Judgment:
Per Justice Mr. B.B. Vagyani, Honble President
We heard Dr. M.S. Kamath, A.R. for the complainant, Mr. A.V. Patwardhan, Advocate for O.P.No.1 and Mr. N.P. Dalvi, Advocate for O.P.No.2.
Complainant is the mother of deceased Alfred Pais. Alfred Pais was bachelor. He was suffering from upper abdominal pain in August 1997. He consulted Dr.Robin Pinto, a Cardiologist. Dr.Robin Pinto suspected that Alfred Pais was suffering from Gall Bladder disease and advised a sonography of the abdomen. Sonography was done at Pikale Nursing Home at Mahim. It was reported that patient had a stone in the Gall Bladder. Alfred Pais then consulted Dr.Anil Pinto, O.P.No.1 herein at Holy Family Hospital on 20/08/1997. Dr.Pinto suggested surgery for removal of Gall Bladder Stone. He advised Laparoscopic surgery with tiny incisions. Dr.Pinto examined Alfred Pais on 26/08/1997 and admitted in the Hospital on 31/08/1997. Pre-operative blood tests were carried out. It was found that patient had Jaundice and an obstructed stone in passage of the Gall Bladder. Dr.Anil Pinto advised the patient to have stone removal from Bile Duct by a procedure known as âERCP. This procedure was performed by Dr.Amit Maydeo at Bhatia Hospital on 01/09/1997. Dr.Maydeo removed the stone. He observed dark bile and frank pus in the Gall Bladder. He therefore placed a stent to drain frank pus. Dr.Maydeo opined that patient could be subjected to removal of Gall Stone once jaundice and infection had subsided. Some medicines were administered to the patient for few days and thereafter patient was discharged from Holy Family Hospital on 04/09/1997. At the time of discharge, patient was advised to take tablets Udilive (an Ayurvedic liver tablets) for period of 10 days.
Alfred Pais contacted Dr.Anil Pintio on 19/09/1997. Patient was advised to undergo some tests prior to surgery. On 22/09/1997 Alfred Pais underwent a Biochemical test for Bilirubin, Sugar and Blood Counts in a private laboratory. Reports were shown to Dr.Anil Pinto on 24/09/1997. Dr.Anil Pinto asked Alfred Pais to get admitted in Holy Family Hospital on 26/09/1997 for Laparoscopic Gall Bladder Surgery to be performed on 27/09/1997. Other tests were not carried out. Alfred Pais had also Hernia. Dr.Anil Pinto advised Alfred Pais to undergo both surgeries together, one by laparoscopy and another by open surgery. Accordingly, both operations were performed on 27/09/1997. Dr.Anil Pinto came out of Operation Theatre and told relatives of the patient that surgery was completed but there was some bleeding due to a cut in some blood vessel which has been attended to. Alfred Pais developed a fever and breathlessness at 2.30 a.m. on 28/09/1997. His condition was suddenly worsened. Therefore, Dr.Anil Pinto examined the patient and told the relatives that patient had developed some infection which would be attended to by the doctors. Alfred Pais was then shifted to I.C.U. at 1.30 p.m. on 30/09/1997. Early Septicemia was noticed. In spite of treatment, condition of the patient started deteriorating and ultimately, patient was put on Ventilator on 03/10/1997. Dr.Anil Pinto informed relatives of the patient that there was nothing to worry and the infection would be controlled soon. Alfred Pinto however died at 7.30 p.m. on 06/10/1997. The cause of death was given as Cardio Respiratory Failure secondary to Gram Negative Septicemia and Right Basal Consolidation with Cholecystectomy for Gall Stones and Obstructive Jaundice with cholecystitis as associated causes. Main deficiencies of service and medical negligence in the treatment of Alfred Pais are as under :-
â1. It is obvious from evidence on recod that Alfred Pais was suffering from infection in the Gall Bladder, Dr.Anil Pinto proceeded to conduct laparoscopic cholecystectomy, which led to septicemia and death of the patient.
2. Even though the patient was suffering from Gall Bladder Infection, no antibiotic was prescribed to Alfred Pais, and surgery carried out without attempt to control the rampant infection. It is standard medical practice to curb the infection and then proceed for Laparoscopic Gall Bladder Surgery. This is reinforced by Dr.Maydeos report which calls for controlling the infection prior to surgery.
3. No investigations were performed prior to surgery in the form of Sonography, X-rays or any other procedures to find out the function of gall bladder prior to surgery. This is mentioned by textbooks of surgery as mandatory, before embarking on surgery.
4. It is important to note that Alfred Pais did not require emergency surgery and in the intervening period was in reasonably good health. There was hence no reason for the surgeon Dr.Anil Pinto to go through the surgery within 30 days after the first admission and particularly without carrying out necessary investigations, which were essential to prevent complications in the post-operative period.
