KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

C.C. No. 04/2013

JUDGMENT DATED: 18.04.2023

PRESENT:

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

SRI.RANJIT. R                                                                   : MEMBER

COMPLAINANT:

K.P. Firoz, Raziya Manzil, Nenmeli Parambu, Karaparambu P.O., Karikkamkulam, Kozhikode.

(By Advs. Sasthamangalam R. Jayakrishnan & V.K. Prasanth)

OPPOSITE PARTIES:

1. Dr. Jayakesh Jayarajan, Managing Director, PVS Hospital (P) Ltd., Railway Station Road, Kozhikode. 

(By Adv. Preetha John K)

2. Dr. Gokulan, Consultant Gastroenterologist, PVS Hospital (P) Ltd., Railway Station Road, Kozhikode. 

(By Advs. Shyam Padman & S. Reghukumar)

JUDGMENT

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

This is a complaint filed alleging professional negligence and deficiency in service on the part of the opposite parties in the treatment of the complainant and seeking a compensation of Rs. 50,00,000/- jointly and severally from them, together with the litigation expenses incurred in pursuing these proceedings.

2.  The complainant is employed in the Co-operative Urban Bank, Kozhikode.  The 1^st opposite party is a hospital of good reputation certified as ISO 2001-2008.  The 2^nd opposite party is a Gastroenterologist and the head of the department at the 1^st opposite party hospital. During the year 2006 the complainant had undergone treatment of the 2^nd opposite party for persistent stomach pain and a CT scan was conducted on him on 28.06.2006 which revealed that he was suffering from a condition called Recurrent Pyogenic Cholangitis.  He had been referred to the 2^nd opposite party for treatment from the Medical College Hospital, Kozhikode.  The 2^nd opposite party was also a consultant of the Kozhikode District Co-operative Hospital at that time.  Upon diagnosis of the complainant’s ailment he was advised to undergo Endoscopic Retrograde Cholangio Pancreatography (ERCP), an endoscopic procedure for the removal of gallbladder stones that may have entered his bile duct.  It was for undergoing the said procedure that, the complainant was referred to the 1^st opposite party hospital.  Accordingly, clearing of stones through the procedure of ERCP was performed on him during the year 2006 and 2007.  Biliary stenting was also performed on him on 07.07.2008, consequent to this the complainant recovered and was keeping well for some time.  The above procedures were done without admitting the complainant as an inpatient at the 1^st opposite party hospital.  The procedures were done at the Kozhikode District Co-operative Hospital since the 2^nd opposite party was working as a consultant there. 

3.  While so, the complainant was admitted on 04.02.2011 at the 1^st opposite party hospital for ERCP/Sphincterotomy/biliary stenting and partial biliary clearance was done.  He was discharged on 05.02.2011 with direction to report for removal of the stent after three months.  Accordingly the complainant got himself admitted to the 1^st opposite party hospital on 24.05.2011. At that time, he was not suffering from any illness or other discomforts.  He had gone there on the assumption that it was a regular check up, driving his car along with his family.  On the following day, on 25.05.2011 bile duct clearance was done through endoscopy and he was kept under observation.  Normally, the complainant never used to feel any discomfort after such procedure.  However, on 25.05.2011 the complainant experienced severe pain after the procedure.  The pain did not subside even after days.  When the matter was brought to the notice of the 2^nd opposite party, he opined that another endoscopy was necessary to be done.  Accordingly, on 30.05.2011 another stenting and bile duct clearance was done.  However, even after the second endoscopy the severe pain persisted.  In the above circumstances, on 11.06.2011 the complainant had to undergo yet another ERCP/Sphincterectomy/ bile duct clearance and stenting.  By that time, consequent to the repeated endoscopy that was being performed on him, the health of the complainant deteriorated.  The complainant was being administered with strong sedatives since the pain was severe.  However, no attempt to identify the cause for the pain was made.  After a few days, the complainant lost consciousness and was continuing in an unconscious state.  The complainant was shifted to the ICU and was given ventilator support. 

4.  Before the complainant was shifted to the ICU as stated above, swelling had developed over his body.  When the 2^nd opposite party was informed of the same by the relatives of the complainant, he opined that the swelling had occurred because the complainant had not been walking.  However, the complainant’s friends and relatives who had intervened in the matter were not satisfied with the explanation.  Therefore, the complainant was subjected to a CT scan on 17.06.2011 at a private scanning centre near the Medical College Hospital, Kozhikode.  The complainant was taken to the scanning centre which was 8 kms away in an ambulance giving him oxygen support.  It is alleged that, the 1^st opposite party had initially provided the complainant with an empty oxygen cylinder.  When the same was found to be empty, it was returned to the hospital and that only when protests were made, a proper oxygen cylinder was provided and the complainant was taken to the scanning centre. 

5.  Accordingly, the scanning report of the complainant done on 17.06.2011 showed that consequent to the deficient manner in which the stones were removed through endoscopy, perforation had been caused to the pancreas and duodenum of the complainant.  It was also revealed that as a result of the perforation, infection had set in and that the complainant’s internal organs were infected.  It was also informed that unless an emergent surgery was performed to control the infection, even the life of the complainant would be in danger. Accordingly, a surgery was also conducted.  Even after the surgery, it was informed by the doctor that it was difficult for the complainant to survive and therefore his relatives were also informed of the situation.  The relatives and friends of the complainant who were anxious and concerned about the condition of the complainant immediately shifted him to the Lakeshore hospital at Ernakulam on 21.06.2011.  According to the complainant, at this juncture, when the complainant was shifted from the 1^st opposite party hospital to Ernakulam, the 2^ndopposite party had abstained from the hospital.  An amount of Rs. 2,50,000/- was charged as treatment expenses by the 1^st opposite party.

