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Judgment
THE brief facts as set out in the complaint are that the complainant was admitted in the opposite party hospital on 22.11.2006 for treatment of Acute Calculus Cholecystitis (herein after called ''ACC'') and was a known diabetic mellitus and hypertension patient. The surgery was conducted on 27.11.2006 and a stent was inserted and he was discharged on 3.12.2006. CBD calculus was extracted using a balloon catheter followed by insertion of 7 Fr double pigtail internal biliary stent during the surgery. The complainant submits that there was no mention of plan for removal of the stent. After one month of the operation, he suffered from abdominal pain and visited the opposite party hospital on 3.1.2007, 30.5.2007, 28.9.2007, 4.3.2008, 20.6.2008 and 13.12.2008. He was advised medication, on 24.9.2011 once again he visited O.P. hospital for severe pain and he was informed that the stent might have been disposed of during the motion. Thereafter, he took treatment from another doctor who informed him that ''double pigtail internal biliary stent still existed and the doctor removed it on 28.9.2011. The complainant alleged that, as the stent was not removed for a period of 4 years and 10 months between 27.11.2006 and 28.9.2011, he had regular pain, it was negligence and deficiency in service by OP, hence filed a complaint before the District Forum and sought compensation of Rs. 5 lakh from O.P. hospital. Based on the evidence adduced, the District Forum allowed the complaint directing the O.P. to pay compensation of Rs. 2 lakh together with costs of Rs. 2,000.
AGGRIEVED by the order of DF, the O.P. filed the first appeal, which was allowed by the State Commission. Hence, against the order of State Commission, the complainant filed this revision. This revision petition was dismissed in default on 25.10.2013. The complainant/Petitioner filed an application for restoration after delay of 138 days, along with an affidavit explaining the delay that he was suffering from fluctuating high sugar and blood pressure. Thus, in the interest of justice, also considering this bona fide reason and age of complainant is 74 years, the delay hereby is condoned and the revision petition is restored to its number. Complainant sent his written arguments. We have heard arguments from the learned Counsel for the O.P. and perused the medical records on file.
THE complainant was known diabetic and hypertensive, suffering from Calculus Cholecystitis with Benign Hyperplasia of Prostate (BPH). On 25.11.2006, Surgical Gastroenterologist performed ERCP + Stone Clearance + Stenting. Further, on 27.11.2006, two surgeries were performed i.e. TURP for BPH and Laparoscopic Cholecystectomy (Ex -B1) and the patient was discharged on 3.12.2006. Thereafter, the complainant visited the O.P. for pain in abdomen on several occasions as stated in complaint, but, no steps were taken by O.P. to remove the stent. The complainant was under impression that because of non -removal of stent, there was persistent abdominal pain for past 4 years and 10 months. Pain was relieved after removal of stent by one, Dr. Vidya Sagar, on 28.9.2011. (Ex. A3).
THE Counsel for O.P. drew our attention to "Management of common bile duct stones with a biliary endoprosthesis. Report on 40 cases. "Biliary endoprosthesis insertion for choledocholithiasis is an important alternative means of establishing drainage in selected cases, and is probably the optimum method of management for the elderly and or debilitated patients with previous cholecystectomy. Caution must be exercised, however, in patients with an situ gall bladder."
Thus, it is clear that there is no hard and fast rule for removal of the stent, and it depends upon the patient''s age and other complications. In the instant case, the complainant that he was not suffering from Jaundice or any infection; but he had abdominal pain only, hence he was suggested medical management.
The Discharge Summary (Ex. A -1), is reproduced, as below:
He is a known follow -up case of acute calculus Cholecystitis with BPH and underwent percutaneous cholecystostomy and urinary catheterization at previous admission two months back. Presently admitted for elective surgery. Known case of Diabetes Mellitus since 10 years and hypertension since five years.
Therefore, we are of considered view that, considering the health status of the complainant, the O.P. has decided to keep the stent for longer time. The pain in abdomen can be due to several reasons, other than stent. Hence, he was treated symptomatically by medicines only. After going through the medical literature, we don''t find any negligence committed by OP.
WE have relied upon the leading case Maynard v. West Midlands Regional Health Authority the words of Lord President (Clyde) in Hunter v. Hanley,, 1955 SLT 213, were referred to and quoted as under: "In the realm of diagnosis and treatment there is ample scope for - genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men... The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care..."
The Court per Lord Scarman added as under:
"A doctor who professes to exercise a special skill must exercise the ordinary skill of his specialty. Differences of opinion and practice exist, and will always exist, in the medical as in other professions. There is seldom any one answer exclusive of all others to problems of professional judgment. A Court may prefer one body of opinion to the other, but that is no basis for a conclusion of negligence."
In Achutrao Haribhau Khodwa & Others v. State of Maharashtra & Others, : IV (2006) CPJ 8 (SC) : I (1996) CLT 532 (SC) : (1996) 2 SCC 634, Hon''ble Supreme Court noticed that in the very nature of medical profession, skills differs from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
Therefore, in the entirety of foregoing discussion, we do not find any flaw in the well considered order of State Commission. Hence, the revision petition is dismissed, no order as to costs.