Case: HARNEK SINGH &amp; ORS Vs. GURMIT SINGH &amp; ORS

3. Facts as stated in the complaint filed before State Consumer Disputes Redressal Commission (hereinafter referred to as the SCDRC) are as follows. Appellant 1, the complainant, is a retired Semi-Government employee and his wife Late Mrs. Manjit Kaur, aged 47 years had been working as a Government teacher. Mrs. Manjit Kaur, the patient, developed abdominal pain for which an ultrasound examination was done and it revealed the presence of gall bladder stones. On 13.07.2004 the patient approached Respondent 1, a laparoscopic surgeon at Preet Surgical Centre & Maternity Hospital, Respondent 2. After due examinations and medical tests, Respondent recommended surgery for removing the gall bladder stones and prescribed certain tests to be carried out in advance.4. The complainant got the advised investigations done and showed the results to Respondent 1. He then asked the complainant to get yet another USG examination from a specific centre as he was not satisfied with the earlier USG dated 14.7.2004. The complainant complied with this instruction of Respondent 1 and again medical tests were done from a specific USG centre on 23.7.2004. Respondent 1 was satisfied with the results and advised the complainant to get the opinion of a cardiologist as the tests revealed the patients blood pressure to be slightly high. On 26.07.2004, Dr. Dharamvira Gandhi, the cardiologist cleared the patient for surgery.5. On the morning of 28.07.2004, Respondent 1 performed a laparoscopic cholecystectomy and placed a drain in the patients abdomen. On 29.07.2004, the patient complained of abdominal pain and distension. The drainage tube was showing a discharge of fluid which was slightly green in colour, which later on turned greenish-brown. When the complainant informed Respondent 1 about this, he was told that such fluid was expected and that is why the tube had been inserted. Respondent 1 also informed the complainant that he had reviewed the operative CD and assured that there was no indication of any injury, even in the operative video.6. On the next day, the patient became very serious and the abdominal distension and pain was compounded by difficulty in breathing. Respondent 1 reassured the complainants and started oxygen infusion to the patient and prescribed some blood tests and ultrasound examination. The request for a second opinion or referral to Rajindra Hospital, Patiala attached to Medical College was dismissed by a further assurance that the patient was in safe hands. Later that evening, Respondent 1 informed the complainants the cause of the problem was acute pancreatitis and that there was nothing wrong with the surgery. However, the complainants remained unconvinced, especially because of the dirty brown discharge coming through the drain and the persistent pain, distension and breathlessness which were indicative of some major intestinal or bile duct injury, which the staff of Respondent 1 had hinted. The complainant again requested Respondent 1 to seek another opinion or shift the patient to another hospital.7. At around 9 P.M. on 30.07.2004, Respondent 1 decided to shift the patient to Dayanand Medical College and Hospital, Ludhiana, Respondent No. 4 herein and refer the patient to Dr. Atul Mishra, Respondent No. 3 herein. Respondent 1 declined the request by the complainant to give detailed patient records and operation notes by stating that the patients condition had been adequately explained to Respondent 3. Dr. Punit Gupta was the doctor on duty when the patient was admitted. As per his assessment, there was suspicion of an iatrogenic injury to the bile duct and possibly also to the intestine, during the previous surgery. He advised an urgent abdomen CT scan to get a clearer picture. A CT scan was done and as per the report, the small and large intestines were normal. However, it revealed moderate intra-abdominal and sub-phrenic collection. Respondent 3 examined the patient and the CT scan report the next morning at 9 A.M. Since the patient was suffering from multiple ailments like pneumonia, high blood pressure and coagulopathy, immediate surgical intervention was not advised.8. On 02.08.2004, the patients condition became critical and she showed signs of colonic perforation. The bilious drain fluid became feculent and foul-smelling. On 03.08.2004, an emergency laparotomy was performed. Respondent 3 informed the complainants that there was a large collection of intestinal contents in the abdomen due to an injury to the colon and in addition to that there was also a bile duct injury, which would be repaired in a subsequent surgery. The patients condition kept deteriorating and she went into multi-organ failure including failure of the respiratory system, cardiovascular system and renal failure.9. The patient died on 11.08.2004.10. The complainant discussed the cause of death and the need for autopsy with Respondent 3, however, he was told that the patient died due to intra- operative injuries to the colon and bile duct resulting in Peritonitis, Peritoneal Collection, Septicaemia and Multi-Organ failure.Proceedings before the State Commission:11. It is in the above-referred circumstances that the complainant filed a consumer complaint before the SCDRC, Punjab on 14.02.2005, which was subsequently transferred to State Consumer Commission, U.T. Chandigarh. The complainant prayed for monetary compensation quantified at Rs. 62,85,160 from the Respondents for negligence and deficiency of services.12. Respondents 1 and 2 filed a reply stating that Respondent 1 is an experienced surgeon and has performed more than 2,500 laparoscopic operations successfully. It was explained that the patients surgery was performed with proper care, but after the surgery, she developed epigastrial pain and slight distension in the