6.  The complainant was under treatment at Lakeshore Hospital, Ernakulam for about 3 months.  His condition was described as Recurrent Pyogenic Cholangitis with Necrotising Pancreatitis and Duodenal Perforation.  According to the complainant, he has understood from the experts at the Lakeshore Hospital, Ernakulam that the treatment given by the opposite parties was not correct.  He was treated by the opposite parties by conducting repeated endoscopy procedure for removal of stones from his bile duct on the assumption that the pain was caused by the stones and that their removal would clear it.  Since even one endoscopy was risky, the performance of repeated endoscopies on the complainant four times was wrong.  It was due to carelessness in the conduct of the endoscopy that damage was caused to the pancreas and duodenal perforation to the complainant.  It was because of the said damage that the complainant was having severe pain.  But, the cause of the pain was also not identified by the opposite party.  As a result, swelling was caused on the complainant’s body.  In spite of the above, he was being administered only sedatives to reduce the pain instead of treating the infection.  It was only after he was shifted to the Lakeshore hospital, Ernakulam, that the cause of his pain was detected and proper treatment given to him.  The omission of the 2^nd opposite party in not diagnosing that the abdominal pain was caused due to duodenal perforation by taking a scan report constitutes deficiency in service. 

7.  According to the complainant, the 1^st opposite party is a hospital that is engaged in providing medical treatment to the poor and underprivileged members of the society at affordable rates.  It was placing implicit faith in the reputation of the 1^st opposite party that the complainant had approached the said hospital for his treatment.  But, in so far as diagnosis of the complainant’s disease was concerned and the treatment of the complainant, their service was seriously deficient.  It is alleged that the 1^st opposite party, motivated only by their objective of financial gain, had deliberately provided treatment that was improper.  The discharge summary that was given to the complainant contained many particulars that are wrong.  It has been wrongly mentioned that the complainant was suffering from jaundice.  No treatment for jaundice was given to him.  As a result of the wrong treatment that was given to the complainant, his life itself was endangered.  Consequently, he had to suffer a lot of physical pain and hardships, apart from financial losses.  The complainant has therefore claimed compensation for his pain and suffering, for which both the opposite parties are responsible.

8.  According to the complainant, he had to spend a total amount of Rs. 2,50,000/- for his treatment at the 1^st opposite party hospital.  It is further alleged that he has incurred a financial loss of about Rs. 10,00,000/- as a result of his treatment at the Lakeshore Hospital.  Apart from the above, as a result of the complications referred to above, his pregnant wife had to be admitted to the hospital and provided with continuous medical treatment up to her delivery causing a total loss of Rs. 50,000/- and a lot of pain, hardships and other difficulties.  Therefore, the complainant has claimed an amount of Rs. 50,00,000/- as compensation from the opposite parties, in addition to his litigation expenses. 

9.  This complaint has been contested by both the opposite parties by filing separate versions. 

10.  According to the version of the 1^st opposite party, there was no negligence, carelessness or deficiency in service on the part of the opposite parties.  The complainant was being treated by the 2^nd opposite party along with other doctors of the 1^st opposite party hospital as per the universally accepted standard medical protocol bestowing all care, caution and attention.  Therefore, the claim made by the complainant for compensation is liable to be dismissed.  The averments in the complaint have been cooked up by the complainant for making undue financial gain.

11.  It is further submitted in the version that the 2^nd opposite party had been treating the complainant at the Kozhikode District Co-operative Hospital (KDCH) where the 2^nd opposite party was a visiting consultant at that time.  The CT scan report dated 28.06.2006 of the Medical College Hospital, suggested the possibility of Recurrent Pyogenic Cholangitis.  The 2^nd opposite party had diagnosed the complainant’s condition as Recurrent Pyogenic Cholangitis and therefore, ERCP and stone removal was performed on him on 09.06.2007 at the 1^st opposite party hospital.  Another ERCP/biliary stenting was done on the complainant by the 2^nd opposite party at the same hospital on 07.07.2008.  On both the occasions the complainant had been admitted to the KDCH and the procedure in the 1^st opposite party hospital was done as a day care procedure and the patient was discharged on the following day. 

12.  The complainant was seen in the Gastroenterology OP Department of the 1^st opposite party on 27.01.2011.  By that time, the 2^nd opposite party had joined the 1^st opposite party hospital as a full time doctor and had stopped attending the KDCH.  On examination, it was found that the complainant was having symptoms of repeated Biliary Colics and Cholangitis.  He was advised to undergo USG (Ultra Sonography) abdomen and other investigations by the 2^nd opposite party.  He was admitted electively to repeat ERCP on 03.02.2011.  On 04.02.2011, the 2^nd opposite party repeated ERCP/Sphincterectomy/Biliary clearance and stenting on the patient with maximum care and caution.  The procedure was uneventful and the complainant was discharged on the following day.  He was advised for review after three months for stent removal and repeat Biliary clearance if found necessary.  He was reviewed in the Gastroenterology OP on 08.03.2011.

