VINAY KUMAR, MEMBER
1. Mrs. S Padmavathy, wife of Lt Col. S K Rao, had preferred a consumer complaint before the A P State Consumer Disputes Redressal Commission, claiming damages for alleged medical negligence in her treatment at the Kamineni Hospital. The facts, in brief, are that the complainant had been suffering from stomach ache for sometime. After a series of investigations in different hospitals, doctors advised her to undergo the operation of cholecystectomy at an early date. This surgery involves removal of the gall bladder. It was performed on 19.8.1999 at OP hospital.
2. It was alleged that the complainant was kept in the hospital much longer due to problems following this surgery. She was also informed by OP-2 that a surgery was required to place a stent on the damaged portion of the combined bile duct(CBD) through Endoscopic Retrograde Cholangio Pancreatography (ERCP) procedure and the stent would be removed after one month, when the CBD had healed. Three attempts were made to perform the ERCP but without success. Thereafter, complainant was informed that she would have to undergo major surgery called Hepatico Jejunostomy. This surgery was performed at Nizam’s Institute of Medical Sciences (NIMS) on 5.11.1999. The case of the complainant before the State Commission was that she was made to undergo ERCP three times, due to negligence of the OPs. The requisite operation, which was eventually performed at NIMS, could have been performed at OP hospital itself as soon as the damage to the CBD was detected. For the suffering undergone and other problems resulting from the alleged deficient treatment given by the OPs, the complainant sought compensation of Rs 25 Lakhs.
3. The case of the complainant before the State Commission, was substantially dependent upon the report of Dr N Nageshwar Reddy, Consultant Gastroenterologist at Medinova Diagnostic Services, according to which the biliary system showed abrupt cut-off at the level of the CHD. In the affidavit evidence of the husband of the complainant it is alleged that the OP-2 while performing cholecystectomy, had cut the CBD of his wife. After discovering this damage, OP-2 should have converted the laparoscopic surgery process into an open surgery, to fix the damage. But this was not done and the patient was made to undergo prolonged laparoscopic surgery.
4. The State Commission has gone into details of the surgery and post operative treatment, as seen from the affidavit evidence of the OPs. Significantly, the Commission refers to be cross-examination of OP-2/Dr G Satyanarayana, in which it is admitted that the injury occurred on account of the laparoscopic surgery. But, he explained it as being the result of the problem of dense adhesions between the gall bladder and the surrounding structures and not due to any fault or misjudgment on the part of the doctor. On this point the State Commission has observed that-
'The expert witness, Dr Wasif Ali, was also cross-examined in which he submitted that even in open surgery and not just in laparoscopic surgery, there is a small risk of damage to CHD. It is stated that hepatic duct injury not being repaired during the second surgery was in accordance with standard surgical method. He submits that not doing hepatico jejunostomy at the time of the second surgery is as per medical standards and does not amount to medical negligence.'
5. The State Commission finally came to the conclusion that the OPs had followed standard surgical and medical principles in treating the patient and there was no evidence of medical negligence on their part. Accordingly, the commission dismissed the complaint.
6. The main ground raised in the appeal before us is that the State Commission failed to consider the report of Dr Nageshwar Reddy in which he had categorically stated that there is abrupt cut-off of the biliary system at CHD level with two metal clips across. According to the appellant, the Commission ought to have viewed this as evidence of gross negligence on the part of OP. It ought to have noticed that the doctor did not take proper care even after noticing the damage.
7. In response, the stand taken by OP-2 is that the entire operation had been recorded in the camera and an expert witness, called by the State Commission has examined and explained what was done. The appellant himself has not submitted any evidence to substantiate the allegation that the bile leak was caused due to the injury on the Combined Bile Duct (CBD) or the Combined Hepatic Duct (CHD) during the course of the surgery on 19.8.1999 and whether the same was not diagnosed by the OP. The complainant did not choose to file evidence of Dr Nageshwar Reddy nor did he examine him on this aspect.
