IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA. Dated this the 25th day of May, 2010. Present:- Sri. Jacob Stephen (President) Smt. C. Lathika Bhai (Member) Sri. N. Premkumar (Member) O.P.No. 150/04 (Filed on 07.07.04)Between: Sarojini. G., aged 63, Saroj Bhavan, Anappara, Kumbazha Muri, Pathanamthitta Village.P.O., Kozhencherry Taluk, Pathanamthitta Dist. (By Adv. P.K. Sasidharan) ..... Complainant. And: 1. State of Kerala, rep. by the Secretary, Dept. of Health Services, Trivandrum. 2. Dr. K.T. Sebastian, H.S., M.N.A.M.S, Diplomate of National Board, Consultant Surgeon & Civil Surgeon, General Hospital, Pathanamthitta. (By Adv. P.K. Mathew) ..... Opposite parties. O R D E R Smt. C. Lathika Bhai (Member): The complainant has filed this complaint against the opposite parties for getting a relief from the Forum. 2. The facts of the complaint is as follows:- Due to the abdominal pain on 5.12.03 the complainant approached Dr. Sreedevi, Gynaecologist, General Hospital, Pathanamthitta. After examination doctor directed the complainant for taking Ultra Sound scanning of Abdoman & Pelvis. On the same day itself ultra sound scanning report shown to the doctor. After studying the report doctor informed the complainant that abdoman pain was due to the Gall Bladder stone (Cholelithiasis) and an operation was required for the removal of stone and she suggested the advice of second opposite party. On the same day the complainant consulted the 2nd opposite party with scanning report. He prescribed some medicines and it continued till 7.1.04. On 2.1.04 the complainant met the 2nd opposite party, then he referred to C.T. scan of Abdoman & Pelvis. On 3.1.04 CT scan was taken and report was produced before him. AFter studying the scanning report 2nd opposite party told the complainant that an operation is required for removal of gall blader since it contains full of stone/calculi and for that she had to be admitted in the General Hospital, Pathanamthitta. On 8,1,04 the complainant was admitted in General Hospital, Pathanamthitta and on 15.1.04 the 2nd opposite party conducted the operation and removed her gall blader. As operation charges, the 1st opposite party was levied a sum of Rs.241 from the complainant. The complainant was discharged on 21.1.04 with the advice of rest, medicine and review on 28.1.04. 3. On 23.1.04 the complainant felt pain and distension of abdoman then 2nd opposite party directed to take scanning report of abdoman, with scanning report complainant approached the 2nd opposite party. Aftet studying report he directed the complainant to MGM Muthoot Medical Centre, Kozhencherry stating that there was some further complications in her abdomen so better treatment is necessary since the General Hospital, Pathanamthitta was not equipped for such treatment. The 2nd opposite party himself arranged the admission and treatment of the complainant at MGM Muthoot Medical Centre. On 23.1.04, the complainant admitted there. The doctor who examined the complainant after seeing the scan report informed the complainant that the report revealed obstructive Jaundice due to a 4 mm stone/calculus in the middle 1/3 of her common bile duct and she was placed under observation and treatment till 24.1.04. On 24.1.04 the doctors at MGM Muthoot Medical Centre directed the complainant to some more medical tests at VSM Hospital, Mavelikkara and for that she was discharged and sent to VSM Hospital accompanied by a doctor from MGM Muthoot Medical Centre. The complainant underwent various tests there including ultrasonography and readmitted in MGM Muthoot Medical Centre and continued treatment till 27.1.04. On 27.1.04 the doctors at MGM Muthoot Medical Centre referred the complainant to Lakeshore Hospital & Research Centre, Kochi for better management. 4. On 27.1.04 the complainant was admitted in Lakeshore Hospital and taken ultra sound scan of the abdomen and MRI with MRCP was done on 28.1.04. The reports revealed the accumulation of serous fluid in the peritoneal cavity, mild dilation of intra hepatic billiary radicles with a narrowing at level of common hepatic duct, mild ascites around liver and bilateral mild pleural effusion. On 28.1.04 drain was inserted under ultra sound scan guidance and collection drained, as the complainant recovered well and she was discharged on 2.2.04. On 12.2.04 again the complainant felt pain and distention and she got admitted in Lakeshore Hospital. Ultra sound scan showed the collection and drained under ultra sound guidance. After drainage of collection she was discharged on 14.2.04 with the advice of regular follow up and for keeping the record of daily drain output. Again on 2.3.04 she was admitted in Lakeshore Hospital with fever and abdominal pain suggestive of blockage of drain. Drain was replaced by new one. In view of the recurrent attacks of biliary sepsis and drainage of biloma being not adequately controlled she was