Harmu Hospital & Research Centre v. Suman Jaiswal, REVISION PETITION NO. 1821 OF 2013, decided by the NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI on 15.12.2017
Facts: On 13.7.2005, the complainant, Suman Jaiswal suffered abdominal pain and was taken to Harmu Hospital & Research Centre, Harmu, Ranchi /(OP-1) where OP-2/Dr. Satish Midha, after examining her, diagnosed for Choelitheasis and the same was confirmed by ultrasound (USG), patient was operated on 1.8.2005, the patient had pain in abdomen again on 22.11.2005 for which she was again admitted in OP 1/hospital from 22.11.2005 to 24.11.2005 and the same medicines were prescribed and was also informed that if she develops pain again, another operation was needed. The patient developed pain again and she contacted Dr. R. R. P. Singh, Chirkunda, Dhanbad, who operated her and removed gall bladder alongwith stone, was discharged on 3.12.2005 and gall bladder and stone were also sent for histopathology examination at Kolkata. The complainant alleged that during first admission nothing was done at OP 1/hospital, patient’s hemoglobin was below average and no consent was taken before laparoscopic operation.
Defense: According to OP-2, the ultrasound (USG) study showed that there was a stone in the neck of the gall bladder and not in the gall bladder itself, during Laparoscopic operation which was performed by OP-2, it was found that there was pus inside the gall bladder i.e. empyma; therefore, cholecystectomy was performed. The specimen was sent to Bell View Clinic which reported it as Acute Cholecystitis. Even after the laparoscopic operation, the stone remained in the Cystic duct. The prescription of Dr. R. R. P. Singh dated 22.11.2005, also clearly mentioned about scars of laparoscopic operation. Dr. R. R. P. Singh performed surgery for removal of stone and the Cystic duct. Therefore, there was no negligence on the part of OP. The District Forum, on the basis of ultrasound report, discharge slip, which mentioned about compromised operation, and relying upon the expert opinion of Dr. A. P. Sinha, retired professor of P.M.C.H., Patna, concluded that there was no deficiency on the part of OPs and the complaint was dismissed. The State Commission considered the issue of mandatory consent, which was not obtained by OP-1 before laparoscopy Cystectomy and held the OP-1 liable for the limited extent for not informing about the compromised Cholecystectomy, that there was no deficiency or negligence on the part of treating doctor/OP2 and partly allowed the appeal and directed the OP 1 for reimbursement of medical expenses of Rs.49,800/- with interest @ 9% per annum from the date of filing of the complaint, and also awarded compensation of Rs.25,000/- alongwith costs of Rs. 10,000/-.
Expert opinion: “That the patient was re-operated by Dr. R. R. P. Singh at Lions Club Raghunath Kharkia Eye Hospital at Chirkunda, who reportedly removed the ‘Gall Bladder’ with stone on 9.12.2005 after which the patient got cured.”
“That the operating surgeon (Dr. Midha) claims that there was distortion of the normal anatomy due to the presence of inflammation and impaction of stone in the Gall Bladder neck. As a result he opted to go for a compromise operation by leaving rather long cystic duct to avoid the risk of serious complications. The Gall Bladder as claimed was shown to the relatives.”
“Regarding the consent for operation from the patient, although it is a pre-operative formality but in this case, the very fact that the patient, after being advised by the doctor, submitted herself for the procedure in conscious state of mind, is itself indicative that there was an implied consent.”
Observations: The only question for meritorious consideration is that ‘whether the allegation of complainant is sustainable that the OP-2 had not performed Cholecystectomy during her first admission at OP 1/Hospital, which resulted into second operation at the hands of Dr. R. R. P. Singh. It is pertinent to note that the laparoscopy surgery is a key-hole surgery. The ultrasound dated 30.7.2005 revealed that “Distended Gall Bladder with stone of approximately 15 mm diameter was seen impacted at G B. Neck. C B D was not dilated. As per first discharge summary dated 3.8.2005, it was stated that the OP-2 performed laparoscopic Cholecystomy after proper investigation, but laparoscopically the gall bladder was stated to be empyma with acute Cholecystitis. He has ligated the Cystic duct, performed Cholecystomy and drain was given. After the surgery, patient was administered higher antibiotics and proper medicines. On perusal of second discharge summary dated 24.11.2005, it revealed that the patient was admitted on 22.11.2005 with the complaint of pain in abdomen. She was again investigated for routine blood investigations and the OP 2 suspected diagnosis as Cystic duct stump with stone, therefore, the patient was managed conservatively with injection Tramazac, Phenargen, Pantocid, Taxim, Metrogyl. Patient was discharged with the advice for laparoscopy after 4 to 6 weeks or earlier if pain recurs. But, thereafter, patient approached Dr.R.R.P. Singh on 22.11.2005, who wrote in his prescription about Scars of lapchole was seen. Thereafter, the patient got admitted on 4.12.2005 under care of Dr. R. R. P. Singh at Lions Club R. N. Kharkia Memorial Eye Hospital, Chirkunda where she underwent surgery for Cholelythiasis and Cholecystitis. Regarding the issue of not taking BP or hemoglobin is concerned, test has no relevance in this case. The treating surgeon and the anesthetist will not perform the surgery if the patient is unfit. Even the anaesthesia could not be administered if the patient was to be unfit.
Held: Considering the entire facts of the case and on the basis of medical record and the expert opinion, in our view, OP 2 while performing laparoscopic cholecystectomy found that due to pus, the anatomy of the gall bladder was distorted. To be on safer side and to avoid serious complications, OP performed particle cholecystectomy and the large stump of the cystic duct was left. It was a compromised surgery. Thereafter, there was re-appearance of the pain to the patient. Therefore, the re-exploration surgery was performed by Dr. R. R. P. Singh, who removed the Cystic duct alongwith a stone, which was necessary treatment at that hour. Hence, it was not due to negligence of OP-2 i.e. treating doctor. However, in the instant case, as observed by the State Commission, OP-2 had failed to inform about the compromised surgery at the time of taking the consent and the same was also not mentioned in the discharge slip. Therefore, we are of the considered view that failure on the part of treating doctor/OP-2, is liable for deficiency in service to the limited extent. We also observe that there was no fault in the Laparoscopic procedure performed by OP-2 and there was no injury caused due to laparoscopic surgery. Hence, it was not a medical negligence on the part of OP-2. We agree with view taken by the State Commission, which awarded just and proper compensation observing the liability to the limited extent. On the basis of foregoing discussion, we do not find any error apparent in the well-reasoned order of the State Commission. Therefore, the revision petition is hereby dismissed.