13.  The complainant was admitted electively on 24.05.2011and underwent same ERCP/Sphincterectomy/ Bile duct clearance on 25.05.2011 and was noted to have multiple CBD Calculi.  The previous Sphincterectomy was enlarged and calculi was removed.  After the procedure the complainant had mild abdominal pain and vomiting without any fever which persisted on the following day.  This was associated with significant increase in serum amylase level and a diagnosis of post ERCP pancreatitis was made.  He was managed conservatively and had initial improvement.  But, he developed fever on 27.05.2011 and was noted to have increased liver enzymes and bilirubin.  Antibiotics were stepped up but the complainant had another spike of fever on 28.05.2011 and 29.05.2011.  Suspecting cholangitis due to CBD Calculi ERCP was repeated on 30.05.2011 which revealed multiple large CBD Calculi which were cleared and two biliary stents were inserted. Following the above procedure, there were no complaints of pain or fever for three days.  However, on 01.06.2011 he had recurrence of pain and fever, but other vital signs were found to be normal.  Antibiotic therapy was stepped up, but the fever persisted.  On 10.06.2011 the patient developed recurrence of abdominal pain which was associated with increased WCC, increased liver enzymes, increased bilirubin and increased amylase. The clinical picture, Leucocytosis and biochemical profile was that of recurrence of cholangitis.  On 10.06.2011 complainant developed severe back pain and abdominal pain associated with fever.  The USG abdomen was done on the suggested pancreatic ascities, cholelithiasis and pneumobilia.  So ERCP and Biliary clearance and stent exchange was performed on 11.06.2011 and antibiotics were provided.  There were significant improvements on him following the procedure. 

14.  On 16.06.2011 the patient had recurrence of fever associated with tachycardia and tachypnoea.  The patient underwent exploratory laperoctomy, pancreatic necrosctomy, peritoneal lavage and feeding jejunostomy on 17.06.2011.  Post operatively the patient was ventilated and extubated the following day.  The complainant was never put on ventilator on any other occasion during his stay in the 1^st opposite party hospital.  The patient was recovering slowly following the surgery and relatives were informed that recovery would be a slow process.  However, on 21.06.2011 on the fourth post operative day, the relatives of the patient requested for a discharge.  The patient was discharged on 21.06.2011 and the relatives took the patient to Lakeshore Hospital, for further management. 

15.  It is contended by the 1^st opposite party that as evidenced from the records of the Lakeshore Hospital, the complainant was subjected to a CT scan of the abdomen with oral contrast on 22.06.2011. The further treatment that the complainant received from the Lakeshore Hospital was the continuation of the treatment that was being given by the 2^nd opposite party while the patient was in the 1^st opposite party hospital.  Had the complainant remained in the hospital he would have been treated following the same protocol. 

16.   It is the case of the 1^st opposite party that the complainant was given proper and appropriate treatment warranted by the circumstances in this case.  There was no wrong diagnosis.  The discharge summary was issued by the Surgeon Dr. Jaikish Jayaraj, as the 2^nd opposite party was on leave on 21.06.2011.  The relatives of the complainant had even forcibly taken the records relating to the investigation etc. from the custody of the hospital.  However, in the discharge summary it was clearly mentioned that the patient had Recurrent Pyogenic  Cholangitis, multiple ERCPs, post ERCP Necrotising pancreatitis and infected pancreatic fluid collections.  All repeated ERCPs were performed on the complainant under conscious sedation.  No distress was seen in the patient and the patient was comfortable and had improved after the repeated procedures.  In this case, it could be a case of spontaneous duodenal perforation due to acute necrotising pancreatitis. Perforation caused by acute necrotising pancreatitis is a well documented medical phenomenon.

17.  According to the 1^st opposite party the CT scan that was advised by the 2^nd opposite party on the basis of clinical manifestations of fever and infective signs on 17.06.2011 had to be done at another scan centre as the CT scan machine at the hospital was under repair.  The scan was advised because of his fever and suspected pancreatic abscess or liver abscess, in view of his infected pancreatic collection.  As suspected, the CT scan report taken on 17.06.2011 revealed evidence of acute pancreatitis with features of infected pancreatic collection.  As there was no objective evidence from the history or from the clinical features, possibility of duodenal perforation was ruled out.  Laparotomy performed on the same day as an emergency revealed features of severe necrotising pancreatitis and infected pancreatic fluid collection.  The allegation that the patient was taken to the scan centre with an empty oxygen cylinder is denied as no such incident had taken place according to the 1^st opposite party.

18.  The allegation of ERCP complications due to negligence during the procedure is denied.  Post ERCP pancreatitis is a well recognized complication of the procedure and does not indicate negligence.  Duodenal perforation is also a well recognized complication, which has not occurred in this case.  Such complication according to the 1^st opposite party does not indicate negligence.  The absence of the 2^nd opposite party on the date of discharge of the complainant was not wilful.  He was on leave from 18.06.2011 to 22.06.2011 since he had to attend the death anniversary rituals of his late father-in-law.  Along with the 2^nd opposite party there was another gastroenterologist Dr. Jijo Cherian, who was also attending the complainant.  The allegation regarding duodenal perforation diagnosed at Lakeshore Hospital is not admitted.  The repeated ERCPs were warranted in this particular case and the procedures were done in good faith suspecting migration of intrahepatic calculi to the distal CBD causing obstruction and aggravated pancreatitis.  The further allegation of overuse of sedatives and improper investigations are also denied.  The hospital has a well equipped surgical gastroenterology department and a competent gastroenterologist Dr. Jaikish Jayaraj who regularly performed similar and far more complicated surgeries.  According to the 1^st opposite party, therefore there was no carelessness or deficiency in service on the part of either the hospital or the doctors and they had acted as per the accepted standard medical protocol, bestowing all care, caution and attention.  The 2^nd opposite party had exercised utmost care and caution in the treatment of the complainant as expected from an experienced and qualified gastroenterologist.  There was no negligence or deficiency in service on the part of the opposite parties at any point of time in the treatment of the patient and hence they are not liable to compensate the complainant.  They have unnecessarily been dragged into the litigation by the complainant. 