5. Scrutiny of the Operation Notes also reveals that an important blood vessel was damaged during surgery, which required the surgeon to carry out open surgery from the originally planned Laparoscopic surgery. In spite of this, the surgeon did not think it fit to admit the patient in the Intensive Care Unit, thus jeopardizing his life.
6. It is also pertinent to note that the second operation of hernia repair was not urgent. This second operation further added to the overall gravity of the situation, ultimately leading to disastrous consequences for Alfred Pais.â
The following reliefs are claimed by the complainant :-
â(a) Rs.Five Lakhs (Rs.5,00,000/-) towards the loss of the lie of Alfred Pais due to negligent treatment as described above.
(b) Rupees Two Lakhs (Rs.2,00,000/-) towards the mental trauma caused to the family.
(c) Refund of Rs.70,000/- paid to the Holy Family Hospital as charges for the surgery, Hospitalisation and medicines with interest thereon.â
Dr.Anil Pinto/O.P.No.1 filed written statement and opposed the consumer complaint. He has denied to have committed medical negligence. He has stated that he has taken utmost care while performing both operations. Both operations were advisable and therefore with written consent of the patient, both operations were successfully carried out. All the required tests were carried out before operations. Jaundice was controlled and thereafter, operations were performed. Antibiotics were administered. Dr.Anil Pinto has contended in the written statement that complaint is misconceived, groundless and vexatious in nature. He further contends that factual events have been either deliberately suppressed or twisted by the complainant. Dr.Anil Pinto has contended that septicemia was originated from the body of the patient and infected Gall Bladder and the infected bile of the patient. Under such a prevalent situation, an urgent surgery was needed to be done. He clarified that antibiotics drugs were administered for period of 10 days when he was first discharged from the Hospital on 04/09/1997. He also clarified that both the operations were needed and were performed successfully. He stated in the written statement that in spite of due care, skill and caution exercised by him, he was unnecessarily dragged to the Court of Law on frivolous grounds.
O.P.No.2 filed separate written statement and opposed the consumer complaint. It is contended on behalf of the Hospital that no charges of any kind were levelled against the Hospital and therefore, Hospital may be discharged.
At the very outset, we would like to mention that making of reckless and groundless charges of medical negligence against operating surgeon are on rise. Even in absence of medical negligence, sometimes relatives of the patient under wrong impression to make allegations against operating surgeon. It is very easy to make allegations against operating surgeon. But, it is very difficult to prove serious charge of medical negligence.
A reference to recent decision of the Supreme Court in the case of Martin F. DSouza V/s. Mohd. Ishfaq, II (2009) SLT 20 is must. The Supreme Court has observed that notice should be issued to concerned doctor and Hospital only if there is prima-facie case of medical negligence as per report of Expert Committee. The Supreme Court has warned Police Officers not to arrest/harass doctors unless facts clearly come within parameters laid down in Jacob Mathews case, otherwise, legal action would be faced by the policemen. The Supreme Court has abundantly made clear that medical practitioner is not liable for negligence, simply because things went wrong from mis-chance/mis-adventure through error of judgement. It is held that medical practitioner would be liable only where his conduct fell below that of standards of reasonably competent practitioner in his field. Standard of care has to be judged in the light of knowledge available at the time of incident, not at the time of trial. It is also held by the Supreme Court that simply patient not favourably responded to the treatment given by the doctor or surgery failed, doctor cannot be held straightway liable for medical negligence by applying doctrine of res-ipsa-loquitur. In Para 49 of the judgement, the Supreme Court has observed that when a patient dies or suffers some mishap, there is tendency to blame the doctor for this. Things have gone wrong and therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions.
In the instant case, though serious charges of medical negligence are levelled against Dr.Anil Pinto, the complainant has not placed on record any expert opinion to substantiate the serious charges of medical negligence. The complainant has made up her mind on the basis of her own ideas, notions and perceptions about medical negligence.