taken up for surgery on 6.3.04. Laparotomy revealed biliopurulent fluid in the peritoneal cavity with multiple flakes throughout the abdomen and common hepatic duct showed complete cut off. Hilar and perihilar tissues were unhealthy and friable. T-tube was inserted across the hilum and was brought out. She recovered well post operatively. The right subhepatic drain was retained in the colon bag as it continued to drain few ml. of bilious fluid. The complainant was discharged on 17.3.04 and at that time she was tolerating normal diet and her liver function tests were in normal limits. The complainant still underwent the treatment of Lakeshore Hospital and at intervals she is availing of medical care from MGM Muthoot Medical Centre as per the direction of the doctor at Lakeshore Hospital. The entire complications of the complainant have arisen due to the cholecystectomy done by 2nd opposite party negligently from which common hepatic duct was completely cut off. The cholecystectomy was done by the 2nd opposite party at General Hospital, Pathanamthitta owned and managed by 1st opposite party. There is a clear deficiency in service from the part of opposite parties as such the opposite parties are jointly and severally liable to compensate the complainant. The complainant had to spend more than 1,24,500/- for her treatment and have sustained further expenses. For her pain and sufferings along with treatment and other expenses the complainant has claimed an amount of Rs.5 lakhs as compensations from the opposite parties. Hence she filed this complaint for getting an order for directing the opposite parties to pay the compensation along with cost and interest to the complainant. The complainant prays for granting the reliefs. 5. The 1st opposite party has not filed version hence he remained exparte. While the 2nd opposite party filed a version stating the following contentions: The main contention of this opposite party is that the complainant is not a consumer as under Sec.2(d) of the Consumer Protection Act hence the complaint is not maintainable before the Forum. The service rendered by the 2nd opposite party was free and the amount collected from her was the fee prescribed for laboratory and clinical tests and she had no complaint relating to any deficiency in laboratory investigation and clinical tests. On the basis of the investigation report she was advised to undergo cholecystectomy. Complainant voluntarily agreed for the surgery and she was taken to surgery on 15.1.04. During the course of open cholecystectomy the following findings were noted. (1) There were adhesions in the vicinity of the gall bladder; common bile duct was not dilated. It was palpated for stones, none was found. (2) Gall bladder was found packed with multiple small stones. Liver and other viscera were normal. Under all aseptic care and caution, the adhesions were carefully removed. Classical cholecystectomy was successfully done. After achieving perfect haemostasis abdomen they closed after putting an abdominal drain to the gall bladder bed. Intra and post operative periods were uneventful and post operative recovery was normal with steady BP, pulse and vital signs. One Unit O-ve blood was given in the immediate post operative period. Post operative period was managed with I.V fluid antibiotics and analgesics. Drain was removed on 17.01.04 as there was no drainage. There was no billions drainage at any time. There was no abdominal distension or discomfort through out the post operative period. Normal bowel movements occurred on 19.1.04 when oral fluid was allowed. On subsequent days semisolid and normal diet was allowed. Complainant was discharged on 21.1.04 in good general condition with normal soft abdomen. 6. On 23.1.04 the complainant was reviewed on 23.1.04 with complaints of high coloured urine and abdominal pain. After a detailed and thorough examination he directed for an ultrasound scan of abdomen. It revealed a 4 mm stone in the middle one third of common bile duct since endoscopic retrieval of the stone was indicated for which 1st opposite party hospital was not equipped the complainant was referred to MGM Muthoot Medical Centre where the nearest Gastroenterologist was available. There was no negligence or carelessness on the part of the 2nd opposite party at any point of time in the course of treatment given to the complainant. 