MSK Jaiswal President
Opposite parties in CC No.96/2008 on the file of District Consumer Forum, Rangareddy preferred this appeal feeling aggrieved by the orders dated 10.07.2013 directing them to pay an amount of Rs. 5,00,000/- jointly and severally towards compensation to the Complainant besides paying Rs. 10,000/- as costs of the proceeding, granting time of (30) days for compliance and on failure, to pay interest @ 12% per annum on the compensation amount from the due date until realization.
2. For the sake of convenience, the parties are referred to as arrayed in the complaint.
3. The case of the Complainant, in brief, is that as he suffered pain in abdomen, he approached Apollo Emergency Hospital at Malakpet for consultation on 14.06.2007, where the duty doctors took his ECG and without informing the cause of pain, advised to undergo ultra sound scanning and sent him to Apollo Hospitals, Jubilee Hills branch, Hyderabad where Complainant underwent ultrasound scanning test. However, report was not furnished but informed that the same will be sent to their Malakpet hospital.
4. Thereafter, one of the personnel of Jubilee Hills Hospital brought the report without the photo film and the doctor at Malakpet hospital advised to join immediately for a surgery even without informing the cause of pain frightening him and sent to join at DRDO hospital, during night hours. Accordingly, the Complainant joined on 14.06.2007 as an inpatient and was kept idle in Intensive Care Unit for 3 days, which is nothing but to extract money. He was forced to undergo x-rays, bloods tests, ECG, etc., even then the cause was not revealed and upon persistent demands, it was informed that he was suffering from "Gal Bladders". On 18.06.2007, the Opposite party No.2 conducted surgery in hasty and negligent manner without examining the photo film of ultra sound scanning and without proper diagnosis. Post-surgery, the Complainant experienced severe pain on the left side of the abdomen. Upon informing the same to the doctors, they failed to respond, however, they used to send the Complainant to ICU without any necessity making the Complainant to suffer by giving pain killer injections.
5. Strangely, a Cardiologist started examining the Complainant even though no such problem was reported and went on with continued treatment and have tried enema, inserted some foreign elements in his anus and employed all kinds of higher antibiotics on him. While these unnecessary things were going on, the stomach of Complainant swelled to a huge extent and he suffered great pain, during which period, he was again sent to Apollo Hospital, Hyderguda for ultra sound scanning on 23.06.2007 and brought back to DRDO hospital. Again, he was kept in ICU for one day instead of taking steps to reduce pain. As he was unable to tolerate the pain, he came out of the hospital for second opinion on 24.06.2017 by which time, the Opposite party No.1 received Rs. 74,000/ - apart from Rs. 30,000/- incurred by the Complainant.
6. Thereafter, Complainant visited Dr.P.Shravan Kumar, MD, DM (Gastroenterologist) and after conducting preliminary tests, he advised to undergo CT scan test on his abdomen and also to take x-rays. As per his advice, Complainant took x-ray and underwent CT scan. Thereafter, he was informed that the Opposite parties conducted surgery in most reckless manner resulting in pain and swelling. On advice, he was admitted in Asian Institute of Gastroenterologist on 16.07.2007 where the doctors diagnosed the problem as "post-operative biliary leak (cystic duct stump)". The doctors said to have performed endoscopic sphincterotomy and double pigtail internal biliary stent was inserted on 17.07.2007 and rectified the mistakes committed by Opposite party No.2 and was discharged on 20.07.2007. Thereafter, the Complainant recovered quickly.
7. Thus, because of negligence on the part of the Opposite parties in treating the Complainant, he was compelled to incur Rs. 50,000/- to Rs. 60,000/- for post-operative treatment and suffered agony and pain. He got issued notice on 10.12.2007, which the Opposite parties acknowledged but gave evasive reply. Hence, the complaint with a prayer to direct the Opposite parties to pay Rs. 10,00,000/- jointly and severally towards compensation with interest @ 12% p.a. from 10.12.2007 till realisation and Rs. 50,000/- towards expenditure incurred by him for correcting the post-operative defects.
