JUSTICE SHRI. K.R. UDAYABHANU: PRESIDENT
The appellant is the complainant in O.P. 216/99 in the file of CDRF, Kollam. The complaint stands dismissed.
2. It is the case of the complainant that while serving in the Army on 15.8.96 he felt belly pain and started vomiting. The military doctor on examination and on the basis of U.S.G. Scan findings found that he is having stones in the Gall bladder and advised a minor surgery. He reached home and got admitted at the opposite party hospital on 30.9.96. He was told by the second opposite party doctor that he will have to undergo an immediate laparoscopic operation and that it is a minor procedure and can go home after 3 days. He under went the surgery done by the second opposite party assisted by the 3rd opposite party doctors. It is alleged that the surgery was conducted without even conducting a scanning test prior to the surgery. He under went the surgery on 1.10,96. On 4.10.96 he felt much inconvenience and pain. On the next day he was found suffering from jaundice. His stomach got enlarged. He was having a yellow coloured discharge through the key hole of the belly. He was directed to undergo scanning test. The condition did not improve thereafter. The belly got enlarged with bile collection and he was also having back ache. The fluid was being drained out through a tube from 4.10.96 to 17.10.96. The opposite parties carried out an open abdomen surgery on 17-10-96 and still there was no improvement. The discharge of the fluid continued. On 28.10.96 he was referred to PVS Hospital, Kochi. His weight had considerably reduced from 57Kg to 42 kg. At the time of discharge he was in a sinking stage. The H.B. rate was 14.4gms on 30.9.96 and on 17.6.96 the H.B. rate is noted as 8.7gms. On 30.10.96 he was admitted in PVS Hospital, Kochi. He underwent a major surgery on 7.11.96. On ERCP done on 2.11.96, it was found that there was a cut off the region of the common hepatic duct and leakage through the cystic duct stump. On 18.11.96, he was discharged from PVS Hospital. He was to appear for review on every 3 months and he was advised to take medicines regularly. It is alleged that the injury on the common hepatic duct was caused due to the failure on the part of the opposite parties and also on account of not conducting a scanning test before the surgery. There after he took voluntary retirement due to his permanent disability. At present he has to take rest and is unable to do any job. He has lost 6 years of service. He is also giving gastric disorders and he is under regular treatment. The injury during the laparoscopic surgery was due to the negligence of the opposite parties. He has claimed a sum of Rs. 5 lakhs as compensation.
3. The opposite parties 1 to 3 have filed separate versions.
4. In the version filed by the first opposite party, it is admitted that the complainant had undergone laparoscopic cholecystectomy at their hospital. The scanning report brought by him disclosed the presence of gall bladder stones. On 15.9.96 he was examined and the surgeon directed to get admitted on 30.9.96 and to undergo the procedure. The procedure was explained to him. The patient is expected to have a speedy recovery. Laproscopic cholecystectomy is the removal of gall bladder through minimal access ie, 3 small incisions measuring around 1cm as compared to open cholecystectomy which requires incisions measuring 10 to 15 inches. Trauma to tissues and post operative pain is minimal and healing is faster and hospital stay would be reduced. The necessary clinical tests were carried out on 30.9.96 and E.C.G. and X-ray was taken. It is denied that the required pre-operative tests were not conducted. On 03-10-96, U.S.G. was done as there was discomfort to the abdomen. On 4.10.96 liver function test was carried out and found that the bilurubin level was elevated. On 1.10.96 during the operation a drain was placed in the region of the gall bladder to drain out any fluid accumulation. On 3.10.96 about 500cc of fluid was drained. It is this that promoted the Surgeon to obtain the necessary U.S.G. report. The patient continued to drain about 300 c.c to 500 c.c. of fluid. However the patient remained stable. Bilurubin level was constantly monitored. As bilurubin level was rising the patient was subjected to repeat ultra sound scanning. The same showed more than 500ml of clear fluid collection. The same was aspirated under ultra sound guidance. Above 1,600cc bile was aspirated using syringe and needle. On 16.10.96, he was subjected to USG and found that the fluid collection was re-appearing. Hence on 17.10.96, exploratory laparotomy was done with consent. No obvious site or sources of leak could be identified. The clips used in the laproscopic surgery was found firmly in place. However to be doubly sure cystic duct was ligated and the abdomen closed. His condition was monitored by