7. The complainant was based on false allegation on the mistaken interpretation of the mention in the discharge summary of Lakeshore Hospital a “complete cut off” of the common Hepatic duct. The terminology “complete cut off” does not mean that the common hepatic duct had been physically cut. It only means that there is a block in the common hepatic duct to bile flow. If the common hepatic duct had been cut by the 2nd opposite party at operation on 15.1.04 no obstruction jaundice would have occurred in the case of the complainant. Obstructive jaundice can occur only if there is obstruction to bile flow. When common hepatic duct cut bile leak into peritoneal cavity causing severe fatal peritonitis not obstructive jaundice. Further there is no negligence or deficiency in service from the part of the 2nd opposite party for that the complainant is not entitled to get any relief as prayed for in the complaint. The cholecystectomy was done in proper way and there was no defect in the surgery done. 2nd opposite party is highly qualified surgeon having post graduate qualification of MS and HNAMS in surgery. 2nd opposite party was an employee of 1st opposite party and therefore principles of vicarious liability would apply in case of any negligence is found and therefore the 1st opposite party is liable to pay the compensation. Hence the 2nd opposite party prayed for the dismissal of the complaint with his cost. 8. The points for consideration in this complaint are:- (1) Whether the complaint is maintainable before the Forum? (2) Whether the complainant is entitled to get a relief as prayed for in the complaint? (3) Reliefs and Costs? 9. The evidence in this case consists from the side of the complainant is that the oral evidence of the complainant as PW1 based on the proof affidavit filed by her and the oral evidence of the witness, as PW2 and PW3. The doctor who treated the complainant at MGM Muthoot Medical Centre, Kozhencherry was examined as PW2 and the doctor who treated in Lakeshore Hospital was examined as PW3 and Ext.A1 series to A11 series marked for the complainant. For the opposite parties, 2nd opposite party was examined as DW1 and Ext.B1 series marked. One witness expert Dr. A.P. Kuruvilla for the 2nd opposite party was examined as DW2. After closure of the evidence, both sides heard. There is no oral or documentary evidence from them, since the 1st opposite party was exparte. 10. The complainant’s case is that the complainant was admitted in 1st opposite party hospital for removal of gall bladder stone (cholelithiasis). On 15.1.04 the 2nd opposite party conducted the operation of abdomen and removed the gall bladder and the complainant was discharged from the hospital on 21.1.04. On 23.1.04 the complainant felt pain and distention of abdomen and she came to the 2nd opposite party. Then 2nd opposite party directed a scan report of abdomen and after studying the report; the complainant was referred to MGM Muthoot Medical Centre for better treatment. On 23.1.04 she was admitted there. After examination of the complainant the doctor at MGM Muthoot Medical Centre hospital informed the complainant that the scan report dated 23.1.04 revealed obstructive jaundice due to 4 mm stone/calculus in the middle 1/3rd of her common bile duct. On 24.1.04 the complainant underwent various tests at VSM Hospital and re-admitted in MGM Muthoot Medical Centre hospital and kept under observation and treatment till 27.1.04. On 27.1.04 she was referred to Lakeshore hospital, Kochi for better management. On 27.1.04 the complainant was admitted in Lakeshore hospital and MRI and MRCP abdomen was done and which revealed the accumulation of serous fluid in the peritoneal cavity, mild dilation of intra hepatic biliary radicles with a narrowing at the level of common hepatic duct, mild ascetics around liver and bilateral mild pleural effusion. On 28.1.04 drain was inserted and collection was drained, as the complainant recovered well and she discharged on 2.2.04. Again on 12.2.04 the complainant was admitted in Lakeshore hospital due to the pain and distension of abdomen. Ultrasound scan showed the collection in abdomen and that was drained and the complainant become well and discharged on 14.2.04. Again on 2.3.04 she was admitted in Lakeshore hospital with fever and abdominal pain suggestive of blockage of drain. Drain was replaced by a new one. On 6.3.04 laprotomy was done to the complainant. After that she recovered well and on 17.3.04 she was discharged and still underwenting the treatment of Lakeshore hospital. 11. The complainant had suffered untold pain, agony and anxiety in consequences of the cholecystectomy done by the 2nd opposite party on 15.1.04 at General Hospital, Pathanamthitta owned and managed by the 1st opposite party. The entire complications have arisen due to the cholecystactomy done by the 2nd opposite party too negligently by which common hepatic duct of the complainant was completely cut off. For the treatment she had spend an amount of Rs.1,24,500/- as treatment expenses. This act of the opposite parties is a clear deficiency in service and as such the opposite parties are liable to compensate the complainant adequately hence she filed this complaint for getting the reliefs as sought for in the complaint. 