w w w . L a w y e r S e r v i c e s . i n



Mandeep Kaur & Others v/s Post Graduate Institute of Medical Education & Research & Others


Company & Directors' Information:- M G INSTITUTE OF EDUCATION PRIVATE LIMITED [Active] CIN = U80301DL2002PTC118047

Company & Directors' Information:- E-GRADUATE INSTITUTE INDIA PRIVATE LIMITED [Strike Off] CIN = U80302TN2003PTC051577

Company & Directors' Information:- M. S. INSTITUTE OF EDUCATION PVT. LTD. [Active] CIN = U80301DL2006PTC152100

Company & Directors' Information:- INSTITUTE OF EDUCATION AND RESEARCH [Active] CIN = U80904UP2012NPL048973

Company & Directors' Information:- P R EDUCATION INSTITUTE PRIVATE LIMITED [Active] CIN = U80903DL2004PTC129195

Company & Directors' Information:- V C EDUCATION INSTITUTE PRIVATE LIMITED [Active] CIN = U80903DL2004PTC129201

Company & Directors' Information:- R V EDUCATION INSTITUTE PRIVATE LIMITED [Active] CIN = U80903DL2004PTC129311

    First Appeal No. 76 of 2014

    Decided On, 30 April 2014

    At, Union Territory Consumer Disputes Redressal Commission UT Chandigarh

    By, THE HONOURABLE MR. JUSTICE SHAM SUNDER (RETD.)
    By, PRESIDENT
    By, THE HONOURABLE MR. DEV RAJ
    By, MEMBER & THE HONOURABLE MRS. PADMA PANDEY
    By, MEMBER

    For the Appellants: M.S. Pandher(Retd.), Mandeep Kaur, Advocates. For the Respondents: R1, R4 & R5, Rajesh Garg, R2 & R3, Rohit Sapra, Advocates.



Judgment Text

Padma Pandey, Member:

1. This appeal is directed against the order dated 27.01.2014, rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which it dismissed the complaint filed by the complainants (now appellants).

2. In brief, the facts of the case are that the complainants alleged medical negligence for the treatment given by the Opposite Parties to the deceased husband of complainant No.1, who was also the father of complainant Nos.2 and 3. It was stated that the deceased was running a Medical Store by the name of Singh Medicos and while he was in the shop, some unknown miscreants, attacked him on 01.11.2010. As he had been shot in the abdomen, he was immediately taken to Govt. Medical College & Hospital, Sector 32, Chandigarh for treatment. On 2.11.2010, the attending doctors recommended that he be taken to PGIMER. It was further stated that the patient was taken to PGIMER where he was attended upon by Dr. A. Behera (Opposite Party No.2), alongwith his team, who operated upon him. On inquiry, the family members were surprised to know that the bullet had not been removed from the body during surgery; whereas, the gall bladder had been removed while the duodenum was repaired. When the family inquired from the doctors why the bullet was not removed as they apprehended that it could result in spread of infection, as also danger to other organs of the body of the injured, the doctors were of the firm opinion that the bullet must not be removed at that time. It was further stated that, at that time, the patient was in his senses, and was talking to everyone around him. The follow-up treatment was given by the doctors and many tests were conducted, on the patient, and many medicines were also administered to him at regular intervals.

3. It was further stated that on 5.11.2010, the patient started complaining of a lot of pain, in his abdomen, and around the area where the bullet was lodged. The family of the complainants again insisted upon the doctors that the bullet should not be kept lodged, in the body, and must be removed, as they had an apprehension of spread of infection, but the doctors did not pay heed to their request. It was further stated that on 11.11.2010, the pain of the injured became unbearable and realizing that the area around the bullet wound was turning colour and had all gone numb and very sore, an operation was conducted on 12.11.2010 by Opposite Parties No.4 & 5. The bullet was finally removed. The patient was, thereafter, kept under observation. All this time, the injured was in perfect talking condition and was always complaining of pain and uneasiness in the area of bullet injury. It was further stated that the situation remained the same till 21.11.2010, when the injured suddenly started developing complications. There was a drop in his blood pressure. Resuscitating procedure was started and the patient was put on life support as there was multiple organ failure. The situation deteriorated further till the patient finally passed away on 22.11.2010. The reason given by the doctors was multiple organ failure due to the spread of poison and infection owing to the bullet having been lodged in the abdomen for more than 10 days. According to the complainants, the toxicity from the effluence of the bullet ingredients caused the death as the organs of the deceased had been affected. This was something that the family of the deceased had always feared, right from the beginning. Post Mortem of the dead body was conducted by the Opposite Parties and photographs were also taken.

4. It was further stated that the complainants were made to suffer this horrifying experience of suffering for no fault on their part. The head of their family suffered unbearable pain for almost 3 weeks, and eventually passed away, due to wrong treatment and wrong diagnosis by the Opposite Parties, who treated him as an experiment, without finding a cure for his ailment. Alleging medical negligence and breach of duty on the part of the doctors, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the 'Act' only), was filed.