19.  The statement that complainant’s wife who was 7 months pregnant had to be treated as an inpatient in a hospital till her delivery due to the tension caused on hearing that the complainant was put on ventilator is false and purposely made, with ulterior motives.  The further allegation that the patient was deteriorating post operatively is false.  The relatives and associates of the patient had got him discharged on their own accord, even though they were informed that recovery would be a slow process.  The statement that on 17.06.2011 even though a surgery was done on an emergency basis, it was a failure and that the doctor after removing 50% of the pus had intimated the relatives that the complainant’s life was in danger is false and hence denied.  The complainant was not referred to the Lakeshore Hospital as alleged, but was taken there by the relatives of the patient after forcing the opposite party to discharge him.  The amount shown as expenditure of the treatment of the complainant is highly exaggerated and without any basis.  The complainant was treated with due care and expertise and there was no element of negligence or carelessness in his treatment at any point of time.  On the above grounds, the 1^st opposite party sought for dismissal of the complaint. 

20.  The 2^nd opposite party has filed a separate version more or less on the same lines as that of the 1^st opposite party.  It is alleged that the complainant is not a consumer as contemplated by the Consumer Protection Act, 1986 (the Act for short).  There was no negligence, carelessness or deficiency in service on the part of the opposite parties or any of the other doctors or staff attached to the 1^st opposite party hospital.  All due care and attention as required by the universally accepted standard medical protocol was bestowed and all care, caution and attention was given to the complainant in his treatment.  The complainant has not approached this Commission with clean hands.  The 2^nd opposite party as stated was a well qualified, experienced and competent medical practitioner.  He has passed the Membership examination of Royal College of Physicians, Ireland as well as Royal College of Physicians of U.K.  Since 1997 he had been practicing as a senior gastroenterologist in Kozhikode and he is the one with maximum experience in Hepato-biliary and pancreatic interventional procedures in North Kerala.  The 1^st opposite party is a well equipped super specialty hospital having state of the art equipments.  It has super specialty departments in various branches of medicine.  The hospital has a well qualified and well experienced paramedical staff and nurses besides laboratory, X-ray, ultra sound, echo cardiogram etc.  It is an institution recognized by the National Board for several DNB post graduate courses.  According to the 2^nd opposite party, the complainant was referred to the Medical College Hospital, Kozhikode in 2006.  The 2^nd opposite party had treated the complainant initially at the Kozhikode District Co-operative Hospital(KDCH) where he was a visiting consultant at that time.  The complainant had been diagnosed to have Recurrent Pyogenic Cholangitis with history of recurrent cholangitis.  Between the years 2006 and 2008 the 2^nd opposite party had performed ERCP/Sphincterectomy and partial biliary clearance on two or three occasions. On each occasion the complainant was admitted in the KDCH and the procedure was done as a day care in the 1^st opposite party hospital and the patient was discharged on the following day.  The details of the procedures done on the complainant are available in the records relating to his treatment at the said hospital.  Those documents have not been sought to be produced by the complainant. The complainant has never come up for further follow up thereafter. 

21.  The complainant was again seen by the 2^nd opposite party on 27.01.2011.  At that time he had stopped attending KDCH.  The complainant was having symptoms of repeated biliary colics and cholangitis.  The 2^nd opposite party performed ERCP/Sphincterectomy biliary clearance and stenting on 03.02.2011.  The procedure was uneventful and the patient was discharged on the next day.  The complainant was advised to return for stent removal and repeat biliary clearance, after 3 months.  On 24.05.2011 the complainant was again admitted to the 1^st opposite party hospital and he underwent ERCP on 25.05.2011.  He was noted to have multiple CBD Calculi.  The previous sphincterectomy was enlarged and calculi removed.  The complainant had mild abdominal pain and vomiting without any fever after the procedure, which persisted the following day.  This was associated with significant increase in serum amylase level and a diagnosis of post ERCP pancreatitis was made.  He was managed conservatively and had initial improvement.  However, he developed fever on 27.05.2011 and was noted to have increased liver enzymes and bilirubin.  Antibiotics were stepped up but the complainant had another spike of fever on 28.05.2011 and 29.05.2011.  Suspecting cholangitis due to CBD Calculi ERCP was repeated on 30.05.2011, which revealed multiple CBD calculi which were cleared and two biliary stents were inserted.  The complainant improved following the procedure and remained pain free and afebrile for 36 hours.  However, on 01.06.2011 he had recurrence of pain and fever, but other vital signs and clinical examination of abdomen were normal.  Antibiotic therapy was stepped up, but fever persisted.  On 10.06.2011 patient developed recurrence of abdominal pain which was associated with increased WCC (19400), increased liver enzymes (AST: 235, ALT 152, ALP 302), increased bilirubin (5.3/4.3) and increased amylase 780.  The clinical picture, leucocytosis and biochemical profile was that of recurrence of cholangitis.  USG of abdomen on 11.06.2011 revealed ascites, cholelithiasis and pneumobilia.  No focal collections were detected.  Patient underwent repeat ERCP on 11.06.2011 and previous stents were removed.  One large calculus and several small fragmental calculi were cleared and a fresh biliary stent was inserted.  Following ERCP there was significant improvement with relief of pain and on the next 5 days there were only two small spikes of fever. 

22.  However, on 16.06.2011 the complainant developed high grade fever associated with significant abdominal distension which prompted a CECT scan of the abdomen on17.06.2011.  The findings of the CECT scan were discussed in detail with the concerned radiologist.  The fluid collection seen was felt to be either due to leakage of perforation or an infective pancreatic fluid collection, complicating severe necrotizing pancreatitis.  A definite leak could not be demonstrated as the patient refused to drink the oral contrast due to nausea. 