12. In order to prove the complainant’s case the complainant has adduced oral evidence as PW1 and Ext.A1 series to A11 series were marked. Ext.A1 is the bills for medicines and lab tests (30 in number) of the complainant during the period 2.1.04 to 28.1.04. Ext.A2 series are bills for the period from 29.1.04 to 14.2.04 (32 in number). Ext.A3 series are the medical bills and other test bills (28 in number) from 14.2.04 to 1.3.04. Such bills for the period from 2.3.04 to 14.3.04 are Ext.A4 series and such bills for the period 14.3.04 to 17.4.04 are Ext.A5 series and bills for the period 1.5.04 to 11.8.04 are Ext.A6 series and bills for the period 11.8.04 to 16.11.04 are Ext.A7 series and the bills for the period 16.11.04 to 18.5.04 are Ext.A8 series. Ext.A9 series are the bills for traveling expenses for the treatment of the complainant. Ext.A10 series the bills produced for lodging/accommodation expenses in connection with the treatment of the complainant. Ext.A11 series are the medical bill reports, lab reports, prescriptions (10 in number) etc. of the complainant. The opposite parties counsel has been cross-examined PW1. 13. Two witness for the complainant the doctors who treated the complainant at MGM Muthoot Medical Centre and the doctor who treated at Lakeshore hospital were examined as PW2 and PW3. Both witnesses were cross-examined by opposite party’s counsel. 14. 1st opposite party remained exparte while the 2nd opposite party contended the case as follows: The complainant is not a consumer as per Sec.2(d)(ii) of the C.P.Act. The service rendered by the 2nd opposite party is absolutely free without levying any charges. On the basis of the investigation report the complainant was advised to undergo cholechystectomy. The complainant voluntarily agreed for the surgery and the surgery was done on 15.1.04 at 1st opposite party hospital and she was discharged on 21.1.04 in good general condition. On 23.1.04 the complainant came to the 2nd opposite party with complaints of high coloured urine and abdominal pain. The 2nd opposite party made a detailed and thorough examination and directed for ultrasound scanning. It revealed a 4 mm stone in the middle third common bile duct. Since endoscopic retrieval of the stone was indicated for which 1st opposite party was not equipped, the complainant was referred to MGM Muthoot Medical Centre. There is no negligence or carelessness from the part of 2nd opposite party for the treatment given to the complainant. Further contention is that the mention in discharge summary from Lakeshore hospital about complete cut off of common hepatic duct does not mean that the common hepatic duct had been physically cut, but only means that there is a block in the common hepatic duct. The complainant admitted that she had obstructive jaundice. Obstructive jaundice can occur only if there is obstruction to bile flow. When common hepatic duct is cut which ensures is bile leak into peritoneal cavity causing severe fatal peritonitis not obstructive jaundice. There is no deficiency in his service and hence he is not liable to pay any compensation to the complainant. 15. In order to prove the contentions of 2nd opposite party, 2nd opposite party adduced oral evidence as DW1 and Ext.B1 series marked. Ext.B1 series is the treatment records from the 1st opposite party hospital for the treatment given by the 2nd opposite party to the complainant. Complainant’s counsel has been cross-examined DW1. One witness for the 2nd opposite party as an expert in Gastroenterology from Medical College Hospital, Thiruvananthapuram was also adduced oral evidence as DW2. DW2 was cross-examined by complainant’s counsel. 16. The 1st point to be decided is whether the complainant is a consumer of opposite parties as defined in section 2(d) of the C.P.Act. On a perusal of Ext.A1 series, Ext.A1(13) receipt shows that the complainant had paid an amount of Rs.124/- as laboratory investigation charges and operation cost to the 1st opposite party. It reveals that the complainant availed service from the 1st opposite party after payment. Hence the complainant is a consumer of opposite parties as defined in Sec.2(d) of the C.P.Act. Therefore the dispute between the complainant and opposite parties is a consumer dispute and the complaint is maintainable before the Forum. 17. The complainant’s allegation is that during the cholecystectomy done by the 2nd opposite party, there was a cut injury on the common hepatic duct of the complainant and due to that bile escaped in to the abdominal cavity, which resulted the severe complications to the complainant. The entire complication sustained to the complainant is due to the negligent treatment done by the second opposite party. 