5. In their joint written reply, Opposite Parties No.2 and 3 admitted the treatment given to the patient. It was stated that the patient namely Ravinder Singh Pandher was referred from Govt. Medical College & Hospital, Sector 32, Chandigarh after resuscitation on 1.11.2010 at around 11.00 P.M. and not on 2.11.2010 as averred. It was further stated that the patient was admitted in Emergency Ward No.1, with gunshot/ bullet injury in the abdomen and was adequately resuscitated as per protocol by the attending Doctors in the Emergency Ward. The patient was evaluated with CECT abdomen, which revealed a duodenal injury and hemoperitoneum (blood in peritoneal cavity) and a retroperitoneal hematoma, bulky right Psoas muscle suggesting intramuscular hematoma and a linear metallic density object in subcutaneous space over right erector spinaemuscle with surrounding fat, stranding at level of L3 – L4 vertebra. Clinically, the wound of entry of the projectile/ bullet was located in right subcostal/upper abdomen. Since, there was no wound of exit and the projectile/ bullet had lodged itself at L3 – L4 vertebra, above the right erector Spianemuscle, it was clinically suspected to have caused severe intra abdominal damage, especially to duodenopancreatic area and other abdominal viscera or major vessels. The projectile/ bullet had traversed the abdomen towards L3 – L4 level. Besides CT scan and X-ray, routine blood investigation was also done. Accordingly, on the night intervening 01.11.2010/02.11.2010 itself the patient was shifted to Surgical ICU (Hematoma = accumulated blood) for immediate surgery.

6. The qualifications and capability of Opposite Party No.2 were given in the reply to prove that he was accomplished to treat the patient. It was further stated that on 02.11.2010 at 8.30 a.m. the patient was taken up for surgery after pre-operative cover of antibiotics and fluid resuscitation. The surgery was performed by a team of Senior Surgeons including answering Opposite Parties. An extensive surgery carrying a high morbidity and mortality risk was performed upon the patient. On exploratory laparotomy i.e. opening of abdomen, the following were detected: -

i) 1 ltr. of biliohemorrhagic fluid (bile, enteric content and blood)

ii) 1 x 1 cm laceration/ perforation in the greater omentum.

iii) approx. 6 sq. cm ( 3 x 2 cm ) laceration and injury to the 2nd and 3rd part of duodenum distal to the ampulla of the bile duct.

iv) laceration/injury to the pancreatic head (approx 1 x 1 cm).

v) hematoma at the lower pole of right kidney and perinephric hematoma.

vi) retroperitoneal hematoma in right side.

Rest of viscera was assessed to be normal.

7. It was further stated that the operating team assessed the case of the patient to be of a severe degree of combined pancreatico duodenul injury (Grade IV duodenual injury and Grade II pancreatic injury) with contamination of peritoneal space (abdominal cavity) with intestinal contents, bile and pancreatic secretion mixed with blood present in abdominal cavity During the operation, there was zone 1 (around duodenum, pancreas and major vessels) and zone 2 (around kidney) hematoma. Zone 1 hematoma had engulfed the pancreatoduodenul trauma area, which was explored as per established medical protocol, after mobilization of the duodenum and pancreas. Any injury to major vessels like IVC (inferior vena cava), aorta and mesenteric vessels (vessels to the intestines) were excluded after meticulous dissection as per established norms. Due to hematoma, the muscles in the back had become bulky and the bullet was not felt from within the abdominal cavity, which as per CT scan was lodged in the soft tissue of the back. It was further stated that as per established norms, when the bullet lodged itself away from the major vessels and vital structures, in the soft tissue and there is overlying hematoma in the retroperitonum, the tract of the projectile should not have been explored, as it would result in more bleeding in the retroperitonum due to release of pressure within the tissues. Fresh surgical dissection would result in exposing of more tissues to contamination in the abdomen. The bullet was thus left undisturbed in the soft tissues, as it in itself had minimal chance to cause infection and complication. The immediate risk to be tackled was removal of infection and complication due to the gross contamination from peritoneal cavity and to save the patient from serious pancreatico duodenal and retroperitoneal injury which had bled internally.

8. It was further stated that the professional decision of the operating team to leave the bullet in the soft tissue was admittedly informed to the relatives of the patient. The 2nd, 3rd up to 4th part of devitalized (dead) duodenum was resected and the opening of the pancreatic duct was also identified and cannulated. Due to bile staining and local bleeding hematoma, the lower end of Common Billary Duct (CBD) could not be identified from below and it was identified by flushing through Cystic duct/CBD. This was necessary for a safe end to end duodenojejunal anastomosis (DJ) and not to include these in anastomosis suture line. It was further stated that a combination of spillage of bile, pancreatic and gastric secretions could play havoc to dissected tissues and could damage/ digest the exposed tissues during dissection at surgery. Therefore, a form of diverticulization procedure for pancreato-duodenal injury was done, and a diversion for most of the bile was made after a cholecystectomy. A tube gastrostomy (TG) was also done to divert gastric juice and secretions along with pyloric exclusion. A feeding jejunostomy (FJ) was performed to maintain a feeding line, if and when the patient improved and recovered from the present injury, for later feeding. All dead parts in the pancreatic head were removed as there was no visible ductal injury and a drain was placed. As the injury was of very grave nature and there was always a risk of major abdominal infection and systemic sepsis, hence, a drain was put in the retroperitoneum on the right side in the area of dissection and another drain was put around the anastomosis.

