For the appellant: Mr. A. Sahad, Advocate
For the Respondent No. 4: Mr. B. M. Choudhury, Advocate
Mr. U. Choudhury, Advocate
For the respondent Nos. 1,2 & 3: Did not contest.
Date of Hearing: 06-12-2019
Date of Judgment: 09-01-2010
J U D G M E N T
BY MRS. JUSTICE DR. INDIRA SHAH, PRESIDENT,
Aggrieved by the judgment and order dated 16-08-2016 passed by the District Forum, Kamrup, in C.C. Case No. 33 of 2010, whereby the complaint filed by the appellant was dismissed, the complainant (appellant herein) has preferred this appeal.
2. The factual matrix of the case in brief, is that Sri Surajit Buragohain, husband of the complainant , was admitted in the Gauhati Medical College and Hospital on 30-08-2007, as per advice of Dr. P.M. Deka (Respondent No. 4) for removal of stones accumulated in his kidney. After various pathological and clinical investigations, the Medical Authority decided that the patient had to undergo a surgical operation namely, P.C.N.L. (Percutaneous Nephrolithotomy). On 12-09-2007, he had undergone the PCNL Surgery Operation of his kidney. It is alleged in the complaint that the patient was wrongly operated and therefore, there was severe bleeding from the kidney after PCNL Operation and condition of the patient detoriated due to infection and bleeding as a result of wrong treatment. He was in ICU from 14-10-2007 for 28 days. He had undergone operation twice and one of his kidney was removed. Complaint was filed against the State of Assam, Director of Health Services, Principal cum Chief Superintendent, Gauhati Medical College and Hospital and Dr. P.M.Deka. Dr. P.M. Deka, respondent No. 4 contested the claim by filing written version. The complaint against respondent Nos. 1, 2 and 3 proceeded ex-parte. Both the complainant and respondent No. 4 adduced their evidence in support of their case.
3. The respondent No. 4 in his written statement averred inter-alia that there was absolutely no negligence and deficiency in service while providing treatment to the husband of the complainant. The patient was admitted in the Urology Department of Gauhati Medical College and Hospital on 30-08-2007 with right staghorn calculus for surgery and all necessary investigations were done. He was found to be anemic and hypertensive. Investigations also revealed HbEtrait. Hematologist was consulted and his anemia was corrected by giving blood transfusion. On being prepared for surgery, on 12-09-2007, the patient was taken for Right Side PCNL under general anaesthesia. Standard and PCNL procedure was performed with all necessary care. The surgery went smoothly and complete stone clearance was achieved. His post operative period was responsive except mild urine leak after removal of Nephrostomy Tube and was observed for some days in the ward until he was completely dry and was discharged from the hospital on 27-09-2007 after his condition improved. On 03-10-2007, the complainant informed the respondent No. 4 over telephone that the patient has passed urine mixed with blood and has mild fever since previous night. On enquiry she told that the bleeding started after he jumped in excitement while watching a cricket match. She was asked to bring the patient immediately to the Urology Ward and get him admitted. On 03-10-2007 the patient was again admitted. He was found to have gross hematuria and bladder was palpable. He was anemic and conservative treatment started immediately with I.V. fluids, antibiotics and blood transfusions and regular monitoring of his vital organs. All preliminary investigations were done. There was bleeding off and on with his blood pressure fluctuating. He started to show signs of sepsis. On 13-10-2007 the patient was having fever and sudden episode of hematuria stated. On examination, the patient was found with pulse rate 116/min, BP-96/60 mm Hg, Pallor +++, Temperature- 100F, P/Ab-soft urine fresh blood. In view of the continuing episode of bleeding and features of Septicemia, the patient was taken to Operation Theatre for exploration. The patient and the attendant were explained regarding the need of emergency surgery and if needed Nephrectomy and they consented for the operation. Emergency Ultrasonography was done, and it was revealed that right kidney was grossly swollen with echo genic debris inside the perinephric collection and left kidney was normal. Exploration was done under general anesthesia on 13-10-2007 and the kidney was found to be swollen, edematous, friable with perinephric adhesions. All efforts to save the kidney was not possible, therefore, nephrectomy was performed to save the life of the patient. Thereafter, on 14-10-2007 the patient’s blood pressure dropped and he was shifted to ICU. He was diagnosed to have septicemia with shock. All emergency measures were taken by the ICU doctors. Referrals were sent to various specialists viz medicine specialist, nephrologist, gastroenterologist, hematologist, TB & Chest Medicine Specialist and Cardiothorasis and Vascular Surgery (CTVT) Specialists. The patient developed hypertension and jaundice since 14-10-2007 and with utmost effort and resuscitative measures, he responded to treatment and jaundice gradually decreased. He showed continuous signs of improvement and was monitored by ICU doctors. He was shifted from ICU to Urology Ward on 11-11-2007. He was kept for observation in the Ward and on being completely recovered, was discharged on 21-11-2007. Thus, all possible care and caution were taken at pre and post operative stage by the respondent and other doctors and nurses to save the valuable life of the patient. Nephrostomy was done as a last option to stop the hemorrhage and the complexities of severe bleeding in order to save the life of the patient.