18. According to the 2nd opposite party the word cut off used in Ext.A11 (24) is not referring any physical injury or wound that allegedly caused during the cholecystectomy. The word cut off has been used to indicate a block of dye. If the common hepatic duct had been physically cut there would be any obstruction to bile flow, bile could be easily escaped through the cut duct and flow in to the peritoneal cavity immediately following the surgery and occur severe peritonitis. In the complaint itself the complainant stated that she had obstructive jaundice on 23.1.04. The cut injury of common hepatic duct and obstructive jaundice cannot co-exist and therefore inconsistent. On going through the evidences in this case the materials on records show that on 15.1.04 the 2nd opposite party had been conducted the cholecystectomy to the complainant at 1st opposite party hospital and discharged on 21.1.04. After the discharge on 23.1.04 due to the pain and distention of the abdomen she complained the 2nd opposite party after that she underwent ultrasound scanning. After studying the scan report 2nd opposite party directed the complainant to MGM Muthoot Medical Hospital stating that there was some further complications which could be examined and treated there since the General Hospital, Pathanamthitta was not equipped for such treatment. PW2 the doctor who treated the complainant at MGM Muthoot Medical Hospital stated that on the basis of the scan report dated 23.1.04 i..e. Ext.AXI(8) he diagnosed post cholecystectomy with obstructive jaundice. Ext.AXI(8) revealed obstructive jaundice due to a 4 mm stone/calculus in the middle 1/3rd of her common hepatic bile duct. But in the tests and observations in VSM Hospital. Ext.AXI(12) and (13) ERCP and ultrasound scanning reports dated 24.1.04 there is no mention of any obstructive jaundice or presence of any calculus in the common hepatic duct. At the time of deposition PW2 brought out that he could not detect any stone in the common bile duct and that he had not done anything to remove such a stone. On a perusal of Ext.AXI(11) discharge summary of MGM Muthoot Medical Centre shows that the diagnosis was recorded as post cholecystectomy with obstructive jaundice. But as per Ext.A11(24), the complainant is a known case of post operative biliary peritonitis. From the evidence we can see that PW2 had not done any test or scanning to detect the complications of the complainant. 19. According to PW3 who is an expert and the doctor who treated the complainant at Lakeshore Hospital the bile can enter in to the abdominal cavity if there is an interference with bile duct. As per Ext.AXI(24) discharge summary issued by PW3 the complainant is a known case of post operative biliary peritonitis. PW3 has been explained the word peritonitis as inflammation of the peritoneum. Referring to discharge summary of Lakeshore Hospital Ext.AXI(24) PW3 deposed that during 2.3.04 to 16.3.04 drain was replaced drainage of biloma being not adequately controlled the complainant was taken to surgery (Biloma means collection of bilious fluid). Further “Laprotomy revealed biliopurulent fluid in the peritoneal cavity with multiple flakes throughout the abdomen. Common Hepatic Duct showed complete cut off. Anatomy was confirmed by the intra operative cholangiogram”. PW3 further stated that during his evaluation no stones were seen in the biliary tract. The leakage of bile from biliary tract is possible only bile duct injury, if such injury occurs bile may leak into the abdominal cavity and cause jaundice. By answering the question put by the complainant’s counsel that whether he had noted or found any injury or leakage from any portion of the bile duct system of the complainant? He answered that “there is no direct mention of the point of leakage from the biliary tract”. On 27.1.04 Biliary Peritonitis was detected to the complainant and the meaning of peritonitis is inflammation of peritoneum and that it may occur due to operative incisions and failure to practice aseptic techniques. By referring to Ext.AXI(27) discharge summary dated 13.9.04 PW3 deposed that the diagnosis noted that “Benign Biliary Structure”, which means narrowing of any portion of the Biliary system and Biliary structure occurs because of decreased blood supply and that it can happen due to injury or inflammation. At the time of cross-examination PW3 stated that the word “cut off” used in Ext.AXI(24) does not mean that there is an injury it is a block of dye further he stated that, “ RecordsImv PW1â Hepatic ductâ Hcp `mK¯pw Physical injury Dmbncp¶Xmbn ImWp¶nÃ. Ext.AXI (19-13) the test reports, discharge summaries etc. shows that the complainant was continuously admitted in Lakeshore hospital for treating her complications. 20. At the time of deposition 2nd opposite party, DW1 stated that bile fluid will enter into the abdominal cavity only if there is a leakage in the bile duct system. DW2 an expert witness of 2nd opposite party has also made the same opinion that the bile will escape in the abdominal cavity only if there is some injury in the bile duct. He has further stated that if bile is accumulated in the abdominal cavity Biliary Peritonitis will occur and in that case infection will also developed. As per Ext.AXI(24) the complainant is a post operative peritonitis. 