9. It was further stated that the attending relatives of the patient were informed about the nature of the surgery and possible outcome, as also about the lodged bullet in the subcutaneous plane, which would be tackled later if and when required. It was expected that the organized clot around the bullet would liquefy and then it would be extracted later from the skin side in the back. In trauma, more damaging and life threatening aspects get priority, and bullets could be left behind in soft tissues to be tackled later if only necessary. The patient was put on a ventilator support and he remained intubated till 4.11.2010. Thus, the allegations of the complainants that the patient was talking and conscious were denied as it was not possible for him to talk during this period.

10. It was further stated that post-operative, the patient was given broad spectrum antibiotic cover and H2 receptor blockers to decrease acid output. Octreotide infusion was started to decrease the secretion from stomach, duodenum and pancreas and protein supplementation was given. On 4.11.2011, the patient had fever and crackling sound in the lung/chest for which he was receiving chest physiotherapy and broad spectrum antibiotic cover. It was further stated that on 5.11.2010, the patient had delirium and was not maintaining his acid base gases in the blood. On the night intervening 5.11.2010/6.11.2010 under ICU consultation, the patient was reintubated and put back on ventilator, only after which the patient had maintained his acid base balance and could reach his saturation of 99.7%. It was denied that the patient was fully conscious. It was further stated that the patient was in this period, being administered intravenous pain killers, analgesics and morphine. The patient had long midline incision with abdominal drain tubes and three other tubes draining intestine, coming out of abdomen, a large operative dissection area inside abdomen and, in such a condition, the patient could not have specifically complained to his attendants about the bullet as alleged in the complaint.

11. It was further stated that on 6.11.2010, the patient was under sedation and had hypokalemia (decreased level of potassium in blood) requiring potassium infusion. The patient was recorded to be in M5 status neurologically and could not have been communicative. He was also under morphine and midazolam infusion to control pain due to the large surgical incision in the abdomen and operative procedures and multiple drainage tubes. This was also done so as not to allow the patient to fight against the ventilator support. It was further stated that on 7.11.2010, tracheostomy was also done on the patient, wherein, a tube was put in the wind pipe opening to assist ventilation and clear secretions in distal air way. On 7.11.2010, the drains were draining serious fluid and internal secretions and no blood. As the patient was immobilized, deep venous thrombosis prophylaxis was started. The patient continued to have chest infection. The lesser sac drain (LSD) and blood culture grew micro-organisms like E-coli and pseudomonas (bacteria) suggesting infection. It was further stated that on night intervening 09/10.11.2010, the bullet could be felt in the subcutaneous plane as tense edema and clotting had settled. Thus a small incision was given in the back region and the bullet was extracted by Dr.Nusrath and handed over to Sr. Medical Officer (SMO), as per requirement of procedure in medico-legal cases. The operation was minor and was done by bed side only with a small incision. No general anesthesia was required or given. It was further stated that on 10/11.11.2010 the patient was already tracheotomised while on ventilator and was in M5 neurological status receiving sedation and thus could not have talked or communicated with anyone. The interpretation of the complainants about the bullet wound turning numb and sore was a medical condition of skin changing in resolving the hematoma. At this time, the patient was in no condition for discharge as further treatment was necessary. In the meantime, the patient was having decreasing trend of TLC despite antibiotic cover and increased infection required neurological consultation also.

12. It was further stated that on 12.11.2010, a Contrast Enhanced CT (CECT) was done to rule out intra- abdominal collection, which showed Grade-C pancreatitis. A higher generation and stronger antibiotic was started. Pulmonary consultation was also taken and suggested treatment was followed. Due to the massive nature of the injury in the abdomen, the patient had overwhelming sepsis in the abdominal cavity initially due to E-coli and klebseilla (bacteria) and later on due to acinetobacter and candida infections, which was being duly treated. The central line was also changed when required.

13. It was further stated that on 18.11.2010, the patient was observed to have mild right pleural effusion (fluid collection around the lungs) with underlying consolidation. On 21.11.2010, the patient had hypotension (decrease in blood pressure) for which fluids were given, to which he responded, while continuing to be on ventilator. The patient succumbed to his injuries on 22.11.2010. It was further stated that due to contamination in the body from the injury, resulting in severe intra-abdominal infection, which had led to systemic sepsis and chest infection, the patient could not recover. These infections are known cause of morbidity and mortality in such a case. All the allegations made by the complainants regarding the wellness of the patient, as well as his being aware and communicative to his relatives, during the treatment were denied by the answering Opposite Parties. It was further stated that the treatment strategy for patients with gunshot injuries mostly depends on the hemodynamic status of the patient. The first priority, in such cases, is to control the bleeding, perform other minimal procedures, effect temporary closure and continue resuscitation and correct hematological and bio-chemical disorders. It was further stated that in the case of the patient, there was an urgent need to control the intra- abdominal contamination. It was further stated that the treatment given to the patient was the standard treatment in such like situations, and there was no departure from the traditional method of treatment. There was no nexus between procedure adopted for treatment and the death of the patient. It was further stated that no fault or medical negligence, even remotely, could be attributed to the Opposite Parties. It was further stated that the well established and recognized standard procedures only were followed in the treatment given to the patient. It was prayed that the complaint filed by the complainants be dismissed.