the surgeon and a team of doctors and nurses. Subsequently it was found that the bilurubin level had came down considerably. Since the bilary leaks were persistent for 10 days from 17.10.96, the doctors advised to have more expert management at PVS Hospital, Kochi, and issued the required letter of reference. Except for the bilary leak the patient was stable and there was nothing to term it as emergent. It is not correct that the condition of the complainant was too weak. He underwent the bilary bye-pass surgery on 7.11.96 and was discharged on 18.11.96 as per the records produced by the complainant. He was reviewed at the PVS hospital on 23.7.97 and was advised rest for a period of 3 months, according to the complainant. It is pointed out that after discharge from the opposite party hospital on 29.10.96 he got admitted at PVS Hospital only on 30.10.96. It is pointed out that the surgery was conducted only on 7.11.96 in the ordinary course. The unfortunate complication developed is the known ones to occur after gall bladder surgery. There is no negligence on the part of the opposite parties. The opposite parties have denied any knowledge as to the occupation of the complainant and the alleged voluntary retirement. It is denied that he was disabled from doing any work. It is also contended that the complainant is helplessly barred by limitation.
5. The second opposite party/Surgeon has also filed version containing similar averments as in the version of the 1st opposite party. It is pointed out that the histopathological examination of the specimen after the laparoscopic surgery showed that he was having chronic calculus cholecystitis ie, multiple yellow stones in the bladder with irregular vall and ulceration of mucosa. When the complainant developed such subphrenic bile collection it was drained under ultrasound guidance on 15.10.96. cholecystectomy is not a minor surgery. It is specifically pointed out that the complaint has been filed only on 18.3.99 which is more than 2 years after the alleged cause of action. The complainant was discharged from PVS hospital on 18.11.96. The opposite party has denied any negligence on his part. It is stated that medical science unfortunately has not reached a stage where adoption of a particular treatment, medical or surgical would produce a definite positive result in all case of illness. The outcome of the treatment would depend on a variety of factors such as the severity of the conditions treated, co-existence of other diseases, Immunological status, limitation of the treatment involved, sensitivity of the individual as to the drugs, resistance of the organisms etc. to a greater extent many of which are not under the control of the treating doctors or hospital.
6. 3rd opposite party, doctor has also filed version containing similar averments as that of the second opposite party, doctor.
7. The evidence adduced consisted of the testimony of PW1,DW1 Exts. P1 to P16, D1 and D2.
8. The Forum has disposed of the matter dismissing the complaint with a very cryptic discussion. The Forum has also held that the complaint is barred by limitation as the complainant has been discharged from the hospital of the opposite party on 28.10.96 and the complaint has been filed on 18.3.99 after 2 years from the date of arising of the cause of action.
9. As contended by the Counsel for the appellant/complainant, we find that the complainant was discharged from the PVS Hospital, Kochi on 18.11.96. It is noted in Ext. P5 case summary of PVS Hospital that he has to appear for review on 9.12.96 with liver function test result. Ext. P2 is a certificate from PVS Hospital. Therein it is mentioned that he was reviewed at the hospital on 23.7.96 and that he has advised rest for a period of 3 months. The above certificate is issued by Dr. Mathew Philip, Consultant, Gastro Enterologist of PVS Hospital. The genuineness to the Ext.P2 certificate has not been disputed. Evidently he has undergone a very major surgery on 7.11.96 and was inpatient till 18.11.96 at PVS hospital. Evidently he would not be in a position to consult a lawyer and file the complaint. The complaint has been filed on 18.3.99. The complaint is within the period of limitation vide Section 24 of the C.P. Act from the date of Ext. P2 ie. 23.7.97. The complainant had alleged in the complaint the above date also as the date on which the cause of action has arisen. We find that the period up to 23.7.97 can be reasonably taken as the period of convalescence /recovery. He has alleged that it was on the above date that it was disclosed to him by the doctors at PVS hospital that there was negligence on the part of the opposite parties in the treatment administered to him at the opposite party hospital. Hence we find that the order of the Forum that the complaint is barred by limitation is incorrect. The above finding is set aside.