We carefully examined the entire bulky record. The complainant has made wide allegations against Dr.Anil Pinto without there being any material. Even the facts are twisted. The entire case papers are placed on record. We carefully perused the relevant entries in the case papers. It is clearly seen from the case papers that Dr.Anil Pinto had taken utmost care in the treatment of the patient. He performed both the operations successfully. There was no charge of medical negligence against Dr.Anil Pinto so far as procedure of operations are concerned. It is interesting to note that patient was suffering from jaundice and therefore operations were postponed. It is material to note that all the necessary pre-operative tests were carried out. It is also explained that tablet Udiliv is not an Ayurvedic tablet, but a tablet which is a bile acid which helps to increase the flow of bile and brings down the jaundice. It is also material to note that in order to remove stone, which stuck to Gall Bladder, patient was referred to expert Dr.Amit Maydeo, who was attached to Bhatia Hospital. Dr.Maydeo removed the stone. As per advice of Dr.Maydeo, operations were performed after infection was controlled. From the case papers maintained in the Hospital, it is clearly seen that on 28/09/1997 when the patient felt difficulty in breathing, ultra sonography was done and at that time only Early septicemia was suspected and immediately thereafter, patient was kept on proper medicines. On 01/09/1997 Sr. Bilirubin was 10.0, direct 7.3 and indirect 2.7. Doctor therefore advised repetition of Sr. Bilirubin. It is material to note that jaundice was first controlled and thereafter, patient was taken for surgery. Therefore, it is very difficult to accept the unfounded allegations of the complainant that without controlling jaundice or infection, Dr.Anil Pinto performed the operations. On 22/09/1997 bio-chemical tests were carried out in Dr.Wilsons BioChemical Laboratory. That time S. Bilirubin (Total) was found 1.93mg/d1, S. Bilirubin (Direct) was found 1.37mg/d1 and S. Bilirubin (Indirect) was found 0.56mg/d1. Therefore, it is clearly seen that jaundice was brought under control and thereafter, surgery was performed. The charge levelled against Dr.Anil Pinto to the effect that antibiotics were administered only for 3 days is also incorrect. In fact antibiotics injections were advised and administered for period of 10 days. Every attempt was made to control jaundice and infection. It is not pointed out that both the surgeries were not medically advised. Such surgeries are well known to medical science.
Dr.Anil Pinto by way of abundant precautions placed on record affidavit of Mr.Pratapkumar B. Jariwala. He was operated upon for removal of Gall Bladder (Laparoscopic Cholecystectomy and repairs of Hernia on 01/12/1993 by Dr.Anil Pinto. He has made a positive statement on oath in his affidavit that both the operations were successful and his difficulties prior to operations were solved.
Dr.Anil Pinto by way of abundant precautions has placed on record affidavits of two experts. Dr.Vinay G. Mehandale, who has done 2500 laparoscopic surgeries all over India, has gone through the case papers of Alfred Pais, who was operated by Dr.Anil Pinto. He has made a positive statement in his affidavit that he did not find negligence on the part of Dr.Anil Pinto in the procedures adopted by him. He also pointed out that surgery was done 3 weeks after ERPC. He has also given opinion that there was no negligence in repairing Hernia at the same time. It is material to note that expert opinion of Dr.Mehandale has gone unchallenged in the evidence on record.
Dr.Roy Patankar has also filed his affidavit. He is an Assistant Professor of Surgery at Somaiya Medical College, Mumbai. He has done more than 2000 laparoscopic surgeries all over India. He has published papers and written chapters in National and International publications. He has stated in his affidavit that Udiliv is a bile acid called also Ursodeoxycholic acid and is an allopathic drug marketed in India for the use of allopathic doctors. He has given his opinion on oath that a repeat Ultrasonography is not mandatory prior to Laparoscopic Cholecystectomy in a patient, who has a CBD stone removed and a stent is placed at ERPC if patients jaundice has normalized and WBC counts have returned to normal. Dr.Roy Patankar has contradicted opinion of Dr.S. Nagral, which is placed on record on behalf of the complainant. Dr.Roy Patankar has opined on oath that a plastic stent often masks a stone in a collapsed CBD after ERCP and stenting and hence a routine ultrasonography is not routinely performed prior to a Laparoscopic Cholicystectomy. He further states on oath that ultrasonography is performed only at the discretion of the surgeon depending on the clinical picture of the patient.
From medical literature, it is clearly seen if stones stay in the Gall Bladder, they may not cause major problems. If the stones move around and block ducts, bile can back up, leading to infections and diseases of liver or to pancreatities. Medical literature is also shown that removing the Gall Bladder through a single incision made in the abdomen has traditionally been the best way to treat Gall Stones. Risks and complications include excessive bleeding or infection. Without there being any negligence on the part of Dr.Anil Pinto, septicemia developed and ultimately the patient died for which operating surgeon cannot be held responsible in any manner. The complainant has miserably failed to establish even remotely the correctness of number of allegations made against the operating surgeon. It is also to be noted that after post-operation complication, First Generation drug Cethlorin namely Reflin was administered. Dr.Anil Pinto also administered Third Generation Cethlorin. And finally Netronycyn, a broad spectrum antibiotic that terminates most microbes was administered. It is crystal clear that no pains were spared by O.P.No.1 as regards his duty and efforts to save life of the patient. It is also seen from the record that expert assistance of Dr.L. Desa and Dr.Jedwani was taken. It is also to be remembered that there is no scientific method that can delve into the exact cause of septicemia and its spread.
In absence of cogent and reliable evidence, Dr.Anil Pinto and Hospital cannot be held guilty of medical negligence. Serious charges levelled against them remained on paper only. Charges are not substantiated by any proof. The complaint is therefore liable to be dismissed with cost. In the result, we pass the following order :-
Order:
1. Complaint stands dismissed with cost of Rs.5,000/- to be paid to O.P.No.1.
2. No order as to costs of O.P.No.2.
3. Copies of the order be furnished to the parties.