23.  The management for perforation or infected pancreatic fluid collection required surgical drainage and the same was performed immediately along with pancreatic necrosectomy and feeding jejunostomy.  During surgery the surgical gastroenterologist Dr. Jayikish Jayaraj noted features of acute pancreatitis with infected fluid collection but did not find any obvious perforation.  The patient was put on ventilator overnight after the surgery and extubated the following morning.  The complainant was never put on ventilator on any other occasion during his stay in the 1^st opposite party hospital.  The patient was recovering slowly following the surgery and the relatives were informed that recovery would be a slow process.  However, on 21.06.2011, the fourth post operative day the relatives requested for discharge to take the patient to Lakeshore Hospital, Kochi for further management.  The complainant was therefore discharged at their request.  Apart from the 2^nd opposite party, the complainant was also seen by Dr. Jijo Cherian, Gastroenterologist and the surgery was done by the surgical gastroenterologist Dr. Jaikish Jayaraj.  The anesthesia was conducted under the supervision of Dr. Mohamed Sanooj M.D.

24.  From the records produced, it is seen that at the Lakeshore hospital, the complainant underwent CECT scan of the abdomen with oral contrast on 22.06.2011.  The findings were similar to the scan done in Calicut on 17.06.2011.  However, as the patient drank oral contrast, extravasation of contrast was noted from pyloric region of the stomach or first part of the duodenum, suggesting a perforation.  This perforation was noted to be adjacent to the necrotic pancreas.  The complainant continued to receive conservative treatment only at Lakeshore hospital with which, he made gradual recovery and was discharged on 08.08.2011.  He was reviewed at Lakeshore hospital on 10.10.2011 and USG of the abdomen revealed a right sub diaphragmatic collection.  The patient was therefore readmitted on 11.10.2011 and he underwent USG guided aspiration and tube drainage of the collection on the same day and was discharged on 13.10.2011.  The further treatment that the complainant received from Lakeshore hospital was the continuation of the treatment that was given by the opposite parties and had the complainant remained back he would have been treated following the same protocol. 

25.  The complainant was given proper and appropriate treatment that the circumstances warranted.  There was no wrong diagnosis as alleged.  The discharge summary was issued in a hurry by the surgeon Dr. Jaikish Jayaraj, as the relatives of the complainant decided to take discharge suddenly and wanted the summary immediately.  They had even forcefully taken the records relating to the investigation etc. from the hospital.  However, the discharge summary clearly mentioned that the patient had Recurrent Pyogenic Cholangitis, multiple ERCPs, Post ERCP Necrotising pancreatitis and infected pancreatic fluid collections.  The possibility of perforation was raised in the CECT scan report but it could not be demonstrated as the patient could not drink oral contrast.  The diagnosis made at the Lakeshore hospital was the very same except for the addition of duodenal perforation.  This was possible because the patient drank oral contrast when CECT scan was performed in Lakeshore Hospital.  Perforation in the stomach and duodenum was not visualized during the third ERCP also. ERCP or any other endoscopic procedure involves insufflation of air to facilitate visibility.  All ERCPs performed on the complainant were under conscious sedation and not under General Anesthesia.  Repeat ERCPs in a patient with perforation performed under conscious sedation would have resulted in leak of large quantity of air through perforation causing significant distress during the procedure and abandonment of the procedure.  This had not happened in the case of the complainant.  He improved after the repeat procedures.  The surgical gastroenterologist who performed the surgery also did not notice any perforation.  Therefore, it could be a case of spontaneous duodenal perforation complicating acute necrotizing pancreatitis.  Perforation caused by acute necrotizing pancreatitis is a well documented medical phenomenon. 

26.  According to the 2^nd opposite party, the complainant was under observation at all times during his treatment.  Appropriate investigations were all done at the required point of time.  A perforation in the region of the pylorus or the first part of the duodenum would usually be seen during ERCP.  The complainant had three ERCPs during his stay in the 1^st opposite party hospital, the last one on 11.06.2011.  No perforation was seen during any of these procedures.  The patient also had USG of abdomen on 11.06.2011 before the last ERCP and this had revealed ascites but no focal fluid collection to suggest any perforation.  This implies that it is more likely that the perforation had occurred spontaneously after the last ERCP done on 11.06.2011.

27.  The 2^nd opposite party reiterated that there was no shortcoming or deficiency in service on the part of the 2^nd opposite party and he had acted as per the universally accepted standard medical protocol, bestowing all care and caution.  There was no negligence or deficiency in service on the part of the 2^nd opposite party at any point of time in the treatment of the patient and hence he was not liable to compensate the complainant.  The complainant is attempting to make unjust enrichment at the expense of the opposite parties without any truth or bonafides and they are unnecessarily being dragged into an unwarranted and frivolous litigation.  All the allegations contrary to the above have been denied.  The 2^nd opposite party prayed for dismissal of the complaint. 

28.  On the above pleadings both parties went to trial.  The evidence in the case consists of the oral evidence of PWs 1 to 4 and Exts. A1 to A23 documents on the side of the complainant.  On the side of the opposite parties, the 2^nd opposite party was examined as DW1 and Ext.B1 document was marked. After close of evidence, the matter has been argued in detail by the counsel on both sides.

29.  The following points arise for consideration:

1. Whether there was any negligence or deficiency in service in the treatment of the complainant by the opposite parties as alleged?
2. Reliefs and costs.

30.  Points (i)& (ii):- Though a contention that the complaint is not maintainable for the reason that the complainant is not a consumer as defined under the Act forms part of the pleadings, no effort was made at the time of final hearing to pursue the said contention, seriously.  Therefore, we shall proceed to consider the contentions of the parties, on the merits. The complainant was admittedly treated by the 2^nd opposite party at the 1^st opposite party hospital for his ailment, Recurrent Pyogenic Cholangitis.  He had been referred to the 2^nd opposite party from the Medical College Hospital, Kozhikode.  The 2^nd opposite party was initially treating him at the Kozhikode District Co-operative Hospital where he was a visiting consultant at that time.  The CT scan report dated 28.06.2006 of the Medical College Hospital suggested the possibility of Recurrent Pyogenic Cholangitis.  According to the 2^nd opposite party, on 09.06.2007 ERCP and stone removal was performed on him at the 1^st opposite party hospital.  A second ERCP/biliary stenting was done by the 2^nd opposite party on the complainant on 07.07.2008.  The procedure was done on both occasions, without admitting the patient as an inpatient at the hospital, as a day care procedure.

