allegedly given to complainant’s attendant consequentially becomes highly questionable and doubtful notwithstanding that no separate Consent Form was required for undertaking the said surgery in view of the authorization clause mentioned therein for any additional operation / procedure found necessary during the course of surgery and the fact that the consent was given for removal of gallbladder with stones either through laparoscopic or conventional method. However, the absence of discharge summary raises a big question mark on the valid informed consent. The judgment which is squarely applicable in the present scenario / situation is that of Harmu Hospital & Research Centre Vs. Suman Jaiswal & Anr. II (2018) CPJ 549 (NC) passed by Hon'ble National Commission in which case, the doctor while performing laparoscopic cholecystectomy found that there were complications in gallbladder and therefore did a compromise gallbladder surgery, leaving a large stump of cystic duct and it was alleged that the consent for performing partial cholecystectomy was not taken from the patient and for the failure by doctor to inform the patient’s attendant and not mentioning the same on the discharge summary, he was held liable for deficiency of service to this limited extent and not for the procedure performed by him. Therefore, the only question for meritorious consideration in the present case is that whether the allegation of complainant of concealment of partial cholecystectomy done by OP2 at OP1 hospital is sustainable and if it be so, whether she is entitled to relief and quantum thereof. The laparoscopic cholecystectomy is key hole surgery and the progress record dated 03.05.2008 written by OP2 during performance of surgery revealed that complainant’s gallbladder had dense adhesion at porta hepatis due to which its lower part and cystic duct could not be dissected as there was risk of bleeding and therefore gallbladder was separated from liver and its lower part was left in situ. The internal notes merely give reference to “patient’s attendant informed about inability to dissect out lower part of gallbladder” and clinic notes dated 05.05.2008 again mentioned “patient has been informed about the procedure (due to adhesion lower part of GB left in situ) may be discharged.” However, these are internal notes private to OPs and not in the knowledge of complainant till they were filed before this Forum and the fact that the complainant was not given any discharge summary, these internal notes cannot come to rescue of the OPs. The medical opinion is also silent on the issue of consent / knowledge of compromise surgery and merely has opined on the procedure conducted.

After having exhaustively dealt with the case in hand and the legal discourse discussed threadbare & settled proposition of law, we observe that it is the duty of the doctor to take reasonable care to ensure that a patient is aware of material risks of injury that are inherent in the treatment to avoid complications. An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The OP2 was therefore under a duty to take reasonable care to ensure that the complainant was apprised of any material risk involved in any recommended treatment, and of any alternative or variant treatment. The test of materiality therefore is whether, in the circumstances of the present case the complainant would be likely to attach significance to the risk or the OP2 is or should reasonably be aware that the complainant would be likely to attaché significance to it. Considering the entire facts of the case and medical records and expert opinion, we are of the considered view that no medical negligence can be attributed to OP2 in having conducted partial cholecystectomy on the complainant in May 2008 to avoid serious complications which was the need of the hour notwithstanding that there was reappearance of pain to the complainant after two years in 2010 for which she had to undergo repeated corrective surgeries including removal of residual gallbladder in LNJP Hospital in October 2010. However, the OP1 & OP2 failed to inform about the compromise surgery at the time of undertaking the same to the complainant’s attendant or the complainant at the time of discharge and risks involved for partial procedure done and further absence of discharge summary has also work to the detriment of OP1 & OP2 who were duty bound as per law to handover the same to the complainant at the time of discharge. Therefore, we conclude that failure on the part of treating doctor OP2 on both accounts of failure to take valid informed consent and issue discharge summary to the complainant amounts to deficiency of service to the limited extent and therefore partly allow the complaint to this limited extent against the OPs and direct all OPs to reimburse the sum of Rs. 16,000/- (as per bills and receipts placed on record) alongwith interest @ 6% p.a. from filing of the complaint till realization to the complainant towards the treatment and surgery expense incurred by her during her admission in OP1 from 02.05.2008 to 05.05.2008. We further direct all OPs to pay compensation of Rs. 75,000/- to the complainant for mental, physical and financial harassment. Let the order be complied by all OPs within 30 days from the date of receipt of copy of this order.

16.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
17.   File be consigned to record room.
18.   Announced on  19.06.2020

(N.K. Sharma)     President

(Sonica Mehrotra)  Member