KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No.654/2017

JUDGEMENT DATED: 10.04.2023

(Against the Order in C.C.No.915/2014 of CDRF, Ernakulam)

PRESENT:

APPELLANT:

(by Adv. Tom Joseph)

Vs.

RESPONDENTS:

(by Adv. George Cherian Karippaparambil)

JUDGEMENT

HON’BLE JUSTICE SRI. K. SURENDRA MOHAN : PRESIDENT

          The complainant in C.C.No.915/2014 of the Consumer Disputes Redressal Forum, Ernakulam (District Forum for short) is in appeal.  He is aggrieved by the dismissal of his complaint as per order dated 24.08.2017.  The respondents are the opposite parties in the complaint.  At the time of final hearing, we have been informed that the 2^nd respondent is no more and that it is not necessary to bring his legal representatives on record, in his place.  The parties shall be referred to herein, according to their status before the District Forum.

          2.       The complainant, a 74 year old man was suffering from loss of appetite and fever.  He was referred from the Nirmala Hospital, Muvattupuzha on 17.01.2014 with suspected stone formation in his gall bladder.  He was treated as an inpatient at the 1^st opposite party hospital from 19.01.2014 to 24.01.2014.  He was diagnosed with Calculus Cholecystitis and was recommended to undergo surgery.  Accordingly, a surgery was conducted by the 2^nd opposite party on 30.01.2014.  The case of the complainant is that his gall bladder was surgically removed at that time, by the said procedure called Cholecystectomy.  He was discharged on 05.02.2014, after an uneventful post operative period. 

          3.       After discharge, pus started oozing out from the surgical wound.  Therefore, he was admitted again in the 1^st opposite party hospital on 09.02.2014.  When he was subjected to a scanning procedure, it was revealed that his gall bladder had not been removed as claimed.  After treating him with medication, he was discharged on 19.02.2014.  His discharge summary Exhibit A3 also specifies that his gall bladder was visualised and filled with Calculus.  Therefore, his gall bladder had not been removed by the 2^nd opposite party.  According to him he had paid an amount of Rs.42,381/-(Rupees Forty Two Thousand Three Hundred and Eighty One) for his treatment.  Though he was discharged from the 1^st opposite party hospital as stated above, the discharge of pus did not subside.

          4.       In the above circumstances, the complainant was taken to the Lakeshore Hospital, Kochi.  He was initially given some medicines there and subsequently admitted to the hospital on 19.03.2014 and subjected to a surgery for removing the gall bladder stones and for doing CBD (Common Bile Duct) Stenting.  He was discharged on 21.03.2014.  He was again admitted on 09.05.2014 for diagnostic laparoscopy and abscess drainage and was discharged on 18.05.2014.  Thereafter, he was admitted on 21.07.2014 to the Lakeshore Hospital for subtotal Cholecystectomy and was discharged on 21.07.2014.  According to him he had to spent Rs.2,95,758/-(Rupees Two Lakhs Ninety Five Thousand Seven Hundred and Fifty Eight) towards his treatment expenses at the Lakeshore Hospital.  Though the 2^nd opposite party had claimed that his gall bladder was removed, he had not done so.  It was for the said reason that the complainant had to undergo the ordeal of the subsequent surgeries and to incur additional expenses. 

          5.       According to the complainant, the failure or inability of the 2^nd respondent to identify his gall bladder shows that he had not exercised the normal skill, knowledge or expertise that is expected of a surgeon.  Had the 2^nd opposite party exercised due diligence and carefully removed the gall bladder of the complainant, all further complications could have been avoided.  The complainant had to suffer severe pain, hardships and financial loss due to the negligence on the part of the 2^nd opposite party.  The 1^st opposite party, the employer of the 2^nd opposite party was vicariously liable to compensate the complainant.  He claimed that he was entitled to recover the amount of Rs.2,95,758/-(Rupees Two Lakhs Ninety Five Thousand Seven Hundred and Fifty Eight ) that he had to spent for his treatment.  He claimed a further amount of Rs.10,00,000/-(Rupees Ten Lakhs) as incidental expenses and Rs.3,00,000/-(Rupees Three Lakhs) as compensation. 

          6.       The District Forum admitted the complaint and notices were issued to the opposite parties.  They appeared and contested the complaint by filing separate versions. 