8. Opposite parties filed written version denying all the averments made by Complainant to be false and incorrect admitting approach of Complainant to their emergency clinic at Malakpet on 13.06.2007 with severe pain in abdomen on right side. On examination, they advised for ultra sound scanning which revealed multiple GB stones. As ECG showed some changes, he was transferred to Apollo DRDO Hospital for cardiologist consultation wherein he was diagnosed to be suffering from acute calculs cholecystitis. Complainant and his attendants were informed of the same and necessity for surgery and surgery was carried-out on 18.06.2007. Post operative period was uneventful and Complainant was discharged in stable condition with necessary medical advice.
9. As Complainant had cardiac problem earlier and as ECG showed variations, the duty doctor at Apollo Emergency Clinic at Malakpet advised to go to Opposite party No. 1. The report is drawn basing on the film, hence, question of not sending the film does not arise. The cause of pain was due to gall bladder stones. It is false to state that unnecessary tests were conducted and was kept in ICU. Complainant was monitored properly and they took every care and caution. As Complainant had CAD problem earlier, he was admitted under a Cardiologist and medicines were administered. The stomach of Complainant was swelled and suffered great pain due to abdominal distension which was mild. As his condition was stable, he was discharged on 24.06.2007 with necessary medical advice.
10. The Complainant was charged as per the rates in vogue at the hospital. They are not aware of treatment undergone by Complainant elsewhere. On 29.06.2007 when sutures were removed, Complainant did 'not complain of pain or problem at that time. Thereafter, the Complainant did not turn-up to their hospital. At any rate, the post-operative biliary leak (cystic duct stump), which the Complainant got treated at another hospital is a known complication of surgery conducted by Opposite party No.2. Therefore, no negligence can be attributed against them. Hence, prayed to dismiss the complaint.
11. During the course of enquiry before the District Forum, in order to prove his case, the Complainant filed his affidavit evidence as PW1 and the documents Ex.A1 to A16 and also got filed the affidavit evidence of Dr.Shravan Kumar as PW2 and that of Dr.G.V.Rao as PW3 and the documents Ex.C1 to C14. On behalf of Opposite parties, none were examined.
12. The District Forum after considering the material available on record, allowed the complaint, as stated supra, at paragraph No. 1.
13. Aggrieved by the above said orders, the Appellants/Opposite parties preferred the present appeal contending that the forum below committed error in overlooking the settled legal proposition and arrived at irrelevant findings observing as 'unwanted tests'. The forum below has digressed from the issue raised by them and formulated its own theory to hold that the Appellants were grossly negligent. Without there being any expert evidence or literature, liability is fastened on the Appellants. It totally lost sight of the difference between bile leak and bile injury. Hence, prayed to allow the appeal setting aside the orders impugned.
14. The point that arises for consideration is whether the impugned order as passed by the District Forum suffers from any error or irregularity or whether it is liable to be set aside, modified or interfered with, in any manner? To what relief ?
15. The admitted case of the Appellants/Opposite parties is that the Respondent/Complainant approached the hospital with some complication on 13.06.2007 and after initial examination, he was advised to undergo surgery on 18.06.2007. The surgery was performed which was uneventful and the complainant was discharged on 24.06.2007. Subsequently, on 29.06.2007, the Complainant visited the Opposite parties for removal of sutures which was also uneventful. According to the Appellants/Opposite parties, even at the time sutures were removed, the Respondent/Complainant did not make any complaint about any complications at the place where the surgery was performed.