abdomen. Immediately conservative treatment was started and the patient got some relief from the same. However, on the night of 30.07.2004, the patients condition got critical, as a result of which she was referred to Respondent 4 hospital to be treated by Respondent 3.13. Respondents 3 and 4 in their reply denied the allegations of negligence and stated that the hospital provided due and proper care to the patient. It was further stated that most of the iatrogenic injuries to the bile duct during the cholecystectomy were not recognised in the operating room but were detected after a few days as biliary fistula or bile peritonitis. It was stated that the initial response of Respondent 3 was to not operate immediately as it was decided to evaluate the nature of the leak and attempt to control the fistula. Also, conducting the operation earlier was not medically advised. The operation was conducted on 03.08.2004 to tackle perforation in the large bowel.14. A reply was also filed by Dr. Dharamvir Gandhi, the cardiologist who stated that the patient was 47 years old and was referred to him by Respondent 1. It was found that she was a patient of hypothyroidism and was taking treatment for the same for the last three years. She complained of chest pain and breathlessness for which she was treated with due care. Her cardiovascular status was stable.15. Both Respondents 1 and 3 were duly cross-examined by counsel of the complainant on 06.07.2006. The complaint also cross-examined Dr. Inderjit Singh and Dr. Navdeep Singh as experts before the SCDRC.16. The SCDRC after considering the evidence and hearing both the parties, allowed the complaint and held Respondents 1 and 2 negligent and exonerated Respondents 3 and 4. Respondents 1 and 2 were directed to pay Rs. 15,44,000 jointly and severally and Rs. 10,000 as costs.17. The SCDRC found that the CT scan which was performed on 31.07.2004 showed pneumo peritoneum which meant a significant amount of free air in the abdomen outside the intestines was present which is not normally present. During laparoscopic surgery, gas is introduced into the peritoneal cavity and all the gas does not get removed at the end of the surgery. It is a known fact that this residual gas gets absorbed and does not stay in the abdomen for more than 24 hours. The only other area from where the gas can enter the peritoneal cavity is the intestines if they are ruptured at any place. The CT scan was performed three days after the laparoscopic surgery and significant air was present even after three days which is a clear sign of an intestinal injury. There was also some subphrenic abscess found below the diaphragm which has to be removed, otherwise, diaphragm movements cannot be restored. SCDRC found that it was the direct consequence of the intra-operative injury to the bile duct and colon caused by Respondent 1 during the laparoscopic cholecystectomy that later led to the death of the patient. With respect to Respondent 3, the only allegation was a delay in operating on the patient. SCDRC found that Respondent 3 could not detect any important sign of bowel perforation on 31.07.2004 or 01.08.2004 and therefore he decided against any surgical intervention at that point of time and hence there was no negligence on the part of Respondent 3.18. The complainants filed an appeal before the NCDRC. Simultaneously Respondents 1 and 2 also filed an appeal for dismissal of the Complaint.Proceedings before the MCI:19. It is necessary to mention at this stage that while the proceedings were pending before the SCDRC, the complainants also made a complaint to the Punjab State Medical Council against the professional misconduct of the Respondents, which was summarily disposed of on 13.06.2006. The complainants filed an appeal to the MCI. The MCI considered the appeal of the complainant and asked Respondents 1 and 3 to appear before the Ethics Committee. Both the Respondents submitted their detailed replies. The Ethics Committee considered the matter and held Respondent 1 medically negligent and issued a strict warning to be more careful during the procedure and to be more diligent in treating and monitoring his patients during and after the operation. Respondent 3 was exonerated as no medical negligence was proved against him.Proceedings before the NCDRC:20. Coming back to the appeal before NCDRC, it heard both the appeals together, i.e. the appeal filed by the complainants as well as Respondents 1 and 2. The NCDRC observed that the patient was operated on by Respondent 1 on 28.07.2004 and the injuries were detected after six days. The CT scan report of 31.07.2004 ruled out any evidence of injury or perforation peritonitis and therefore Respondent 1 did not ignore any signs of biliary and fecal peritonitis. Further, the complainant relied on the paramedic staff of the Respondent 2 hospital who informed him about the operative injury, it was held that there was no evidence in this regard. There was no negligence found on the part of Respondents 1 and 2.21. In the case of Respondents 3 and 4, it was found that the patient was not fit for diagnostic laparoscopy immediately since there were no signs of any obstructive lesion or proximal dilation. On 02.08.2004, there was a sudden deterioration in the patients general condition and she was then diagnosed with bowel leak with peritonitis. She was operated on 03.08.2004 to repair the colonic perforation. The patients condition started weakening and she died on 11.08.2004 due to cardiac arrest. It was held that Respondents 3 and 4 acted with due care and hence there was no negligence.22. The NCDRC by way of the impugned decision on 05.06.2020 allowed the appeal of Respondents 1 and 2 and set aside the order of the SCDRC holding that negligence was not proved by the complainants. It is from this decision that the present appeals arise.