4. Heard Mr. A. Sahad, learned counsel, appearing for the appellant. Also heard Mr. B.M. Choudhury, learned counsel, appearing on behalf of respondent No. 4.
5. It is submitted by the learned counsel appearing on behalf of the appellant that the PCNL surgery of the patient by the respondent No. 4 Dr. P.M. Deka was defective. It was performed negligently which caused profuse bleeding. The patient was re-admitted and second operation of the same kidney had to be carried out to rectify the defects of earlier PCNL operation and in doing so the kidney had to be removed. The complainant had to bear all the expenses of the treatment. The complainant submitted all the bills to GMCH Authority and her repeated request to get the bills was not complied with inspite of intervention of the Health Minister.
6. Learning counsel appearing on behalf of the respondent No. 4 submitted that PCNL is mostly recommended as the first treatment option for management of staghorn calculi and rarely, a nephrectomy is required because of uncontrolled bleeding. In the instant case, nephrectomy was done as a last option to stop hemorrhage and to stop the complexities of severe bleeding in order to save the valuable life of the patient. Learned counsel has relied on AUA (American Urological Association) Guideline 2005, Campbell Walsh Urology 9th Edition, Vol 2 )P, 1435-1439, p 1500-1501, p1544-1546), Urologic Clinics of North America (UCNA) 2007, An Article from the Indian Journal of Urology “Percutaneous Nephrolithotomy: Current Concepts, year 2009, Vol. 25 Issue 1, In a Study from India, Nadiad (Gujrat), published in BJUI,Vol. 104, Issue 4, page 542-548, Aug 2009, Textbook of Endourology, R.E. SOSA, David M ALBALA, Alan D JENKINS, Aaron P. Perimutter: W. B. Saunders Company: pg 146-147, The Clinical Research Office of the Endourological Society PCNL Global Study: Indications, Complications and Outcome in 5803 patients. Journal of Endourology, Vol. 25, No. 1 Jan 2011, Post-Percutaneous Nephrolithotomy Extensive Haemorrhage: A Study of Risk factor. Ahmed R EI Nahas et al. Journal of Urology, vol. 177 pg 576-579, Feb. 2007, Massive Hemorrhage Presenting as a complication after PCNL. K. Sacha et. Al: International Journal of Urology and Nephrology. Vol: 3, pg 315-318; Prevention and Treatment of Complications following PCNL. Skolarikos A, de la Rosette J. Current Opin Urol. 2008 Mar: 18(2):229-34; Hemorrhagic Complications during PCNL. Retrospective Studies of 772 cases. Gremmo E et al. Prog Urol. 1999 Jun, 9 (3):460-3; Severe bleeding after PCNL: results of hyperselective emobolization. Martin X et al, Eur Urol 2000 Feb, 37(2):136-9; PCNL. The authors’ own experience with 106 patients. Cortellini P. et. al: Acta Biomed Ateneo Parmense.1995;66(1-2):21-6.
7. From the medical texts journals it appears that one might have a procedure or surgery to take out kidney stones (i) if the stone is very large and cannot pass on its own. (ii) If one is in a lot of pain, (iii) the stone is blocking the flow of urine of the kidney, (iv) one have had many urinary track infections because of the stone.
8. Four types of treatments can be used for kidney stones;-
i. Shock Wave Lethotripsy (SWL): SWL is the most common kidney stone treatment. It works best for small or medium stones. It is noninvasive, which means no cuts are made in the skin.
ii. Ureteroscopy: This procedure treats stones in the kidney and ureton. This procedure is useful for small stones or medium stones.
iii. Percutaneous Nephrolithotomy or Percutaneous Nephrolithotripsy (PCNL): If stone is large or lithotripsy does not break it up enough, this surgery is an option. PCNL uses a small tube to reach the stone and break it up with high-frequency sound waves. Surgeon will make a small cut in the back or side and place a thin scope into the hole. This surgery can be done in one of the two ways-
Nephrolithotomy: Surgeon removes the stone through a tube.
Nephrolithotripsy: Surgeon uses sound wave or a laser to break up the stone and then vacuums up the pieces with a suction machine.
iv. Open Surgery: Open Surgery is rarely done for kidney stone. But if the stone is very large or it cannot be removed or crushed with other treatments, surgery might be an option.
Side effects of all the above mentioned procedures include;-
Bleeding
Infection
Damage of Kidney etc.
