Narendra Kawde, Member

[1] Complainant [hereinafter to be referred to as ‘patient’] is an employee working in Public Health Dept. of the Govt. of Maharashatra at Nagpur. Opponent Dr.Sanjay Gadekar is a laparoscopic surgeon located at Nagpur. Both parties to the complaint though residing at Nagpur, complaint was filed before the principal bench at this Commission at Mumbai. Complainant insisted hearing of this consumer complaint finally by the Bench at Mumbai since it was in advance stage. Opponent doctor himself remained present for final hearing and consented for hearing at Principal Bench at Mumbai, case was finally heard.

[2] Case in brief as treated by complainant is that-

Complainant developed pain in stomach and later on with investigations diagnosed with stones in gall bladder as per the diagnostic test carried at Govt.Medical Hospital at Nagpur [in short ‘GMC’]. Since facility of laparoscopic surgery was not available at the Govt. medical hospital, relying on the advice of a colleague approached the opponent doctor for consultation and carrying out laparoscopic surgery to remove stones in gall bladder as the patient intended to admit and submit herself to the laparoscopic procedure for removal of the gall bladder stones. On going through patient’s test report and GMC, opponent decided to carry out the procedure for removal of gall bladder stones. Patient deposited Rs.11,000/- on advice and obtained the receipt. Opponent obtained the consent of the patient and later on the husband of the patient on dotted line on the blank form and carried out ‘open Cholecystostomy’ on 17/01/2001. The patient was treated for post-operative in the hospital of the opponent doctor and finally discharged on 09/03/2001.

[3] It is alleged that patient was never cured finally and developed complications as yellowish fluid was oozing out from the hole of stomach where the drain was coming out through pipes. Complainant as advised dutifully followed up with the opponent for post-operative healing. However, no relief whatsoever as expected was in the offing. Patient was restless and therefore again approached the Govt.Medical College, Nagpur as outdoor patient on 10/04/2001 and it was noticed that patient developed ‘deep jaundice’ in post-operative period. Complainant thereafter approached Dr.S.Adhav for proper course of treatment. However, in the Govt.Medical Hospital, no prescription was advised and instead patient was advised to approach to the specialist doctor either at Hyderbad or Mumbai. In a precarious condition, the complainant was admitted at Dr.Shrikhande’s clinic at Mumbai and major surgery on 21/04/2001 for end-to-side jejuno-jejunostomy was performed in two layers to address the post-operative complications emanated due alleged negligence of the opponent doctor. At Dr.Shrikhande’s clinic in Mumbai, Dr.Anand Nande carried out major surgery lasting at about 8 and half hours to remove foleys drain and subhetic drain to restore free flow of bile into intestine. Patient was recovered uneventfully and discharged on 30/04/2011. In the process complainant underwent mental trauma as she has to look after her one and half year old child and incurred huge expenses. As against the intention of the patient to undergo a laparoscopic surgery for removal of gall bladder stone, opponent carried out the ‘Open Cholecystostomy’ i.e.removing the gall bladder without explaining the consequences as complainant never intended to go for removal of gall bladder. Opponent failed to explain the nature & usefulness of surgery and post-operative complications. The consumer complaint has been filed alleging deficiency of service due to medical negligence against the opponent doctor thereby claiming compensation of Rs.8,50,000/- in lumpsum with penal action against opponent.

[4] Opponent appeared by filing detailed written version and denied of any negligence on his part in treating and operating the patient. According to the opponent, patient was diagnosed with cholelithiasis, as case of gall bladder stones on the basis of clinical examination and ultra-sonography of abdomen. Patient and her husband were explained about two types of surgeries for removal of gall bladder stone namely, - (A) open surgery and (B) Laparoscopic surgery and rates were also quoted as Rs.10,000/- and Rs.15,000/- respectively for carrying out surgical procedure. Complainant chose to go for open surgery and deposited an amount of Rs.11,000/-. Patient was properly looked after in the post-operative period. There was ‘peri catheteric lek of the bile’ which was properly managed by the opponent. Drain tube was removed as there was negligible drainage. Post-operative sonography report was reviewed which confirms absence of gall bladder. Only after full satisfaction of the opponent, patient was discharged. Opponent denied his role leading to co-lateral damage during the ‘Open Cholecystostomy’ procedure which necessitated major surgery at Dr.Shirkhande’s Clinic in Mumbai to restore bile movement in intestine.