Reasoning:
The SCDRC in its detailed decision considered the oral and documentary evidence including medical journals and concluded that Respondents 1 and 2 acted negligently in performing the operation. SCDRC also held that there is no evidence of negligence in so far as Respondents 3 and 4 are concerned.28. What we have noticed in the impugned decision of the NCDRC is that a substantive part of the decision refers only to judicial precedents on the question of medical negligence. Reference is made to the decisions in the case of Kusum Sharma & Others v. Batra Hospital & Medical Research Centre and others (Kusum Sharma & Ors. v. Batra Hospital and Medical Research Centre & Ors., (2010) 3 SCC 480) ; Jacob Mathew v. State of Punjab (Jacob Mathew v. State of Punjab & Anr. (2005) 6 SCC 1) ; Achutrao Haribhau Khodwa and others v. State of Maharashtra and others (Achutrao Haribhau Khodwa and Others v. State of Maharashtra and others (1996) 2 SCC 634) ; and S.K. Jhunjhunwala v. Dhanwanti Kaur (S.K. Jhunjhunwala v. Dhanwanti Kaur & Anr. (2019) 2 SCC 282) . Apart from the case laws on facts, the NCDRC devoted its attention substantially to the allegations against Respondent 3 who was anyway exonerated by the SCDRC. In so far as Respondent 1 is concerned, the NCDRC did not meet the specific allegations of negligence in the performance of the surgery.29. There was sufficient material indicative of large bowel perforation after the laparoscopic operation. It is true that it may not have manifested immediately in the normal course. However, there were sufficient indicators to a diligent professional, to detect and take immediate steps for restitution. Instead of examining the material that was placed on record, NCDRC seemed satisfied with raising and rejecting the plea of res ipsa loquitur and holding that it is impermissible to assume that any sensible professional would intentionally commit an act which would result in an injury to the patient. In these proceedings for damages due to professional negligence, the question of intention does not arise. Unfortunately, the NCDRC did not even refer to the report of the MCI. In fact, a reference to the MCI report would have been sufficient to come to the right conclusion.34. In view of the clear findings, the MCI decided to issue a strict warning to Respondent 1 to be more careful during the procedure and to be more diligent in treating and monitoring his patients during and after the operation. As against Respondent 3, the MCI dropped the case and exonerated him.35. So far as present proceedings are concerned, as they arise out of a claim for compensation on the basis of medical negligence, the opinion and findings of the MCI regarding the professional conduct of Respondent 1 have great relevance.36. The above-referred findings of the MCI on the conduct of Respondent 1 leave no doubt in our mind that this is certainly a case of medical negligence leading to deficiency in his services. NCDRC, except referring to the general principles of law as laid down in the judgments of this Court has not attempted to draw its conclusion from the oral and documentary evidence available on record.37. Apart from the facts that clearly emerge from the report of the MCI, there is sufficient evidence to reiterate the same findings of deficiency.38. Having considered the matter in detail, we are of the opinion that the NCDRC has committed an error in reversing the findings of the SCDRC and not adverting to the evidence on record including the report of the MCI. The decision of the NCDRC deserves to be set aside and we hold that the complainants have made out a case of medical negligence against Respondents 1 and 2 and are entitled to seek compensation on the ground of deficiency of service.39. The State Commission as well as the National Commission and even the MCI have not found Respondents 3 and 4 negligent in performing their services, and we are in agreement with such findings and therefore, confine our conclusion and directions to Respondents 1 and 2. To this extent, we reject the appeal of the complainant against all except Respondents 1 and 2.