14. On 19.03.2013, Counsel for Opposite Parties No.1 & 4 to 6, adopted the reply filed by Opposite Party No.2 and 3 and placed, on record, the medical record of the PGIMER, Chandigarh relating to the complete treatment given to the deceased, on behalf of Opposite Parties No.1, 4 to 6.

15. The Parties led evidence, in support of their case.

16. After hearing the authorized representative of the appellants, Counsel for the Opposite Parties, and, on going through the evidence and record of the case, the District Forum, dismissed the complaint, as stated above.

17. Feeling aggrieved, the instant appeal, has been filed by the appellants/complainants.

18. We have heard the authorized representative of the appellants, the Counsel for the respondents, and have gone through the entire record of the case, carefully.

19. The Authorized Representative of the appellants submitted that the appellants placed, on record, the X-ray films dated 02.11.2010 of the deceased before the District Forum showing the bullet position with Hematoma (collection of contaminated blood) in the subscutaneous tissue (under the skin) right backside at the level of L.V. 3-4 and News Article report pointing to rise in surgical site infections at the operation theaters of the respondents/Opposite Parties. He further submitted that besides this, the appellants also placed, on record, the CECT scan report dated 02.11.2010, operation procedure notes dated 02.11.2010, bed side minor surgical procedure notes on removal of bullet with small incision (cut) on the night of 10/11 Nov. 2010 by the resident surgeon Dr.Nusrath Khan and postmortem report of the deceased dated 22.11.2010 by Dr.S.P.Mandal. He further submitted that x-ray and CECT scan investigation reports dated 02.11.2010 clearly showed the position of the bullet lodged with Hematoma. He further submitted that collection of contaminated blood mixed with bile, pancreatic and gastric juices spilled from the Duodenum through the track made by the bullet. He further submitted that the bullet was lodged under the skin and instant removal with minor incision and drainage of contaminated fluid would have prevented sepsis. He further submitted that the District Forum failed to take note of the minor surgical procedure notes dated 10/11 Nov. 2010 with the sketch by Dr.Nusrath Khan, which read, '10 cm x 10 cm fluctuant swelling + nt c (with) inclination. Incision given over the most prominent place. 100ml of pus alongwith bullet extracted from the wound. The debridement done after thorough washing. Bullet handed over to duty SMO proving that the severe sepsis took place in the area round the bullet lodged site, which had also spread to the operated area and organs through the track of bullet entry, resulting in secpticeama and death. He further submitted that the order of the District Forum being illegal, is liable to be set aside.

20. The Counsel for respondents/Opposite Parties No.2 and 3 submitted that the patient namely Ravinder Singh Pandher was referred from Govt. Medical College & Hospital, Sector 32, Chandigarh after resuscitation on 1.11.2010 at around 11.00 P.M. and not on 2.11.2010. He further submitted that the patient was admitted in Emergency Ward No.1, with gunshot/ bullet injury in the abdomen and was adequately resuscitated as per protocol by the attending doctors in the Emergency Ward. The patient was evaluated with CECT abdomen, which revealed a duodenal injury and hemoperitoneum (blood in peritoneal cavity) and a retroperitoneal hematoma, bulky right Psoas muscle suggesting intramuscular hematoma and a linear metallic density object in subcutaneous space over right erector spinaemuscle with surrounding fat, stranding at level of L3 – L4 vertebra. Clinically, the wound of entry of the projectile/ bullet was located in right subcostal/upper abdomen. He further submitted that since, there was no wound of exit and the projectile/ bullet had lodged itself at L3 – L4 vertebra, above the right erector Spianemuscle, it was clinically suspected to have caused severe intra abdominal damage, especially to duodenopancreatic area and other abdominal viscera or major vessels. The projectile/ bullet had traversed the abdomen towards L3 – L4 level. Besides CT scan, X-ray and routine blood investigation was also done. Accordingly, on night intervening 01.11.2010/02.11.2010 itself the patient was shifted to Surgical ICU (Hematoma = accumulated blood) for immediate surgery. He further submitted that the surgery was performed by a team of Senior Surgeons including answering Opposite Parties. An extensive surgery carrying a high morbidity and mortality was performed upon the patient. On exploratory laparotomy i.e. opening of abdomen, the following were detected: -

i) 1 ltr. of biliohemorrhagic fluid (bile, enteric content and blood)

ii) 1 x 1 cm laceration/ perforation in the greater omentum.

iii) approx. 6 sq. cm ( 3 x 2 cm ) laceration and injury to the 2nd and 3rd part of duodenum distal to the ampulla of the bile duct.

iv) laceration/injury to the pancreatic head (approx 1 x 1 cm).

v) hematoma at the lower pole of right kidney and perinephric hematoma.

vi) retroperitoneal hematoma in right side.

Rest of viscera was assessed to be normal.