          7.       According to the 1^st opposite party, the 2^nd opposite party had treated the complainant exercising due care and caution.  There has been no omission or negligence in the treatment of the complainant.   Therefore, the complainant was not entitled to claim any amount as compensation from the opposite parties.   The 1^st opposite party has insured itself with M/s Oriental Insurance Company against claims by patients treated at the hospital for any error, omission or negligence.  The policy was valid for the period from 21.02.2013 to 20.12.2014.  Therefore, the Insurance Company was also a necessary party to these proceedings.  On the above grounds, they contended that the complaint was liable to be dismissed. 

          8.       The 2^nd opposite party contended that there was no error, omission or negligence in the treatment that he had provided to the complainant.  He was brought to the casualty on 19.01.2014 at 7.15p.m. with complaints of right hypochondrial pain and vomiting.  On going through the history prepared by Dr. Prasanth Sharma, it was seen that the patient was a non alcoholic.  He was admitted with a diagnosis of acute Calculus Cholecystitis.  He was treated with antibiotics and other medicines.  After he had symptomatically improved, he was discharged on 27.01.2014 with a direction to return for review after one month.  On 29.01.2014, the complainant again reported with right hypochondrial pain.  He was admitted for laparoscopic cholecystectomy.  All the standard pre-operative investigations were carried out and laparoscopy was performed with all precautions on 30.01.2014.  There were dense adhesions detected around the Calot’s Triangle.  The anatomy was totally distorted and gall bladder could not be identified.  Therefore, an open surgery was conducted and the dense adhesions around the stomach and duodenum were released.  The entire area was covered with purulent fluid and abscess.  In spite of thorough dissection, the gall bladder could not be identified.  As per standard procedure, further dissection of the area was avoided to prevent damage to vital structures such as common bile duct, duodenum, hepatic artery and portal vein.  The entire abscess was drained out through saline wash and the abdominal wound was closed with a drain.  The remnants of the abscess wall of the gall bladder were sent for histopathological examination.  The report was ‘non-specific chronic inflammation, connective tissue region of the gall bladder’.  Hence it was presumed that the gall bladder was removed.  After post operative diagnosis he was discharged on 05.02.2014.  On 09.02.2014 at 01.45p.m. the patient came to the casualty with a collection at the surgical site.  There were no complaints of fever or pain.  He was admitted at the surgical unit for evaluation of the surgical collection.  The sample from the collection was sent for culture and sensitivity and the report showed E-coli moderate growth.  There was no pericholecystic collection as seen in the first scan.  Since the collection had subsided and the wound was healing well the patient was discharged on 19.02.2014 with medication and advised to return for review after seven days.  But, he did not show up. 

          9.       According to the 2^nd opposite party the patient was diabetic and aged 74 years. It is on the basis of the histopathological report that the patient had erroneously thought his gall bladder had been removed.  The bystanders of the complainant had been clearly informed that his gall bladder had not been removed.  The complainant was making wild allegations against the 2^nd opposite party, a senior surgeon who had undergone international as well as national training programmes.  He was also a person who had post graduate teaching experience of more than seven years.  The 2^nd opposite party had taken due care and caution in the treatment of the complainant.  There was no negligence or deficiency of service on his part, as alleged. 

          10.     The parties went to trial on the above pleadings.  The evidence in the case consists of the oral evidence of the complainant as PW1 and that of
Dr. H. Ramesh of Lakeshore Hospital as PW2.  Exhibits A1 to A10 documents have been marked on the side of the complainant.  The opposite parties did not adduce any oral evidence.  1^st opposite party filed proof affidavit and Exhibit B1 case records was also marked.

          11.     The District Commission considered the case of the complainant in the light of the evidence adduced and the contentions of the opposite parties.  It has been found that the complainant had not succeeded in proving medical negligence on the part of the opposite parties.  Therefore, the complaint has been dismissed.  It is the said order that is under challenge in this appeal. 