21. As per Ext.A11(12) lab report of VSM Hospital dated 24.01.2004 – specimen: A scitic fluid collected from the complainant contained bilurubin and Ext.A11(13) lab report dated 29.01.2004 contains a scities and pleural effusion. As per Ext.A11(19) ultra sound scan report of the complainant at Lakeshore Hospital, there was a fluid in the abdominal cavity. According to PW3, as an expert, the bile can enter into the abdominal cavity if there is interference with bile duct. As per Ext.A11(24), the complainant is a known case of post operative peritonitis. It will occur due to the accumulation of bile in the abdominal cavity. In Ext.A11(24) PW2 noted that “laproctomy revealed biliopurulent fluid in the peritoneal cavity with multiple flakes throughout the abdomen. Common hepatic duct showed complete ‘cut off’. Anatomy was confirmed by the intraoperative cholangiogram”. The main point to be decided in the case is that whether the word cut off used in Ext.A11(24) discharge summary issued by PW3 is means that there is a physical injury/cut in the common hepatic duct of the complainant. The two expert witnesses from both sides categorically interpreted the word ‘cut off’ means only a block in the hepatic duct of bile fluid. The terminology complete cut off does not mean that the common hepatic duct had been physically cut. At the time of deposition, PW3, DW1 and DW2 stated as follows: PW3 – The bile can enter into the abdominal cavity if there is an inference with bile duct. DW1 – Bile fluid will enter into the abdominal cavity only if there is a leakage in the bile duct system. DW2 – Bile will escape in the abdominal cavity only if there is some injury in the bile duct. The second opposite party’s contention is that, if the common hepatic duct is cut the bile leak into peritoneal cavity and caused severe fatal peritonitis. In Ext.A11(24) PW3 stated that the complainant is a known case of post operative biliary peritonitis. At the time of deposition, PW2 stated that, on the basis of the scan report of Ext.A11(8) he diagnosed the case as a post cholecystectomy with obstructive jaundice. But from Ext.A11(12) and 13 ultra sound scan report and ERCP from VSM hospital and other test reports from Lakeshore Hospital did not mention any obstructive jaundice to the complainant. If there is a block in hepatic duct she should have obstructive jaundice. From the test reports, no stones were seen in the biliary tract. It shows that the Ext.A11(8) report was wrong and diagnosis made by PW2 on the basis of Ext.A11(8) is not correct. 22. From the available evidence, the materials on record and the testimony of PW3 the doctor who treated the complainant at Lakeshore Hospital shows that there is a leakage of bile from biliary tract. But the exact point of leakage was not mentioned in any records. PW3 deposed that bile duct injury can occur during surgical removal of gall bladder, if such injury occurs bile may leak into abdominal cavity. Ext.A11(24) medical reports of Lakeshore Hospital reveals that the complainant is a known case of post operative biliary peritonitis. The meaning of the word ‘cut off’ used in Ext.A11(24), the two experts from both sides expressed their interpretation that it does not mean that common hepatic duct had been physically cut. It means only that there is a block in common hepatic duct. At the time of deposition, PW3 deposed that during our evaluation, no stones were seen in the biliary tract. But the exact cause of the complications suffered by the complainant is due to the accumulation of bile into the abdominal cavity of the complainant after the cholecystectomy done by the second opposite party. At Lakeshore Hospital biloma was drained several time and drain was replaced. The drainage was not effective then the complainant was taken to surgery again. The second surgery was necessitated solely on account of the defects of the first surgery. From Ext.A11 series lab and test reports it is clear that the pain and distention of the complainant was due to the accumulation of the ascetic’s fluid in the peritoneal cavity. From the evidence, the complications of the complainant is continued and she is still underwent the treatment of PW3 at Lakeshore Hospital. 23. The Supreme Court had observed about expert evidence in Melay Kumar Ganguli & Dr. Kamal Saha Vs. Dr. Sukumar Mukerjee and others (2009 CTJ 1064(SC)(CP) that “A court is not bound by the evidence of the experts which is to a large extent advisory in nature. The court must derive its own conclusion upon considering the opinion of the experts which may be adduced by both sides cautiously and upon taking into consideration the authorities on the point on which he deposes”. 