21. He further submitted that the operating team assessed the case of the patient to be of a severe degree of combined pancreatico duodenul injury (Grade IV duodenual injury and Grade II pancreatic injury) with contamination of peritoneal space (abdominal cavity) with intestinal contents, bile and pancreatic secretion mixed with blood present in abdominal cavity During the operation, there was zone 1 (around duodenum, pancreas and major vessels) and zone 2 (around kidney) hematoma. Zone 1 hematoma had engulfed the pancreato duodenul trauma area, which was explored as per established medical protocol, after mobilization of the duodenum and pancreas. Any injury to major vessels like IVC (inferior vena cava), aorta and mesenteric vessels (vessels to the intestines) were excluded after meticulous dissection as per established norms. Due to hematoma the muscles in the back had become bulky and the bullet was not felt from within the abdominal cavity, which as per CT scan was lodged in the soft tissue of the back. He further submitted that as per the established norms, when the bullet lodged itself away from the major vessels and vital structures, in the soft tissue and there is overlying hematoma in the retroperitonum, the tract of the projectile should not have been explored, as it would result in more bleeding in the retroperitonum due to release of pressure within the tissues. Fresh surgical dissection would result in exposing of more tissues to contamination in the abdomen. The bullet was thus left undisturbed in the soft tissues, as it itself had minimal chance to cause infection and complication. The immediate risk to be tackled was removal of infection and complication due to the gross contamination from peritoneal cavity and to save the patient from serious pancreatico duodenal and retroperitoneal injury which had bled internally. He further submitted that the professional decision of the operating team to leave the bullet in the soft tissue was admittedly informed to the relatives of the patient. The 2nd, 3rd upto 4th part of devitalized (dead) duodenum was resected and the opening of the pancreatic duct was also identified and cannulated. Due to bile staining and local bleeding hematoma, the lower end of Common Billary Duct (CBD) could not be identified from below and it was identified by flushing through Cystic duct/CBD. This was necessary for a safe end to end duodenojejunal anastomosis (DJ) and not to include these in anastomosis suture line. He further submitted that a combination of spillage of bile, pancreatic and gastric secretions could play havoc to dissected tissues and could damage/ digest the exposed tissues during dissection at surgery. Therefore, a form of diverticulization procedure for pancreato-duodenal injury was done, and a diversion for most of the bile was made after a cholecystectomy. A tube gastrostomy (TG) was also done to divert gastric juice and secretions along with pyloric exclusion. A feeding jejunostomy (FJ) was performed to maintain a feeding line, if and when the patient improved and recovered from the present injury, for later feeding. He further submitted that all dead parts in the pancreatic head were removed as there was no visible ductal injury and a drain was placed. As the injury was of very grave nature and there was always a risk of major abdominal infection and systemic sepsis, hence, a drain was put in the reetroperitoneum on the right side in the area of dissection and another drain was put around the anastomosis.

22. He further submitted that the attending relatives of the patient were informed about the nature of the surgery and possible outcome, as also about the lodged bullet in the subcutaneous plane, which would be tackled later if and when required. It was expected that the organized clot around the bullet would liquefy and then it would be extracted later from the skin side in the back. In trauma, more damaging and life threatening aspects get priority, and bullets could be left behind in soft tissues to be tackled later if only necessary. He further submitted that the patient was put on a ventilator support and he remained intubated till 4.11.2010, thus, the allegations of the complainants that the patient was talking and conscious were denied as it was not possible for him to talk during this period.

23. He further submitted that post-operative, the patient was given broad spectrum antibiotic cover and H2 receptor blockers to decrease acid output. Octreotide infusion was started to decrease the secretion from stomach, duodenum and pancreas and protein supplementation was given. On 4.11.2011, the patient had fever and crackling sound in the lung/chest for which he was receiving chest physiotherapy and broad spectrum antibiotic cover. He further submitted that on 5.11.2010, the patient had delirium and was not maintaining his acid base gases in the blood. On the night intervening 5.11.2010/6.11.2010 under ICU consultation, the patient was re-intubated and put back on ventilator, only after which the patient had maintained his acid base balance and could reach his saturation of 99.7%. The submission of the complainants that the patient was fully conscious was denied being false. He further submitted that the patient was in this period being administered intravenous pain killers, analgesics and morphine. The patient had long midline incision with abdominal drain tubes and three other tubes draining intestine, coming out of abdomen, a large operative dissection area inside abdomen and, in such a condition, the patient could not have specifically complained to his attendants about the bullet as alleged in the complaint.