          12.     Advocate Tom Joseph who appears for the appellant vehemently contends that this is a case of serious medical negligence committed by the 2^nd opposite party.  The complainant had approached the 2^nd opposite party when he was sick, relying implicitly on his expertise.  Both the opposite parties were therefore expected to exercise due care and attention in the matter of providing treatment to him.  The complainant had approached him with loss of appetite and fever.   He was referred to the 1^st opposite party hospital by the doctor who was treating him because of suspected gall bladder stone.  He was treated as an inpatient at the Nirmala Hospital from 19.01.2014 to 24.01.2014.  His condition was diagnosed as acute Calculus Cholecystitis.  Initially he was given conservative treatment, but was advised surgery.  Accordingly, surgery was conducted on 30.01.2014 and he was discharged on 05.02.2014.  Exhibit A2 discharge summary shows that his post-operative period was uneventful.  But, after his discharge pus started oozing out from the surgery site.  When the 2^nd opposite party was informed of the same the complainant was asked to come to the hospital.  He was treated as an inpatient again from 09.02.2014 to 19.02.2014.  Exhibit A3 discharge summary mentions that the gall bladder of the complainant was visualised and filled with Calculus.  According to the counsel for the appellant, it is clear from Exhibit A3 that the gall bladder of the complainant had not been removed by the surgery conducted on 30.01.2014.  Reliance is placed on Exhibit A2 to point out that the operation conducted at that time was open Cholecystectomy, which means removal of gall bladder.  Had his gall bladder been removed at that time, the subsequent complications that he had to suffer could have been avoided.  The subsequent hospitalisation of the complainant at the Lakeshore Hospital for jaundice, fever and other symptoms were caused by the failure of the 2^nd opposite party to remove the gall bladder, though a surgery was conducted for the said purpose.  According to the learned counsel, it was because of the negligence of the 2^nd opposite party that the complainant had to undergo the trauma of the subsequent complications.  He had therefore to be admitted again and finally his gall bladder had to be removed at the Lakeshore Hospital.  According to the counsel therefore, the District Commission seriously erred in dismissing the complaint without granting compensation to the complainant. 

          13.     Advocate George Cherian Karippaparambil who appears for the opposite parties submits that the 2^nd opposite party is no more, having passed away during the pendency of this appeal.  No one has been impleaded as his legal representative.  The treatment that was provided to the complainant was in full compliance with the standard medical procedure that is adopted in such circumstances.   When the complainant was initially admitted on 19.01.2014, he was suffering from an infection, which had to be managed first.  Therefore he was treated conservatively with antibiotics and medicines.  It was the after the infection was brought under control that the surgery was conducted on 30.01.2014.  However, the gall bladder of the complainant was not visible during the surgery and was therefore not removed.  The counsel points out that there is nothing in the Exhibit A2 discharge summary to suggest that the gall bladder of the complainant had been removed.  What is stated in Exhibit A2 is only that an open Cholecystectomy was done under general anesthesia on 30.01.2014.  Exhibit A3 refers to the histopathological examination which has mentioned, “no gall bladder”, which only means that no gall bladder was sent for such examination.  Exhibit A3 states that what was examined was, the collection at the surgery site.  At the same time, it has been stated in Exhibit A3 that gall bladder was visualised and filled with Calculus, on ultra sonography investigation.  The counsel points out that, because of extensive adhesions and pus, the gall bladder was not visible.  Therefore, as per the initial procedure, the pus was cleared.  It was the same procedure that was adopted at the Lakeshore Hospital also.  The gall bladder could be visualised only after the pus was cleared and the infection subsided.  Thereafter, the adhesions were detached and it was only during the surgical procedure conducted much later on 22.07.2014 that the gall bladder of the complainant was removed.  Since the treatment was in conformity with the standard procedure adopted in such situations, there was no negligence on the part of the 2^nd opposite party as alleged.  Therefore, the complaint has been rightly dismissed by the District Commission.  On the above grounds, the counsel seeks dismissal of this appeal.

14.     We have heard the respective counsel in detail.  We have been taken through the Lower Court Records of the case as well as the depositions that are available.  We have given our anxious consideration to the various contentions advanced before us. 

          15.     The complainant in this case was referred to the 1^st opposite party hospital by another doctor who suspected gall bladder stones.  The complainant was suffering from loss of appetite and fever at that time.  He was therefore admitted as an inpatient on 19.01.2014 and was managed with conservative treatment up to 24.01.2014, to bring the infection under control.  He was diagnosed with acute Calculus Cholecystitis.  The treatment for such a condition was, stone extraction with Common Bile Duct (CBD) Stenting, Diagnostic Laparoscopy and Abscess Drainage. The complainant was also diabetic. Exhibit A2 discharge summary shows that an open Cholecystectomy operation was conducted on 30.01.2014.  His subsequent hospitalisation was on 09.01.2014 with a complaint that pus was oozing out from the surgery site.  Exhibit A3 discharge summary states that he was managed with conservative treatment. Exhibit A3 shows the following entries:
          “h/o Calculus Cholecystitis               open Cholecystectomy done

(30.01.2014)          operative finding s/o abscess cavity”.