9. Admittedly, the patient in this case was admitted in the Urology Department of Gauhati Medical College and Hospital on 30-08-2007 with right staghorn calculies for surgery. Staghorn calculi refers to large branching stones that fill all part of the renal pelvic and branch into several or all of the calyces. The medical literatures reveal that PCNL for staghorn stones show result of complete stone clearance rates of 98.5% and 71% for partial and complete staghorn stones, respectively. The overall complication rate in these studies were as low as 4%. PCNL, is therefore recommended as the first line treatment for staghorn stones.
10. From the evidence on record it transpires that all necessary investigations were performed before performing PCNL procedure. The surgery went off smoothly and the patient was discharged on 27-09-2007. After 19 days of PCNL, the patient suffering from bleeding from his right kidney, was again admitted in the hospital on 03-10-2007. He was kept under active treatment and on 13-10-2007 through nephrectomy his right kidney was removed. The admitted fact is that on examination of the patient, it was found that there was gross hematuria (bleeding) and bladder was palpable. He was immediately catheterized and conservative treatment viz I.V. fluids, antibiotics and blood transfusion were provided. On 13-10-2007, since morning he suffered from fever and started sudden episode of haematuria, he had pulse 116/min, B.P.-96/60 mm Hg, Pallor +++, Temp-100’F, P/Ab-soft and urine-fresh blood. Observing all these features, the respondent No. 4 decided to go for emergency surgery of the kidney to save the life of the patient. The complainant and the patient were explained of all the complications and when they consented, nephrectomy was done and right kidney was removed.
11. The complainant in her cross-examination has admitted that the respondent No. 4 in a renowned Urologist having requisite professional skill and he is the Head of the Department of Urology of Gauhati Medical College and Hospital. When she approached the respondent No. 4 for treatment of her husband, she or her husband had no doubt about the respondent No.4’s professional skill and therefore they decided to avail treatment under him. She further admitted that on 02-10-2007 at night her husband developed certain complicacy, blood came out and then she over phone, consulted Dr. P. M. Deka (respondent No. 4). Dr. Deka advised her to admit him in the Gauhati Medical College and Hospital. After admission, on 03-10-2007, Dr. Deka tried to stop bleeding by giving various medicines. From 01-10-2007 till the day of operation on 13-10-2007, the patient was on constant observation, treatment and medication under the supervision of Dr. Deka. She admitted her signature in the consent form (Ex. A 5) for the second operation. She also admitted that after removal of kidney, the patient was admitted in ICU for better monitoring and management. She further admitted that the respondent No. 4 had done his best in treating her husband.
12. It transpires from the evidence of the complainant that she is a government employee and that her husband is entitled for medical reimbursement in case of his treatment. She stated that the original bills and vouchers were submitted to the Office of the Principal of GMCH, on being asked by the doctor. The Urology Department after verification and on completion of counter signature, submitted the bills to the Office of the Superintendent and Principal, GMCH. On completion of all the formalities by the Medical Authority/Principal and Superintendent, bills and vouchers were returned to her. It is alleged by the complainant that after three days, she was asked over phone by the Office of the Principal to bring the file to the Office of the Principal, GMCH. She exhibited the letter (Ex. 3) whereby she requested the Principal to return the bills. Vide Ex. 4, she requested the Superintendent also. She approached the Health Minister, seeking financial help. In all these letters, she never alleged any negligence or wrong treatment or deficiency of service on the part of the respondent No. 4. She admitted that as she did not receive the medical re-imbursement in respect of treatment of her husband, she filed the complaint before the District Forum.
13. True test for establishing negligence on the part of a doctor is as to whether he has been proved to be guilty of such failure, as no doctor of ordinary skill would be guilty of if acting with reasonable care. In the case of Martin F D’souza vs Mohd. Ishfaq,(2009) 3 SCC, it was held ;-
“A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduce fell below that of the standards of a reasonably competent practitioner in his field. For instance, he would be liable if he leaves a surgical gauze inside the patient after an operation, or operates on the wrong part of the body, and he would be also criminally liable if he operates on someone for removing an organ for illegitimate trade.”
14. In the present case, the complainant has not pointed out what was the wrong committed by the doctor, how and why the respondent No. 4 be said to be negligent while treating her husband. On the contrary, the medical journals supports the contention of respondent No. 4 that PCNL procedure is first treatment option for management of staghorn calculi and its side effect may be bleeding and to save the life of the patient, in case of uncontrolled bleeding, nephrectomy is required. It is not the complainant’s case that the respondent No. 4 treated the patient without having sufficient skill and care. There is nothing on record to show that any wrong treatment was given to the husband of the complainant. From the evidence on record, it transpires that reasonable standard of care expected from a medical man was given to the husband of the complainant.
15. In view of what we have discussed hereinabove, we find that the impugned judgment and order of the District Forum suffers no infirmity. We, therefore, affirm the impugned judgment and order. In the result, the appeal is dismissed and disposed of. Parties shall bear their own costs.
16. Send back the original record of the case filed before the District Forum, along with a copy of this judgment to the concerned District Forum.