24. He further submitted that on 6.11.2010, the patient was under sedation and had hypokalemia (decreased level of potassium in blood) requiring potassium infusion. The patient was recorded to be in M5 status neurologically and could not have been communicative. He was also under morphine and midazolam infusion to control pain due to the large surgical incision in the abdomen and operative procedures and multiple drainage tubes. This was also done so as not to allow the patient to fight against the ventilator support. He further submitted that on 7.11.2010, tracheostomy was also done on the patient, wherein, a tube was put in the wind pipe opening to assist ventilation and clear secretions in distal air way. On 7.11.2010, the drains were draining serious fluid and internal secretions and no blood. As the patient was immobilized, deep venous thrombosis prophylaxis was started. The patient continues to have chest infection. The lesser sac drain (LSD) and blood culture grew micro-organisms like E-coli and pseudomonas (bacteria) suggesting infection. He further submitted that on the night intervening 09/10.11.2010, the bullet could be felt in the subscutaneous plane as tense edema and clotting had settled. Thus a small incision was given in the back region and the bullet was extracted by Dr.Nusrath and handed over to Sr. Medical Officer (SMO), as per requirement of procedure in medico-legal cases. The operation was minor and was done by bed side only with a small incision. No general anesthesia was required or given. He further submitted that on 10/11.11.2010 the patient was already tracheotomised while on ventilator and was in M5 neurological status receiving sedation and thus could not have talked or communicated with anyone. The interpretation of the complainants about the bullet wound turning numb and sore was a medical condition of skin changing in resolving the hematoma. At this time, the patient was in no condition for discharge as further treatment was necessary. In the meantime, the patient was having decreasing trend of TLC despite antibiotic cover and increased infection required neurological consultation also. He further submitted that on 12.11.2010, a Contrast Enhanced CT (CECT) was done to rule out intra- abdominal collection, which showed Grade-C pancreatitis. A higher generation and stronger antibiotic was started. Pulmonary consultation was also taken and suggested treatment was followed. Due to the massive nature of the injury in the abdomen, the patient had overwhelming sepsis in the abdominal cavity initially due to E-coli and klebseilla (bacteria) and later on due to acinetobacter and candida infections, which was being duly treated. The central line was also changed when required. He further submitted that on 18.11.2010, the patient was observed to have mild right pleural effusion (fluid collection around the lungs) with underlying consolidation. On 21.11.2010, the patient had hypotension (decrease in blood pressure) for which fluids were given, to which he responded, while continuing to be on ventilator. The patient succumbed to his injuries on 22.11.2010. He further submitted that due to contamination in the body from the injury, resulting in severe intra-abdominal infection, which had led to systemic sepsis and chest infection, the patient could not recover. These infections were known cause of morbidity and mortality in such a case. He further submitted that the treatment strategy for patients with gunshot injuries mostly depends on the hemodynamic status of the patient. The first priority, in such cases, is to control the bleeding, perform other minimal procedures, effect temporary closure and continue resuscitation and correct hematological and bio-chemical disorders. He further submitted that in the case of the patient, there was an urgent need to control the intra- abdominal contamination. He further submitted that the treatment given to the patient was the standard treatment in such like situations, and there was no departure from the traditional method of treatment. There was no nexus between procedure adopted for treatment and the death of the patient. He further submitted that no fault or medical negligence, even remotely, could be attributed to the Opposite Parties. He further submitted that the well established and recognized standard procedures only were followed in the treatment given to the patient. He further submitted that the order of the District Forum being legal and valid, is liable to be upheld.

25. During the course of arguments, the counsel for respondents/Opposite Party No.1, 4 to 6 submitted that he adopted the arguments of the Counsel for Opposite Parties No.2 and 3.

26. In Kusum Sharma & Others Vs. Batra Hospital & Medical Research Centre & Others, 2010(2) Civil Court Cases 015 (S.C.), Hon’ble Supreme Court observed as under:-

'I. Negligence is the breach of a duty exercised 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.

II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.

III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.

IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.

VI. xxxxx xxxxx xxxxx

VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.

VIII. xxxxx xxxxx xxxxx

IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.

X. xxxxx xxxxx xxxxx

XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.'

27. In the case of Jacob Mathew (Dr.) Vs. State of Punjab & Anr.-III (2005) CPJ 9 (SC), it was held by the Apex Court, that a physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of the surgery would invariably be beneficial much less to the extent of 100% for the person operated upon. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the reasonable skill, in that branch of profession, which he is practising and while undertaking the performance of the task entrusted to him, he would be exercising his skill, with reasonable competence.

28. In Laxman Balakrishan Joshi Vs. Trimbak Bapu Godbole and Anr.-AIR 1969 SC 128, the Apex Court laid down the criteria for determination of the professional duty of a medical man. The Hon’ble Supreme Court held that a person who holds himself out ready to give medical advice, and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, when consulted by a patient, owes himself certain duties viz. a duty to care, in deciding whether, to undertake the case, in deciding what treatment to give or duty of care, in administration of that treatment.

29. In applying the principles, mentioned above, to the facts of the present case, it is to be seen, whether the respondents/Opposite Parties No.1 to 3 were deficient in giving treatment to the deceased and, as to whether, they were negligent to that effect.