24. The two experts from both sides categorically expressed their interpretation of the word ‘cut off’ as a block. The said interpretation is not based on any literature or authorities on which they relied upon to interpret this word. The credibility of the witness depends on the reasons stated in support of his conclusions and the data and material which from the basis of their conclusion. The case of the complainant is that there is negligence in the treatment given by the opposite party. After surgery, the condition of the complainant did not improve rather worsened. The medical reports shows a measure of negligence from the part of second opposite party during surgery, which caused the further complications of the complainant. During the chief examination PW3 brought out that “during our evaluation no stones were seen in the biliary tract. There is no mention in the records of the exact point of leakage of bile from the biliary tract. It is not mandatory for us for treatment purpose to localise the same. It is possible that, bile duct injury can occur during surgical removal of the gall bladder. If such injury occurs bile may leak into the abdominal cavity”. The complication of the complainant and these depositions reveals that there is a cut/leak in the biliary tract of the complainant after the surgery done by second opposite party, which cause this much complication to the complainant. 25. In the light of the above said observation of the Supreme Court and on evaluation of the medical reports of the complainant and the circumstances of the complications of the complainant, we discard the expert opinion of the word ‘cut off’ as a block and we came to a conclusion that there was a cut injury on common hepatic duct of the complainant during cholecystectomy and it was confirmed by intraoperative cholangiogram. Due to the cut/injury, the bile leaked into the peritoneal cavity, which resulted the entire complications to the complainant. Based on the above discussions, the contention raised by the second opposite party is not sustainable. In the circumstances, we find a clear deficiency from the part of the second opposite party for the treatment given to the complainant. Ext.A1 series to A10 series clearly shows that the complainant had spent an amount of Rs.1,24,500/- for further treatment and other expenses. Hence the opposite parties are liable to compensate treatment expenses incurred by the complainant along with compensation for pain and sufferings. In the circumstances, the complainant’s prayer can be allowed with modifications. The first opposite party remained exparte. Since the second opposite party doctor is an employee of the first opposite party, the first opposite party is vicariously liable for the negligent treatment given by the second opposite party. Hence the first opposite party is liable to pay the compensation and cost to the complainant. 26. In the result, the complaint is allowed, thereby the complainant is allowed to realise the treatment expenses of Rs. 1,24,500/- (Rupees One lakh twenty four thousand and five hundred only) with an interest @ 8% per annum from the date of filing of this complaint till this date along with a compensation of Rs.1,00,000/- (Rupees One lakh only) from the first opposite party. The first opposite party is also directed to pay an amount of Rs.5,000/- (Rupees Five thousand only) as cost to the complainant. This order will be complied within 2 months from the date of receipt of this order, failing which an interest @ of 9% per annum will be followed till the payment of whole amount. Pronounced in the Open Forum on this the 25th day of May, 2010. (Sd/-) C. Lathika Bhai, (Member) Sri. Jacob Stephen (President) : (Sd/-) Sri. N. Premkumar (Member) : (Sd/-) Appendix: Witness examined on the side of the complainant: PW1 : Sarojini. G. PW2 : Cheriyan Mathew. PW3 : Dr. H. Ramesh. Exhibits marked on the side of the complainant: A1(1) to A1(30) : Medical bills. A2(1) to A2(32) : Medical bills. A3(1) to A3(28) : Medical bills. A4(1) to A4(30) : Medical bills. A5(1) to A5(30) : Medical bills. A6(1) to A6(30) : Medical bills. A7(1) to A7(30) : Medical bills. A8(1) to A8(15) : Medical bills. A9(1) to A9(25) : Bills regarding travelling expenses. A10(1) to A10(10):Bills regarding accommodation facility. A11(1) to A11(30): Medical reports, Lab reports and prescription. Witness examined on the side of the opposite parties: DW1 : Dr. K.T. Sebastian. DW2 : Dr. A.P. Kuruvilla.` Exhibits marked on the side of the opposite parties: B1 : Case sheet of General Hospital, Pathanamthitta. B1(a) : Relevant portion of Ext.B1. (By Order) Senior Superintendent. Copy to: (1) Sarojini. G., Saroj Bhavan, Anappara, Kumbazha Muri, Pathanamthitta Village.P.O., Kozhencherry Taluk, (2) The Secretary, Dept. of Health Services, Trivandrum. (3) Dr. K.T. Sebastian, H.S., M.N.A.M.S, Diplomate of National Board, Consultant Surgeon & Civil Surgeon, General Hospital, Pathanamthitta. (4) The stock file.
| | HONORABLE LathikaBhai, Member | HONORABLE Jacob Stephen, PRESIDENT | HONORABLE N.PremKumar, Member | | 