10. PW1 the complainant and DW1 the second opposite party Surgeon have testified in support of the respective versions filed. In the proof affidavit filed by the complainant it is submitted that since 04-10-1996 he was having inconveniences and from the next day it was found that he has having jaundice. His belly got enlarged and was totally irritated. There was yellow coloured fluid discharged from the keyhole made for the laproscopic surgery on 01-10-1996. Subsequently a large quantity of bile water was removed by means of a large needle. Thereafter also the belly got enlarged and he was having severe backache. The process of draining out bile water by using tube continued till 17-10-1996. On 17-10-1996 a major surgery was carried out. Thereafter his condition became worse. A large quantity of bile leakage was there. By the time he was referred to PVS Hospital ie, on 28-10-1996 his weight was reduced from 57 kg to 42 kg. According to him he was in a sinking stage. He proceeded to PVS Hospital carrying the tube and plastic bag attached to the belly. As soon as he was admitted at PVS Hospital two bottles of blood was transfused and a thorough investigation was carried out. On 07-11-1996 he underwent a major surgery at PVS Hospital. According to him after discharge from PVS Hospital he is undergoing regular review on every three months up to 04/00 and he is under regular medication of Dr. Philip Augustine of PVS Hospital. According to him the entire complications were on account of not carrying out the required pre surgery tests like scanning and X-ray. It is also stated that it is on account of the negligence on the part of the opposite parties that the injury was sustained. It is also pointed out that he had no jaundice prior to the laproscopic surgery. It is stated that the opposite parties ought to have referred him to PVS Hospital earlier on noticing that there was no improvement in his condition. It is alleged that the opposite parties were applying trial and error methods for the period of 17 days. The common bile duct injury was occasioned during the laproscopic surgery on account of the negligence of the opposite parties. He has also stated that he had to take voluntary retirement from the Army as the injury sustained to the common bile duct and the consequent surgeries had left him considerably disabled and unable to do any hard work. It is also pointed out that at the time of discharge from the opposite party hospital the HB rate had gone down to 8.7 gm whereas on 03-10-1996 it was 14.5 gm.
11. On the other hand, DW1 the second opposite party has explained that further USG scan was not taken prior to the laproscopic surgery as the complainant had brought with him the scanning report taken earlier. It is also contended that whatever has been done is as per the normal protocol. The injury to the common bile duct is an accepted complication of laproscopic cholecystectomy and the same is documented. Laparotomy was done in order to find out the source of the leak. It would not be possible to locate the same by scanning. Only by the test of ERCP ie, endoscopy using dye can locate such an injury and the facility was available only at P.V.S. Hospital, Ernakulam, Medical College and SUT Hospital. The reference made to the PVS Hospital was the right step as an ERCP done at PVS Hospital on 02-11-1996 showed a cut â off at the region on common hepatic duct where there was mild leakage of dye. Cut-off is the stoppage of the flow of dye. The necessary surgeries were done at PVS Hospital and the complainant was totally cured, according to DW1.