30. After considering the rival contentions of the authorized representative of the appellants, Counsel for the Opposite Parties, and on going through the entire record of the case, we are of the considered view that the order of the District Forum, deserved to be upheld for the reasons recorded hereunder:-

a) It is highly pertinent and significant to submit here that as mentioned in para 4 of the written statement, Opposite Party No.2 is a Professor of Surgery, heading Unit-III of General Surgery and Vascular Surgery and has been working in Opposite Party No.1 hospital since year 1983. He is also the Chief-in-Charge of Liver Transplant Surgery and Chief of Vascular Surgery in Opposite Party No.1-Hospital. Opposite Party No.2 has been training and teaching the surgeons for over 25 years and most of the surgeons trained under him are working in respectable hospitals, institutes and private hospitals like Fortis, Medanta, AIIMS. Besides this, Opposite Party No.2 contributed to many National And International Medical Journals and is also a member of various surgical societies. The Govt. of India –Ministry of Health gave the responsibility to Opposite Party No.2 to help in establishing new centres of liver transplant in India. It can be further noted that the Opposite Party No.2 came himself and operated on a day, which was not his call day, when the patient was referred to Opposite Party No.1-Hospital.

b) The perusal of the medical record (Annexure-RA) at page Nos.147 to 153 of the District Forum file shows that abdominal surgery was performed by a team of Senior Surgeons consisting of Dr.A.Behera, Opposite Party No.2(Professor), Dr.Harshal (Asstt. Professor of Surgery), Dr.Piyush Sinha (Senor Resident Surgery), Opposite Party No.3 (Senior Resident Surgery) and Dr. Vikas (Resident Surgery). Further on opening abdomen i.e. laprotomy, it was found from the report of operation of the patient(Annexure-RA) at page 153 of the District Forum file that there was 1 ltr. of biliohemorrhagic fluid (bile, enteric content and blood), 1 x 1 cm laceration/ perforation in the greater omentum, approx. 6 sq. cm ( 3 x 2 cm ) laceration and injury to the 2nd and 3rd part of duodenum distal to the ampulla of the bile duct, laceration/injury to the pancreatic head (approx 1 x 1 cm), hematoma at the lower pole of right kidney and perinephric hematoma, retroperitoneal hematoma in right side and rest of viscera was assessed to be normal.

c) It is evident from the record (Annexure-RA) at page No.153 of the District Forum file that the operating team of the surgeons assessed the case of the patient to be of a severe degree of combined pancreatico duodenul injury (Grade IV duodenul injury and Grade II pancreatic injury) with contamination of peritoneal space (abdominal cavity) with intestinal contents, bile and pancreatic secretion mixed with blood present in abdominal cavity.

d) The team of surgeons after meticulous dissection, as per the established norms excluded any injury to major vessels like IVC (inferior vena cava). Due to hematoma within psoas (muscle in the back) and erector spinaemuscle, they had become hard and metallic object/bullet was not felt from within the abdominal cavity, which as per the CT scan was lodged in the soft tissue of the back.

e) In our considered view, the team of expert doctors/surgeons going by established norms of treatment as prescribed at page 9 of the literature of Injuries to Pancreas and Duodenum as brought by Dr.Gregory F.Furkovich, MD, FACS did not explore tract of the projectile at the first instance since pancreatic and duodenal injuires are most commonly caused by penetrating wounds and occur in association with multiple other intra abdominal injuries. Hemorrhage control and contamination control should be primary task in dealing with pancreatic and duodenal injuries.. Since the bullet lodged itself away from the major vessels and vital structures in the soft tissue and there was overlying hematoma in the retroperitonum, the removal of the bullet would result in more bleeding in the retroperitonum due to release of tamponade (pressure) within the tissues. Fresh surgical dissection by the surgeons would result in exposing more tissues to contamination in the abdomen as well. The bullet was left undisturbed in the soft tissues, as it itself had minimal chance to cause infection and complication. The immediate concern of Opposite Parties No.2 and 3 alongwith other surgeons was to save the patient from a very serious nature of combined pancreatico duodenal and retroperitonum injury which had bled internally. To leave the bullet in soft tissue was the professional decision of the operating team, which allegedly was informed to the relatives of the patient and the said fact had not been controverted by the complainants by filing any rejoinder to the written statement. The complainants miserably failed to produce the medical literature contrary to the procedure adopted by Opposite Parties No.2 and 3 to prove that the line of treatment given to the patient was against the established medical ethics and norms.

f) In our considered view, the medical negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession as has been held in Kusum Sharma and Others’s case (supra).

g) The injury was of very grave nature and there was always a risk of major abdominal infection and systemic sepsis and to prevent the same, a drain was put in retroperitonum in the right side in the area of dissection and another drain was put around the anastomosis. Opposite Parties No.2 and 3 not only informed the nature of injury and possible outcome to the relatives of the patient, but also about the lodged bullet in the subcutaneous plane, which was to be tackled later if and when required. It is evident from the CT Scan (Annexure-RA) at page 414 of the District Forum file that the bullet was stranded in the soft tissue and it could not be felt from outside initially. It was expected that the organized clot around the bullet would liquefy and it could be extracted later from the skin side in the back (after local bleeding arrested and settled). In our considered view it was the right decision of the team of surgeons that in trauma, more damaged and life threatening aspects get priority and bullets could be left behind in soft tissues to be tackled later, if only necessary.