[5] Mr.Yuvraj Khobragade, learned advocate of the complainant during the course of advancing his arguments invited our attention to the diagnostic test reports carried out at Govt.Medical Hospital at Nagpur comprising presence of multiple (3) small stones in gall bladder of the patient. Patient was diagnosed with ‘cholelithiasis’. Patient very much wanted to under go laparoscopic surgery for removal of the stones. However, the said facility at that point of time was not available in Govt.Medical Hospital, therefore, patient approached the opponent who is laparoscopic surgeon. No further investigations were carried out by the opponent and it was decided to proceed to remove the gall bladder stones on the basis of the report of the Govt.Medical College. [G.M.C.]. Required consideration of Rs.11,000/- was paid to the opponent. Initially consent was obtained of the patient on blank printed format. However, without explaining the nature of the surgery, its usefulness and the long term benefit and or side-effects, opponent carried ‘open Cheoleststestomy’. The consent form available in the complaint compilation does not indicate any explanation about the consequences of the procedure to be carried out. Patient was facing severe complications with development of deep jaundice as no procedure was carried out by the opponent failed to ensure restoration of flow of bile into the intestine. This folly of the opponent warranted further major surgery that too at Mumbai by the expert. Opponent ought to have thought of the intentions of the patient seeking relief from the acute pain emanating due to presence of stones in gall bladder. Patient was narrowly saved due to second surgery from the horrifying effect of deep jaundice which was not curable except otherwise carrying out the surgery for restoring the free flow of bile into intestine. Main grievance of the complainant is that though the consent was obtained on printed blank dotted line form but the opponent never explained nature of surgery, consequences and usefulness. The learned advocate relied on the authority of the Hon.Supreme Court in the matter of – Samira Kohli vs. Dr.Prabha Manchanda & anr. (2008) 2 SCC 1 for real and valid consent.

[6] Learned Advocate Mr.Anand Patwardhan pleading on behalf of the opponent submitted that the opponent is not at fault as the nature of two types of surgeries 1.Open surgery and 2.laparoscopic surgery and charges therefore explained to the patient. Complainant opted for open surgery by paying an amount of Rs.11,000/- as against the charges of Rs.15,000/- meant for laparoscopic surgery. Accordingly open surgery for removal of gall bladder was planned and performed since it was a confirmed case of cholelithiasis which means presence of multiple small stones in gall bladder as per the pathology report of the Govt.Medical College, Nagpur. As regards the consent, it is submitted that it was validly obtained not only from the patient but also husband of the patient. The complainant was admitted to the opponent’s hospital on 16/02/2001, operated for removal gall bladder on 17/01/2001 and thereafter discharged on 09/03/2001. Operation went uneventful and since the scar was dried up, therefore the patient was discharged. Proper follow-up was done Post-diagnostic report shown absence of gall bladder after the surgery was carried out. Opponent is at no fault for alleged second surgery carried out at Mumbai to restore free flow of bile in to intestine.

[7] We have perused the record placed before us and documents relied upon by the parties. It is not in dispute that the opponent carried out open cholecystostomy for removal of the gall bladder as multiple stones were present therein. Amount paid by the complainant is supported by receipts. Only the bone of contention is opponent allegedly failed to explain the procedure and consequences of surgery. On going through carefully the consent form obtained by the opponent, it is noticed that consent form is a printed one. Complainant and the her husband both signed the consent form for carrying out laparoctomy-open cholecystectomy. Contentions of the complainant is that her consent was taken on the printed format, consent of her husband was obtained belatedly at about 2.30 p.m. during the time of operation when the actual operation was carried out. Nowhere, there is any document explaining the surgical procedure and its consequences is available on record which opponent ought to have brought before us. Hon.Apex Court in the matter– Samira Kohli vs. Dr.Prabha Manchanda & Anr., (2008) 2 SCC 1 has observed that Doctor has to obtain a valid consent before commencing the treatment which includes surgery. Consent so obtained should be real and valid, which means that; the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure. Passing on adequate information, cast an obligation on the doctor to disclose:-

a) Nature and procedure of the treatment and its purpose, benefits and effect;

b) Alternatives if any available;

c) An outline, of the substantial risks; and

d) Adverse consequences of refusing treatment.