12. The complainant has produced the prior treatment details at his place of work vide the prescription in Ext.P10 series. It is seen that he was examined at Agartala by the Military Doctor. It is stated therein that USG confirmed the case of acute calcular cholecystitis (multiple calculi) with distended gall bladder. He has been referred to surgery at GB Pant Hospital, New Delhi for expert management on 28-08-1996. As stated by him he left to his native place and got admitted at the opposite party hospital. Ext.P1 is the letter issued by the 3rd opposite party doctor on behalf of the second opposite party dated 28-10-1996 wherein it is mentioned that the complainant has been referred for ERCP and expert management to Dr. Philip Augustine, PVS Hospital, Kochi. It is mentioned therein that the gall bladder was extended with infected bile due to a calculus obstructing at the neck of gall bladder. A drain was kept in the sub hepatic space which drain for 3 days. On the 4th operative day the drain was removed. The next day he developed jaundice and bile started draining from the drain site which continued for more than 10 days. He developed sub phrenic (under the diaphragm) bile collection which was drained under USG guidance on 15-10-1996. The bile collection reappeared again and he was reexplored on 17-10-1996. No specific site of leak was seen except doubtful leak from the cystic duct which was clipped previously during laparoscopy. This was transfixed with vicryl. Post operatively his jaundice reduced but he continues to have biliary leak even 11th post operative day. CBD (common bile duct) could not be clearly assessed on USG.
13. The case sheet from the PVS Hospital was not produced. Ext.P2 is the certificate dated 23-07-1997 from the PVS Hospital mentioning that he was reviewed on 23-07-1997 and is advised rest for a period of three months. Ext.P5 case summery of PVS Hospital mentions that he was presented to the hospital with persistent biliary fistula and jaundice. Physical examination revealed persistent drainage of bile through the drain (about 600ml/day) and mild icterus (jaundice). Abdominal ultrasonography revealed sub diaphragmatic and sub hepatic collection. There was no biliary dilatation. ERCP was performed on 02-11-1996 which showed a cut - off at the region of common hepatic duct with mild leakage of dye through the cystic duct stump. After preoperative assessment the patient underwent surgery on 07-11-1996. There was dense intraperitoneal adhesions especially in the right upper quadrant. There was a large peri and sub hepatic hematoma. There was a small rent (tear) in the common hepatic duct which was draining into an abscess cavity just at the confluence of the right and left hepatic duct. RouxâEn-Y hepaticojejunostomy and jejunojejunostomy were performed. After an uneventful post operative course he was discharged on 18-11-1996. He has been directed to come for review on 09-12-1996 with LFT (liver function test) results.
14. Ext.P6 is a certificate from the PVS Hospital mentioning that subsequently he was admitted on 18-10-2001 with a diagnosis of sub acute intestinal obstruction which was treated conservatively. He was discharged on 20-10-2001. Ext.P7 is the service details wherein it is seen that he is the Havildar in the Army with the trade of blacksmith and he has been appointed on 19-09-1996 and he has been discharged on 01-11-1997 on voluntary retirement. His qualification is SSLC and ITI. His character assessment is mentioned as very good.
15. Ext.P9 series are the receipts of payment of hospital bills at PVS Hospital. Ext.P10 series are the prescriptions at PVS Hospital for the periods including 1997, 1998, 1999, 2000 and 2001. Ext.P11 is the USG report from the opposite party hospital dated 03-10-1996 after the laproscopic surgery wherein it is noted that there is fluid collection in the right anterior subphrenic space extending to the sub hepatic space. He has also produced copies of the laboratory reports at the opposite party hospital that would support his case of the reduced HB rate and increased bilurubin rate. The bilurubin had shot from 0.2mg to 6.3 mg.
16. Ext.D1 is the copy of the case sheet of the opposite party hospital which would show that at the time of admission the weight was 57 kg . Ext.D1 contains the review ultrasonogram report dated 21-10-1996. As per the USG report dated 14-10-1996 it is mentioned that ultra sonogram guide aspiration of the subphrenic collection was done under LA and 1600 CC of concentrated bile aspirated and that the patient is stable after aspiration. Ext.D1 also contains the details of the laparotomy done on 17-10-1996 as well as the details of the laproscopic cholecystectomy. On 02-10-1996 vomiting is noted.
17. Ext.D2 is the medical literature produced by the opposite parties ie, an article dated 18-04-1991 in The New England Journal of Medicine. Therein it is mentioned on the basis of statistics that there was 0.5% of overall incidence of injuries to the common or hepatic duct in laproscopic cholecystoctomy and that in some cases the injuries were not recognized until 3rd, 5th and 14days after the procedure, when the patients had abnormal results of liver function tests or unexplained ileus. These patients required a second operation and Roux-en-Y hepaticojejunostomy.