31.  Later on, the complainant was again treated in the 1^st opposite party hospital on 27.01.2011.  At that time, the 2^nd opposite party was working as a full time consultant at the hospital.  On examination it was found that the complainant was having symptoms of repeated biliary colics and cholangitis.  He was advised USG abdomen and other investigations by the 2^nd opposite party.  He was admitted for repeat ERCP on 03.02.2011.  On 04.02.2011 the 2^nd opposite party repeated the ERCP/Sphincterectomy/biliary clearance and stenting on him.  The procedure was uneventful and the complainant was discharged on the following day.  The complainant was advised to return for review after 3 months for stent removal and repeat biliary clearance if found necessary.  He was reviewed in the gastroenterology OP on 08.03.2011.

32.  The complainant was admitted for a third time on 24.05.2011 and he underwent ERCP/Sphincterectomy/bileduct clearance on 25.05.2011.  It is stated that, he was noted to have multiple CBD calculi. The previous Sphincterectomy was enlarged and the calculi was removed.  After the procedure the complainant had mild abdominal pain and vomiting without any fever which persisted the following day.  This was associated with significant increase in serum amylase level and a diagnosis of post ERCP pancreatitis was made.  He was managed conservatively and had initial improvement.  However, he developed fever on 27.05.2011and was noted to have increased liver enzymes and bilirubin.  He was treated with antibiotics but there was a spike of fever on 28.05.2011 and 29.05.2011.  Suspecting cholangitis due to CBD Calculi, ERCP was repeated on 30.05.2011 which revealed multiple large CBD calculi.  They were cleared and two biliary stents were inserted.  Thereafter, there were no complaints of any pain or fever for three days.  But there was pain and fever on 01.06.2011.  The vital signs were all found to be normal.  Though the antibiotic treatment was intensified, the fever had not come down.  On 10.06.2011 there was a recurrence of abdominal pain associated with increased WCC, increased liver enzymes, increased bilirubin and increased amylase.  He was diagnosed to have a recurrence of cholangitis.  On 10.06.2011 he had severe back pain and pain in the upper abdomen associated with fever.  The USG abdomen suggested pancreatic ascities, Cholelithiasis, and pneumobilia.  Therefore ERCP and biliary clearance and stent exchange was done on 11.06.2011 and antibiotics were upgraded.  There was significant improvement in the condition of the complainant thereafter.

33.  On 16.06.2011 there was a recurrence of fever associated with tachycardia and tachypnoea.  The CT scan revealed increased fluid collection and pancreatitis.  The patient was subjected to exploratory laparoctomy pancreatic necrosctomy, peritoneal lavage and feeding jejunostomy on 17.06.2011.  Post operatively the patient was put on ventilator support.  The patient was recovering slowly following the surgery.  The relatives were informed that the recovery would be a slow process.  However, on 21.06.2011, on the fourth post operative day the patient’s relatives requested for a discharge.  Accordingly he was discharged and taken to the Lakeshore hospital, Kochi. 

34.  At Lakeshore Hospital, it was detected that the complainant had duodenal perforation which was the cause for all his discomforts.  The allegation of the complainant is that, the omission of the parties in not detecting the duodenal perforation amounted to medical negligence and deficiency in service.  There are a few other allegations also to the effect that, the complainant had jaundice and other conditions associated with the same which have not been recorded correctly in the discharge summary.  The discharge summary has not been signed by the 2^nd opposite party which according to the complainant is for the reason that the 2^nd opposite party had discontinued treating him in view of the complications that had developed because of the deficiency in his treatment.  Had the perforation been detected by the 2^nd opposite party at the initial stage itself, all the subsequent complications, pain and sufferings that he had to undergo would have been avoided.  Needless financial expenditure associated with his long treatment also could have been avoided.  Therefore he claims compensation from the opposite parties.

35.  According to the opposite parties, the treatment given by them was in accordance with the standard medical protocol.  At all times the complainant was treated by them with due care and attention and therefore there is no deficiency in their treatment.  Though the CT scan was done suspecting duodenal perforation the same could not be detected by them since the complainant was not able to consume the oral contrast because of nausea and vomiting.  At Lakeshore Hospital, Kocchi, he drank the oral contrast that led to detection of the perforation.  The treatment done at the Lakeshore hospital was only a continuation of the treatment provided at the 1^st opposite party hospital.  The relatives had been informed that recovery of the complainant would be slow and that it would take time.  However, they had forcibly obtained discharge.  It is the case of the opposite parties that, there was no duodenal perforation at the time when ERCP/bile stenting and other surgical procedures were performed on the complainant since such perforation would develop spontaneously at any time.  It is contended that no fault could be attributed to the treatment provided by the opposite parties.