“HPE         no gall bladder”

Exhibit A3 further notes against the ‘investigations’ heading that as per an ultra sonograph done, the gall bladder was visualised and filled with Calculus.  What is evident from an examination of Exhibit A3 is only that an open Cholecystectomy was done, which had arrived at a finding that there was abscess.  The ultra sonograph had found the gall bladder to be visualised and filled with Calculus.  A confusion appears to have been created by the histopathology examination which has reported that there was no gall bladder.  The reference appears to be only to the specimens that were sent for histopathological examination, which did not include the gall bladder.  This is for the reason that, in Exhibit A3 itself it is mentioned that the gall bladder was visualised and was filled with Calculus on ultrasonography examination.  As rightly found by the District Commission, the operation note that forms part of Exhibit B1 makes the above position clear.  It is recorded in page 87 that the gall bladder was not visualised since the area was fully covered with purulent fluid and abscess.  The treatment given to the complainant has been recorded as - abscess was drained, saline wash was given.  The operative procedure executed has been described as diagnostic laparoscopy.  It has been further mentioned that, there were dense adhesions around the stomach and duodenum.  The anatomy was totally distorted.  Gall bladder could not be identified since the area was fully covered with purulent fluid and abscess.   Therefore, abscess was drained and saline wash was given.  Gall bladder abscess was sent for histopathological examination.  It is clear from the above that, what was sent for histopathological examination were only the abscesses.  It also explains why it has been stated in Exhibit A3 that there was no gall bladder.  Apart from the above, it is clear from the treatment records Exhibit A6 of the Lakeshore Hospital that the gall bladder was removed only on 22.07.2014. 

          16.     A contention has been put forward by the counsel for the appellant that, had the gall bladder of the appellant been removed at the 1^st opposite party hospital during the surgical procedure of 30.01.2014, all subsequent complications that the complainant had to undergo could have been avoided.  It is therefore contended that there was deficiency in the treatment given by the opposite parties.  In the above context, it is necessary to notice that when the surgery was conducted on 30.01.2014, the site was filled with pus and purulent matter.  Therefore, the pus was drained and saline wash was given.  During his second treatment as an inpatient from 19.02.2014 also, the complainant was treated on medicines.  Ultrasonography found that the gall bladder was visualised and filled with Calculus.  It was thereafter that the complainant was admitted to the Lakeshore Hospital on 19.03.2014.  The treatment given to him initially was, stone extraction and Common Bile Duct Stenting.  On 19.05.2014 he was again admitted to the Lakeshore Hospital and Exhibit A5 discharge summary shows that he was subjected to Diagnostic Laparoscopy and abscess drainage.  He was again admitted 21.07.2014 and his gall bladder was finally removed only on 22.07.2014.  PW2 the Doctor who treated the complainant at the Lakeshore Hospital is the Expert who has been examined in this case.  In chief examination itself he has deposed that, at the operation on 15^th May 2014 there were adhesions and inflammatory matter making the stomach adherent to the anterior abdominal wall with the presence of pus.  Hence the gall bladder was not visualised.  According to him, when gall bladder is not visualised the pus would have to be drained out if the abscess cavity is to be seen.  During cross examination when his attention was drawn to the operation note at page 87 of Exhibit B1, he has opined that the treatment given as recorded in Exhibit B1 was the standard surgical procedure.  He has further clarified the above aspect by deposing that even at the Lakeshore Hospital, as evident from Exhibit A5 though the patient was posted for surgically removing the gall bladder, due to his condition, with adhesions and pus, a surgery was not advised and he was subjected to only drainage of the abscess cavity.  It was only later on that the gall bladder of the complainant was actually removed.  We do not find anything in Exhibit B1 treatment records of the complainant suggestive of a claim that his gall bladder had been removed at the said hospital.  What emerges from an examination of the treatment records of the complainant produced before us is that, though it was proposed to surgically remove his gall bladder on 30.01.2014, because of the presence of pus and abscess the gall bladder could not be visualised.  In the said circumstances, what was done, was only to drain out the pus and conduct saline wash.  It has come out in evidence that, the treatment provided by the opposite party was in accordance with the standard procedure adopted in the treatment of such a condition.  Therefore, we do not find any deficiency in service on the part of the opposite parties, as alleged.  The complaint has been rightly dismissed by the District Commission. 

           For the foregoing reasons, we find no grounds to interfere with the order of the District Commission that is under challenge or to grant any of the reliefs prayed for in this appeal.  This appeal fails and is accordingly dismissed.  No costs.

SL