[8] No documentary evidence is available led by opponent to establish that these directions were followed in letter or spirit. Moreover, the opponent doctor failed to establish as to whether he has followed the standard protocol of surgery and treatment and why free flow of bile into intestine was not restored after removing gall bladder. It is obvious that for want of free flow of bile into intestine lever enzymes have gone up alarmingly high. Mere denial of the allegations of medical negligence would not absolve the opponent from the duty he owes to the patient to explain surgical procedure and adoption of standard protocol of treatment. There is no denial of the fact that the patient was diagnosed with deep jaundice in the post-operative period which could not be treated at Govt.Medical Hospital, Nagpur. Complainant was forced to get her admitted in the clinic of Dr.Shrikhande at Mumbai where second surgery was carried out as the patient was diagnosed with the history of 'latrogenic bile duct injury'. The first procedure the complainant was required to undergo at Bhatia Hospital was PTBD as it was revealed total occlusion at CHD with small leak in gall bladder fossa and large size left duct. This was performed on 17/04/2001 at Bhatia General Hospital, Mumbai. On 21/04/2001, end-to-side jejuno-jejunostomy was perfomed in two layers by Dr.Anand Nande at Dr.Shrikhande’s Clinic. Thereafter, on 30/04/2001, PTC Cholangiogralm was done which revealed ‘free flow of bile in intestine’. The patient was recovered and discharged on 30/04/2001. Opponent doctor failed to appreciate and explain post-operative likely complications. As a prudent doctor, he owes a duty to take care of the patient by explaining the nature and procedure of surgery, its purpose, benefit and effect, alternative, if any, available to planned procedure, substantial risk and adverse consequences on refusing the treatment. Opponent except by general denial did not adduce any documentary evidence to satisfy that he adopted proper course in explaining to the patient to treat consent so obtained was real and valid and whether the patient was given in advance adequate information concerning the nature and procedure of the treatment. Opponent failed to carry out full investigation to confirm the diagnosis and exclude the presence of stone in the common bile duct, a stone in systic duct stump or operative damage to the bilary tree by carrying out MRCP or ERCP before performing cholecystostomy though relied on source material brought on record by the opponent himself. Opponent even failed to address lever profile test carried out in the month April 2001 after discharge of the patient from his hospital. The result of the enzymes in lever profile test have gone alarmingly high which warranted complainant patient to undergo further surgery to ensure free flow of bile into intestine. Patient narrowly saved from the effect deep jaundice. On two counts, the opponent prima-facie found to be negligent-firstly omission to restore free flow of bile movement post operatively and secondly not following the standard guidelines as laid down by the Hon.Supreme Court in the matter of Sameera Kohli vs. Dr.Prabha Manchanda and anr. (2008) 2 SCC 1, about real and valid consent of the complainant/patient. In view of these evident lapses, no separate expert evidence whatsoever is required to be led by the complainant.

[9] Complainant rightly relied on the following authorities to strengthen her claim:-

i. III (2013) CPJ 142 (NC) – Sunil Bhandari (Dr.) vs. Pooja Kori & anr.

ii. IV (2014) CPJ 246 (NC) – J.D.Bagree Hospital & Anr. Vs. Vandana Goyal

iii. I (2015) CPJ 79 (NC) – Kalpana Vs. Dr.K.Ramalakshmi & Anr.

Ratio of the judgments of the all authorities is applicable in complainant’s case as the issues involved about post-operative complications resulting to second surgeries wherein the opponent doctors therein were held liable by the Hon. National Commission.

[10] Complainant relied on supporting vouchers of payment against expenses incurred right from first surgery at opponent’s hospital till the final treatment leading second surgery an

d post operative care estimated to Rs.8,50,000/-. Here at this stage, we need not consider reimbursement of expenditure by the complainant’s employor, as the consumer complaint has been filed for alleged medical negligence against the opponent who failed to exercise due care and caution nor the opponent has brought on record such details. Therefore, we do not think considering the prayer for compensation on lumsum basis would amount to undue enrichment of the complainant taking into account mental agony in undergoing second surgery and the post-operative care thereafter. [11] Having considered this case in its entirety, we are of the opinion that complainant has discharged the initial burden to prove the allegation of medical negligence leading to deficiency in service by the opponent. Therefore, the complaint deserves to be allowed and we accordingly proceed to pass the following order. ORDER 1. Consumer complaint is partly allowed. 2. Opponent is directed to pay compensation of Rs.8,50,000/- [Rs.Eight Lac Fifty Thousand only] to the complainant together with interest @9% p.a. from the date of filing of complaint i.e.31/10/2002 within 60 days from date of this order. Non-compliance shall enhance rate of interest to 12% p.a. till realization. 3. Opponent shall bear his own costs and shall pay costs quantified to Rs.25,000/- [Twenty Five Thousand only] to the complainant. 4. One set of complaint compilation be retained. Rest be returned to the complainant forthwith. 5. Certified copies of the order be furnished to the parties forthwith.