36.  In the nature of the contentions summarized above, the first point that requires to be addressed is whether the complainant has succeeded in establishing that his duodenal perforation was the result of deficiency in the treatment of the opposite parties.  The complainant has produced Exts. A1 to A23 documents which constitutes the treatment records of the complainant at the 1^st opposite party hospital.  It cannot be disputed that the complainant had to undergo repeated surgical procedures and other methods of treatment to obtain a cure of the ailments from which he was suffering.  Obviously, he also had to undergo a lot of financial expenditure for his treatment.  The complainant has no complaints about his treatment up to 25.05.2011.  But after the ERCP on 25.05.2011 he developed fever and therefore another ERCP was performed on 30.05.2011.  Exts. A8 and A9 are the reports of the said procedures.  Since the fever persisted even thereafter, the procedures were repeated on 11.06.2011.  It is contended by the counsel for the complainant that repeated ERCPs conducted as above caused damage to the pancreas and also created a perforation in his duodenum.  On 17.06.2011 though a scan was conducted on the complainant, no duodenal perforation was detected.  PW3, the doctor who conducted the scan has deposed that, he found the patient to be suffering from pancreatitis biliary disease and fluid collection in the abdomen.  There was sub capsular fluid collection around the liver suspicious of biloma.  When he was asked whether such fluid collection was due to duodenal perforation, his answer was that, image wise he could not commit either way, for the reason that the patient was having pancreatitis which could also produce similar fluid collection. He has added that he could not rule out that possibility (duodenal perforation) also.  

37.  PW4, the doctor who treated the complainant at Lakeshore Hospital was questioned extensively on the aspect as to whether the duodenal perforation was caused by the repeated ERCPs that were conducted.  He has stated that there was no indication in the discharge summary of either PVS Hospital (1^st opposite party) or the Lakeshore Hospital to show that a perforation existed earlier.  He has also deposed that the treatment of Recurrent Pyogenic Cholangitis is usually a long drawn, protracted process and involves medication, endoscopy treatment and surgery and that each of those treatments may require to be repeated.  He has further gone on to state he was not in a position to dispute the diagnosis and treatment provided by the 1^st opposite party.  In short, there is nothing on record to show that, there was any shortcoming or deficiency in the treatment provided by the 1^st opposite party hospital, as alleged.  The oral evidence of PWs 1 & 2 are not helpful in finding out whether there was any negligence in the treatment that was provided by the opposite parties.

38.  It is no doubt true that the complainant had to undergo the ordeal of a number of surgical procedures, prolonged periods of treatment at the 1^st opposite party hospital and later on at the Lakeshore hospital.  It is also likely that he would have had to incur a lot of expenditure for his treatment.  However, compensation for such consequences can be claimed from the opposite parties only if it is established that there was some fault on their part in treating the complainant.  As already found above, the evidence on the above aspect is grossly insufficient. 

39.  In the above context, it is necessary to take note of the caution expressed by the Supreme Court in finding medical negligence and awarding compensation in the absence of cogent evidence to support the same.  In Bombay Hospital &Medical Research Centre Vs. Asha Jaiswal &ors. 2021(4) CPR 419 (SC) while considering the appeal filed against an order passed by the National Consumer Disputes Redressal Commission, the Apex Court has held as follows:

29. In Martin F. D’Souza V. Mohd. Ishfaq (2009) 3SCC 1, this court observed that the doctor cannot be held liable for medical negligence by applying the doctrine of resipsaloquitur for the reason that a patient has not favourably responded to a treatment given by a doctor or a surgery has failed.  There is a tendency to blame the doctor when a patient dies or suffers some mishap.  This is an intolerant conduct of the family members to not accept the death in such cases.  The increased cases of manhandling of medical professionals who worked day and night without their comfort has been very well seen in this pandemic.  This Court held as under:-

“40. Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightaway liable for medical negligence by applying the doctrine of resipsa loquitur.  No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake.  A single failure may cost him dear in his lapse.

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42. When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this.  Things have gone wrong and, therefore, somebody must be punished for it.  However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures.  A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions.”

30. In case of medical negligence, this Court in a celebrated judgment reported as Jacob Mathew Vs. State of Punjab and Anr. (2005) 6 SCC 1 held that simple lack of care, an error of judgment or an accident, is not a proof of negligence on the part of a medical professional.  The Court held as under:

“48. We sum up our conclusions as under:

1. Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.  The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to herein above, holds good.  Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued.  The essential components of negligence are three: “duty”, “breach” and “resulting damage”. 
2. Negligence in the context of the medical profession necessarily calls for a treatment with a difference.  To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply.  A case of occupational negligence is different from one of professional negligence.  A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional.  So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.  When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence.  So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial.  Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.
87794640128747600.  

(4)The test for determining medical negligence as laid down in Bolam case [(1957) 1 WLR 582: (1957)2 All ER 118 (QBD)], WLR at p. 586 [ [Ed.:Also at All ER P.121 D-F and set out in para 19, p. 19 herein.]] holds good in its applicability in India.

8. Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law, specially in cases of torts and helps in determining the onus of proof in actions relating to negligence.  It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law.  Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence.”

31. In another judgment reported as Arun Kumar Manglik V. Chirayu Health and Medicare Private Limited and Anr., (2019) 7 SCC 401, this Court held that the standard of care as enunciated in Bloam case must evolve in consonance with its subsequent interpretation by English and Indian Courts.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.The Court held as under:

“45. In the practice of medicine, there could be varying approaches to treatment.There can be a 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.”

40.  In Harish Kumar Khurana (Dr.) v. Joginder Singh &Ors, it has been held that in every case where treatment is not successful or the patient dies during surgery it cannot be automatically assumed that the medical professional was negligent.  To indicate negligence, there should be material available on record or else appropriate medical evidence should be tendered.

41.  The National Commission has in Dr. Saud Abbasi v. Gargi Hospital and Ors. 2020 (2) CPR 533 (NC) laid down the three-stage test to be satisfied for determining medical negligence, in the following words:

27. To determine negligence, a three-stage test must be satisfied. (i) A person is owed a duty of care. (ii) A breach if that duty of care is established. (iii) As a direct result of that breach, legally recognized harm has been caused.  The procedure therefore relies on establishing fault on the part of the doctor, hospital, etc.  The person making the claim (the complainant) must establish on the balance of probabilities that negligence has occurred by the hospital or doctor (the OP/defendant).