16. Subsequent to 29.06.2007, the Complainant did not approach the Opposite parties at any point of time. However, according to the Complainant, about 15 days thereafter i.e., on 13.07.2007, the Respondent/Complainant approached Dr.Shravan Kumar who referred him to Asian Institute of Gastroenterology and he was treated by Dr.Shravan Kumar and G.Venkateswar Rao who were examined as PW2 and PW3 respectively. Dr.Shravan Kumar initially suspected the Complainant suffered with bile duct injury with bile leak with biliary leak (cystic dump stump) collection, however, the Respondent was subjected to Endoscopic Retrograde Cholangio Pamcreticography (ERCP).
17. The report was obtained and nothing was found and as per the evidence of PW2 and PW3, the said report does not reveal that the Respondent was having any bile duct injury.
18. On the basis of the above, the learned counsel appearing for the Appellants/Opposite parties submits that the Respondent/Complainant did not approached the Appellants/Opposite parties subsequent to removal of sutures making any complaint but visited Dr.Shravan Kumar, which do not in any way show that it is any negligence of the Opposite parties that has resulted in any kind of pain and suffering to the Respondent/Complainant.
19. The learned counsel appearing for the Appellants having taken me through the evidence of PW2 and PW3 and medical literature in respect of her contention submits that by any stretch of imagination, can it be said that the Respondent/Complainant was suffering with any complication which have directly related to the surgery that has been performed by the Opposite parties.
20. The factum of the diagnosis made by the 2nd Opposite party that Complainant had acute calculus cholecystitis is not under dispute nor was the competence of the 2nd Opposite party. Line of treatment adopted by 2nd Opposite party is also not in dispute. No contra evidence has been placed by the Complainant with regard to the stand taken by Opposite parties in their written version and also in the evidence affidavit. Per contra, the evidence let-in by the Complainant himself clinches that there was no negligence on the part of the Opposite parties.
21. The District Forum, primarily, relied on the evidence given by Dr.Shravan Kumar (PW1) to conclude that there has been a bile duct injury. In this backdrop, it has to be noticed that PW1 suspects the patient to have had a post-operative bile duct injury with bile leak with bilious collection. He admits that to ascertain the bile duct injury, the confirmatory test is ERCP. It is also a matter of record that PW1 did not base his evidence/findings based on the ERCP report but only suspected and assumed. ERCP test was conducted at Asian Institute of Gastroenterology when the same was suggested by Dr.G.Venkata Rao. Dr.Venkata Rao was examined as PW2. ERCP report done on the Complainant is marked as Ex.C10. Dr.G.Vekata Rao, in his deposition, stated "The patient approached me with the complication of Post Cholecystomy Bile leak, for which he was evaluated and the site of the leak was confirmed to be from the cystic duct for which he underwent ERCP and scenting along with drainage of the fluid in the abdomen." In the cross-examination, Dr.G.Venkata Rao categorically stated that "ft is true that, Ex.C-10 is the ERCP report. The said report does not reflect or show any bile duct injury."
22. Thus, the entire edifice to hold the appellants guilty of medical negligence is based on the testimony of PW1 and the District Foru
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m failed to appreciate the ERCP report, which is the conclusive report to identify the bile duct injury and without any reasons, discarded the same and also the evidence of PW2. In the absence of the ERCP report suggesting bile duct injury, there is no other basis to hold that the Complainant has suffered bile duct injury. The District Forum did not notice the difference between the bile duct injury and the bile duct leak. While the former can be an outcome of negligence, the latter is a complication of the surgery conducted on the Complainant. As evident from the record, the Appellants filed medical literature along with the written arguments before the District Forum, in support of their assertion that the bile leak is a known complication. But the same has not been looked into by the District Forum and it was observed that no medical literature was filed, which is contrary to the record. 23. For the aforesaid reasons, coupled with the evidence let-in by both sides and the literature brought on record, we have no hesitation to hold that the orders impugned are erroneous and without appreciation of material on record and liable to be set aside. Accordingly, we allow the appeal and set aside the orders of the Forum below. 24. In the result, the appeal is allowed by setting aside the orders impugned but in the circumstances, no costs.