h) On the night intervening 09/10-11.2010, the bullet could be felt in subcutaneous plane as tense edema and clotting had settled and small incision was given in the back region and the bullet was extracted by Dr.Nusrath and handed over Sr. Medical Officer (SMO) as per the requirement of procedure in the medico legal cases. The operation was minor and was done by bedside only with a small incision. We are of the considered view that the averments of the complainants that the bullet wound was turning colour and was turning numb and sore was their interpretation of a medical condition of petechiae (skin changes in resolving hematoma). The patient was in no condition for discharge and at no point a discharge was planned as further treatment was necessary. It will not be out of place to mention here that the patient developed chest infection and lung crepitation continued. The blood culture of the patient was positive for E-coli Centre IV line culture grew yeast and antifungal injection Fluconazole was started. The presence of E-coli suggested that Intra-abdominal infections were growing. The patient continued to have fever and chest infection on 11.11.2010 and 12.11.2010. The Contrast Enhanced CT(CECT) showed that the patient had developed grade C pancreatitis. The patient further continued to have high grade fever till 13.11.2010. The abdominal drain fluid culture showed pseudomonas and acinetobacter. T-tube and retroperitonum drains also showed growth of micro organism acinetobacter. Chest X-ray showed bilateral fluffy infiltrates on chest fields, suggestive of infection. Further the patient had developed overwhelming sepsis in the abdominal cavity initially due to E-coli and Klebseilla (bacteria) and later on due to acinetobacter and candida infections, which was being duly treated.

i) Further on 18.11.2010, the patient developed fluid collection around the lungs. On 21.11.2010, the patient had decreased in blood pressure, for which fluids were given and patient responded. On 21.11.2010 the patient had chest crepitation, decreased air entry and continued to be on ventilator. Further due to contamination from the inju

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ry, the patient developed severe intra-abdominal infection which led to systemic sepsis and chest infection. Ultimately, the patient succumbed to his injuries on 22.11.2010. The mortality from pancreato duodenul injuries was in the order of 25-40%. Further, the morbidity was quite high and death usually resulted from multisystem organ failure. j) Keeping in view the foregoing treatment given by the treating doctors/team of surgeons, we are of the considered view that the complainants were laboring under mistaken belief that had the bullet been removed at the first instance, the toxicity from the bullet ingredients would not have caused death of the patient. In our considered opinion, Opposite Parties No.2 and 3 had adopted the well established expected treatment strategy for the patient with gunshot injury to the torso (abdomen) which mostly depends upon the hemodynamic status of the patient. The patients who are hemodynamically unstable or show sign of peritonitis require immediate operative measure like laprotomy. Opposite Parties No.2 and 3 was right in observing that the first priority was to control the bleeding, perform other minimal procedures, effect temporary closure, continue resuscitation and correct hematological and bio-chemical disorder. Opposite Parties No.2 and 3 were right in observing that in the present case, there was urgent need to control the intra-abdominal contamination, hence the surgery was chosen to be performed against removing the bullet in the first instance. Since Opposite Parties No.2 and 3 treated the patient with utmost due care and caution and the standard line of treatment given in such like situation and there was no departure from traditional method of treatment. From the medical evidence on record, it is proved that there was no nexus between the procedure adopted for treatment and the death of the patient nor the complainants have led any evidence contrary to the same. In the instant case, no fault or medical negligence even remotely could be attributed on the part of the Opposite Parties No.2 and 3, since they have performed their duties to the best of their ability after observing due care and caution and as such they could not be held guilty of negligence by any stretch of imagination. In Kusum Sharma and other’s case (supra), the Hon’ble Apex Court held that the doctors in complicated cases have to take chance even if the rate of survival is low. In Jacob Mathew’s case (supra) it was aptly observed by the Hon’ble Supreme Court that a surgeon with shaky hands under fear of legal action cannot perform a successful operation and quivering physician cannot administer the end dose of medicine to his patient. k) In Martin F.D.’Souza Vs. Mohd. Ishfaq, 2009 CTJ 352 (Supreme Court) (CP), it was held that sometimes despite the best efforts and treatment, the doctor fails. That does not mean that the doctor/surgeon must be held to be guilty of medical negligence. It was further held that 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 conduct fell below that of the standards of a reasonably competent practitioner in his field. l) In our opinion, the law is a watchdog and not a bloodhound and as long as doctors do the duty with reasonable care, as in the instant case, they will not be held liable even if their treatment was unsuccessful. Keeping in view the position of law regarding the medical negligence and carelessness, the complainants have failed to show that Opposite Parties No.2 and 3 were guilty of medical negligence and carelessness in performing the surgery on the patient without removing the bullet first. It is unfortunate that Sh.Ravinder Singh Pandher died on 22.11.2010 due to contamination from the injury, resulting in severe intra abdominal infection, which led to systemic sepsis and chest infection after about 20 days of the surgery. 31. In view of the foregoing discussion, the District Forum was right in holding that the decision of retention of the bullet within the muscular tissues to be dealt with later, at a better moment, was not the cause of death of the deceased. In fact, the cause of death was the injury to the duodenum and pancreas and the resultant sepsis and spread of infection despite adequate surgery and treatment. Hence, the order passed by the District Forum, being based on correct appreciation of evidence and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission. 32. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, with no order as to costs. The order of the District Forum is upheld. 33. Certified Copies of this order be sent to the parties, free of charge. 34. The file be consigned to Record Room, after completion.
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