42.  The counsel for the complainant has strenuously tried to substantiate his contention that the opposite parties were negligent in treating the complainant by placing reliance upon a number of decisions.  In the first place it is pointed out that the 2^nd opposite party had been trying to cover up his negligence in treating the patient by making corrections, additions and suppressions in the treatment records.  Though the patient was treated by the 2^nd opposite party, it is pointed out that the discharge summary was issued by Dr. Jayakish Jayaraj on 21.06.2011.  The allegation is denied by the 2^nd opposite party.  His contention is that he had been on leave from 18.06.2011 to 22.06.2011 to attend the ceremonies in connection with the death anniversary of his father-in-law.  However, the counsel points out that he was available at the hospital on 18.06.2011 as evidenced from Ext. B1.  However, we are not satisfied that anything turns on the above aspect, because his presence or absence on the date of discharge of the patient is not material in deciding whether he was negligent in treating the complainant.  Admittedly, the complainant was got forcibly discharged from the hospital by his relatives.  There is no likelihood of the said eventuality being foreseen by the 2^nd opposite party.  According to him it was for the reason that he was not present on the date of discharge of the patient that he had prepared a second discharge summary. The said aspect cannot advance the case of the complainant in any manner.

43.  Another circumstance relied upon by the counsel for the complainant is that despite insistence by the relatives and the severe abdominal pain complained of by the patient, accompanied by swelling of the entire body, a CT scan was not taken by the opposite parties.  Finally, the relatives and friends of the complainant had to take him forcibly to a scanning centre outside the hospital and a CT scan was performed on 17.06.2011.  The explanation of the 1^st opposite party when examined as PW1 was that the scanning machine in the hospital was out of order on that day.   Nothing has been brought out in cross examination to discredit the said explanation. 

44.  It is contended by the counsel for the complainant that the CT scan done on 17.06.2011 was indicative of duodenal perforation.  It is alleged that it was after seeing the scan report that the 2^nd opposite party had abstained from treating the complainant, realizing his fault in not having correctly diagnosed the condition of the patient.  His reluctance to prepare the discharge summary on 21.06.2011 is also stated to be for the above reason.  According to the learned counsel, the CT scan done at Lakeshore Hospital, Kochi correctly found that there was duodenal perforation which was properly treated, thereafter.  It is therefore contended that, professional negligence on the part of the opposite parties has been established.  We notice that, at the time of the CT scan conducted on 17.06.2011the patient could not be administered oral contrast because of his nausea and other discomforts.  However, the CT scan conducted at the Lakeshore Hospital was after giving him oral contrast.  According to the counsel for the opposite parties, it is not possible to detect perforation in the absence of oral contrast.  When the radiologist who conducted the CT scan on 17.06.2011was questioned, he has deposed as PW3 that his conclusion after the scan was that the patient was suffering from acute pancreatitis.  He was pointedly asked whether perforation could also have been a cause for the condition of the patient, he said that it also could have been. Therefore, even the radiologist who conducted the CT scan was not in a position to form a definite opinion as to whether collection of fluid in the abdomen of the patient was due to duodenal perforation or pancreatitis.  The above aspect became clear only when the patient was subjected to a CT scan after giving him oral contrast. 

45.  The case of the 2^nd opposite party is that, there was no perforation when the patient was subjected to ERCP by him. According to him, had the perforation been present at that time, it would not have been possible for him to conduct the ERCP because of the presence of the air that would come out through the perforation.  Therefore, the perforation would have developed at a later point of time, spontaneous occurrence being a definite possibility.  In the above state of the evidence in this case, it is not possible to arrive at a definite conclusion as to whether perforation was in existence at the time when the patient was under the treatment of the opposite party or not.   Though PW3 and PW4 who were examined as experts were questioned on the above aspects, they have not given any definite opinion. 

46.  In Girishchandra v. Bhatt and Ors. V. Sterling Hospital 2018(2) CPR 296 (NC) the National Commission has held as follows:

14. The expert witness plays an essential role in determining medical negligence and the courts by and large rely on expert witness testimony to establish the standards of care germane to a medical negligence case.  Generally, the purpose of expert witness is to describe standards of care relevant to a given case, identify any breaches in those standards, and if so noted, render an opinion as to whether those breaches are the most likely cause of injury.  The expert witness is allowed to compare the applicable standards of care with the facts of the case and interpret whether the evidence indicates a deviation from the standards of care.  The medical expert also provides an opinion (within a reasonable degree or medical certainty) as to whether that breach in care is the most likely cause of the patient’s injury.  The expert opinion will not carry any value, if it is without the expert’s explanation of the range of acceptable treatment modalities within the standard of care and interpretation of medical facts. 

47.  In the present case, the evidence tendered by PW3 and PW4 do not satisfy the requirements indicated in the passage referred to above.  Consequently, the expert evidence in this case is unhelpful in determining whether there was negligence on the part of the opposite parties in treating the complainant.  As rightly contended by the counsel for the opposite parties, the treatment that was given to the patient at the Lakeshore Hospital does not appear to be different from what was provided by the opposite parties.  The said treatment has cured the patient and it is submitted that he has recovered completely now.  Therefore, it is also not possible to hold that the complainant had suffered any injury or adverse consequence as a result of the treatment given by the opposite parties.

For the above reasons, we find no grounds to grant any of the reliefs prayed for in this complaint.  This complaint is therefore dismissed.  No costs.

JUSTICE K. SURENDRA MOHAN  : PRESIDENT

                                                                      RANJIT. R                : MEMBER

jb

APPENDIX

JUSTICE K. SURENDRA MOHAN  : PRESIDENT    

                                    RANJIT. R                : MEMBER

jb