8. The counsel for the appellant/complainant emphasised that the entire case relates to abrupt end of the biliary system. This, according to him, was the result of the injury caused during the surgery on 19.8.1999. The counsel pointed out that it was also admitted by OP-2/Dr Satyanarayana in his cross-examination. He further argued that it was only to repair this damage that multiple attempts at ERCP procedure were made subsequently and eventually another major surgery had become necessary to perform hepatico jejunostomy. The counsel referred to the operative findings in the discharge summary of NIMS, where this last surgery was performed. It says, 'CBD stump was found strictured up to the confluence.' He therefore argued that damage to the CBD gets confirmed from this report of NIMS.
9. The counsel for the respondents/OPs argued that it is not correct to say that the injury was caused by negligence. Such unseen injury is a known complication of laparoscopic surgery. The OP made two attempts to implant a stent but on both occasions the ERCP procedure had failed. The council emphasised that the affidavit of the independent medical expert, Dr Wazif Ali, has conclusively established before the State Commission that there was no negligence.
10. Thus, in the memorandum of appeal as well as arguments of the counsel to the appellant, considerable reliance has been placed on the reports of Medinova Diagnostic Services and the records of the Nizam's Institute of medical sciences to establish that damage was caused to the biliary system which had to be surgically repaired, later at NIMS. These are in confirmation of the fact of damage which has also been accepted in the cross-examination of OP-2. The impugned order makes a detailed reference to it.
11. According to the appellant/complainant, once damage to the CBD became clear, the operating surgeon should immediately have converted the surgical procedure into an open operation instead of continuing with the laparoscopic surgery. It is also argued that even in view of dense adhesions noticed by the OP in the surrounding structures, open surgery would have been a better option. On this issue, the State Commission has very rightly held that when two choices are clearly available to the doctor, he cannot be faulted for adopting one of them. Selecting one medical option in preference over the other, will not amount to professional negligence. Therefore, this argument of the appellant has to be rejected.
12. The appellant also alleges that the State Commission grossly erred in not accepting the complainant’s request for refereeing the record of treatment to an expert body for independent opinion. We have perused the records of the State Commission with specific reference to the need for appointment of an independent medical expert. The record shows that on 8.7.2005 a memo was filed on behalf of the OPs proposing to summon Dr. Wasif Ali, Professor and Heard of Surgery Unit No.3 in Osmania General Hospital, Hyderabad as a court witness and to depose as an expert. He was examined by the State Commission on 28.7.2005. The affidavit evidence of Dr. Wasif Ali is very brief and his conclusions are contained in the first para of the recorded evidence itself. It reads as follows:-
'I am attending the State Commission in pursuance of the Summons received by me. I have been working as a Surgical Gastroenterelogist for the last 11 years at Osmania General Hospital. I have seen the case sheet relating to the patient and I have also had an occasion to see the C.D. to know the manner in which the operation was conducted. I am of the considered opinion that the operation was performed in accordance with the prescribed medical standards. After going through the case sheet and the connected record and the CD I am of the considered opinion that there is no medical negligence on the part of the opposite party in performing the operation.'
13. During the course of the cross-examination on behalf of the Complainant, this witness has stated that from the CD relating to the patient he did not find any evidence of injury to the CHD or CBD having occurred at the time of the surgical procedure. This opinion is in direct conflict with the admission of damage coming from the cross-examination of OP-2. Dr. G. Satyanarayana.
14. It is seen from the impugned order that the State Commission had also raised the following questions and has arrived at its conclusions in relation to them-
a. Had the surgeon applied metallic clips to the hepatic duct in place of cystic duct and sheared it, thereby violating the cardinal principles of surger
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y? b. Was there a surgical cut off? Is bile leak a known complication of laparoscopic cholecystectomy? c. What is the care taken by OPs in treating this complication? Should the doctor have done hepatico jejunostomy during the time of the second operation itself? d. Were the opposite parties negligent in their treatment of the patient? 15. We feel that these questions should have been directly addressed to the expert witness for his specific opinion and thereafter an opportunity should have been allowed to the Complainant to cross-examine the expert with reference to the same. The fact that this was not done, has resulted in incomplete opinion of the expert which has been relied by the State Commission. 16. In the above background, we consider it necessary to remand the matter to the State Commission with a direction to re-examine the expert witness in keeping with the observations in this order. The complaint should thereafter be decided taking into account the evidence of the expert witness.