18. As pointed out by the Counsel for the complainant the above statistics is with respect to the laproscopic surgeries conducted earlier to 1991. The points stressed is that even if it is accepted complication and was caused to the complainant he ought not to have been kept at the hospital up to 28-11-1996. The laparotomy done on 17-10-1996 also was not helpful. Evidently, the injury could be and can be located only by ERCP as stated by DW1. Hence subjecting the compllainant to a laparotomy stands not properly explained. Even after the laparotomy conducted on 19-10-1996 he has been kept in the hospital with bile leakage up to 28-10-1996. There is no facility for ERCP at the opposite party hospital is admitted. The condition of the complainant had deteriorated considerably is evident from the fact of the continuous biliary leakage since the laproscopic procedure on 01-10-1996 and the injury was suspected evidently before 17-10-1996 when he was subjected to laparotomy. Although it was stressed by the complainant in the affidavit filed that he was discharged belatedly the same was not explained in the deposition of DW1. The contention that the above allegation is not mentioned in the complaint is not relevant in view of the fact that the same has been highlighted in the affidavit filed by the complainant. The complainant was also not been cross examined on the above aspect. It has also to be noted that the second opposite party/DW1 was well aware of the fact as evident from his deposition that only certain hospitals including PVS Hospital had the facility for ERCP to detect the injury to the common bile duct. Of course, there is considerable lapse on the part of the complainant in conducting the case as the case sheet of the PVS Hospital was not produced which would have shown the alleged seriousness of the condition of the complainant at the time of his admission at PVS Hospital. The case of the complainant that he had to carry the tube attached to the stomach and bag has not been disputed. His case that it was on account of the disability consequent to the surgery that he opted for voluntary retirement appears true in view of Ext.P7 the service record wherein it is mentioned that he retired voluntarily on 01-11-1997 ie within one year of the surgery and immediate consequent treatment undergone at PVS Hospital. He has also produced the prescriptions etc for the period including the year 2001 as to the continued treatment that he has undergone at PVS Hospital. There is lapse on the part of the Counsel for the complainant as DW1 was not cross examined. Although it was contended by the Counsel for the respondent/opposite parties that the complainant was kept at the hospital up to 28-10-1996 in order to get his condition stabilized as he was having jaundice. We find that the above contention is contrary to the case set up in the version that the complainant was stable after the laparotomy but for the biliary leak. Even if he was having jaundice consequent to the surgery there is nothing to show that he was in such a position that he could not be transported to any nearby major hospital. The above reason is also not recorded in Ext.B1 case sheet.
19. In the circumstances, we find that the complainant had to suffer considerably on account of the delayed discharge from the opposite party hospital although there is no sufficient evidence to establish that the alleged subsequent disabilities to the complainant was only on account of the above delayed discharge. We find that deficiency in service on the part of the opposite parties stands established, with respect to the delay in referring the complainant at an earlier point of time for expert management at a higher centre. The finding of the Forum in this regard is set aside.
We find that a sum of Rs. 1,00,000/- as compensation would be reasonable in the circumstances. The opposite parties 1 and 2 would be jointly and severally liable to pay the amount of compensation with interest at 9% per annum. We confine the period for which the opposite parties would be liable to pay interest for 5 years as the inordinate delay in the disposal of the case and appeal has taken place also on account of systemic delays and also as the appeal, we find has been dismissed for non appearance of the Counsel for more than once and subsequently restored. The opposite parties 1 and 2 would also be liable to pay cost of Rs. 7,500/-. The amounts are to be paid within 3 months from the date of receipt of copy of this order, failing which the complainant will be entitled for interest at 12% per annum from 22-06-2011, the date of this order.
In the result, the appeal is allowed as above.
The office will forward the LCR to the Forum along with a copy of this order.