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Judgment
Dr. Inder Jit Singh, Presiding Member
The present Revision Petition (RP) has been filed by the Petitioner against Respondents as detailed above, under section 21 (b) of Consumer Protection Act 1986, against the order dated 30.08.2017 of the State Consumer Disputes Redressal Commission, Hyderabad (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No. 579 of 2014 in which order dated 11.09.2014 of District Consumer Disputes Redressal Forum Nellore (hereinafter referred to as District Forum) in Consumer Complaint (CC) no 28 of 2012 was challenged, inter alia praying for setting the orders of the State Commission and District Forum and to pay compensation of Rs.15,00,000/- alongwith costs.
While the Revision Petitioner (hereinafter also referred to as Complainant) was Appellant and the Respondents (hereinafter also referred to as OPs ) were Respondent in the said FA 579 of 2014 before the State Commission, the Revision Petitioner was Complainant and Respondents were Opposite Parties before the District Commission in the CC no. 28 of 2012. Notice was issued to the Respondents on 01.02.2019. Parties filed Written Arguments/Synopsis on 24.11.2018 and 05.04.2023 respectively.
Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Commission and other case records are that Complainant feeling pain in hepatic region met respondent no.1 herein Dr. K. Rupa Kumar on 14.04.2011, got her tested and ultrasound report was got done. It was noticed that complainant was suffering from formation of stones in the gall bladder and she was diagnosed to be suffering from ‘symptomatic cholilithasis’. She was advised laproscopic cholecystectomy and after explaining the complainant the various surgical options and risk involved, the procedure was done on 26.04.2011. She was discharged from the hospital on 28.04.2011 as no post operative complications were found. On 03.05.2011 i.e. seven days after the surgery, ultrasound was done and there was no evidence of any complication. However, she was examined again on 06.05.2011 she was found with mild jaundice. The ultrasound done on her revealed proximal dilated bile duct (CBD) with IHBD with abrupt ending at mid section i.e. narrowing of the duct. The respondent no.1 referred the complainant to Gastroentologist, Narayna Medical College, Nellore. However, the Complainant did not go to the said medical college and chose to go to Vijaya Medical and Educational Trust Hospital at Chennai. At Vijaya Medical and Educational Trust Hospital, she was diagnosed with CBD stricture and received treatment as in patient from 09.05.2011 to 13.05.2011. She improved symptomatically with medication and was discharged and was advised to be on medication with Pantocid capsule. On being complained of pain again, she was admitted in the hospital on 18.05.2011 and after treating her with antibiotics, she was discharged on 26.05.2011 with advise to be on prescribed medication. She again went to the same hospital for the third time after complaining loss of appetite with pain and abdominal distension for the past four days and continuous vomiting. Since her condition was critical, infected bile was drained through the procedure of drainage tube inserted in the right hypochondirum and in the LIF. The complainant was managed in mechanical ventillators for two days and her condition improved with medication and she was discharged on 08.06.2011. However, after few days, there was fluid collection in the anterior perihepatic region and surgery was conducted on her to remove puss collection. She was discharged on 08.08.2011. Complainant filed a CC before the District Forum which was dismissed. Aggrieved by the decision of the District Forum, the Complainant filed Appeal before the State Commission which was also dismissed. Hence, the Complainant / Petitioner is before this Commission now in the present Revision Petition.
Petitioner has challenged the said Order dated 30.08.2017 of the State Commission mainly on following grounds:
(i) State Commission failed to observe that when doctor admitted his negligence no expert evidence is required and doctrine of Res-ipso-loquitor can be taken into consideration in giving the order.
(ii) Narrowing on the internal organ called Bile Duct is very fatal and dangerous to the health condition of the Complainant.
(iii) There is an injury to the bile duct caused by the respondent no.1 which fact is not observed by the State Commission.
(iv) Illegal operation was done by respondent no.1 as bile directly entered into the blood causing obstructive jaundice to the Petitioner causing discomfort and life of the petitioner in danger.
(v) Entire blood became poisonous after admitting in Vijaya Hospital.
(vi) Petitioner was having CBD stricture with obstructive jaundice and this fact was not taken into consideration by the State Commission.
(vii) The consent procured by the Petitioner does not absolve the respondents from their obligation to render due care.
Heard counsels of both sides. Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.
5.1. Counsel for the Petitioner argued that it is the responsibility of the surgeon that no injury is caused to the bile duct and respondent no.1 admitted the fact that there is injury to the bile duct during the operation conducted on 26.04.2011. Equipment to carry out the procedure namely Endoscopic Retrograde Cholangio Pancreatograph) was not available at the respondent no.2 hospital and instead referred the complainant to some other hospital. Respondent no.1 has not done the operation properly and had not taken proper precaution. No consent was taken from the complainant before doing operation. In order to escape his liability, opposite parties send the complainant to Narayana Hospital. The doctors of Vijaya Health Centra did not give any guarantee to the life of the Complainant on account of improper treatment given by the respondents. This Commission in IV ( 2013 ) CPJ 35 held that expert opinion is not necessary in all cases where negligence and deficiency in service of treating doctor is established. District Forum has not given any opportunity to the complainant’s counsel to argue the case. Bilirubin count increased considerably on account of injury to the bile duct. Not taking consent from the complainant and not explaining the surgery procedure is deficiency in service.
5.2. Counsel for Respondent no.1 argued that respondent had counseled the complainant as per standard protocols in the presence of her attendant and after being convinced, the complainant’s signature was obtained on the high risk consent form. The complainant was admitted under Rajiv Arogya Sree Scheme and no charges whatsoever were collected from her. Utmost care was taken during surgery and in order to detect any intraoperative complications like inadvertent injury to the bile duct or other nearby organs, a suction drain was left in the operation area. Complainant was put under close observation and reviewed frequently in the post operative ward, remained stable and did not reveal any evidence of complications. The physical examination as also the ultrasonogram of the abdomen did not reveal any abnormality. Injury to the bile duct is known complication of any surgery on gall bladder and the ‘stricture’ suspected by the respondent on 06.05.2011 was ruled out by ultrasonography done at Vijaya Hospital, Chennai on 25.05.2011. Complainant was not in critical state of health when she was referred as she was admitted in the general ward under the care of general physician and no attempt was made at Vijaya Hospital to confirm or rule out the possibility of stricture. The Complainant carefully concealed chronology of number of admissions and the respective dates, diagnosis as well as treatment received during such admissions. The Complainant without any justification preferred to get herself treated in a neighbouring state where the facility of free treatment undr Rajiv Arogya Sri does not apply. Complainant ignored and did not follow the advice given to her by the respondent. Complainant underwent treatment at Vijaya Hospital for ‘Acute Bilary Peritonitis’ on 30.05.2011. The condition namely ‘Acute Bilary Peritonitis’ has no proximate connection to the laproscopic cholecystectomy done by the respondent. Counsel for the respondent no.1 relied on various judgments of the Hon’ble Supreme Court i.e. Spring Meadows Hospital & Anr. ( 1998 ) 4 SCC 39, Dr. Laxman Balakrishna Joshi ( 1969) SCR 206, Smt. Santra ( 2000 ) 5 SCC 182, Poonam Verma ( 1996) 4 SCC 332, Kurban Hussain case ( 1965) 2 SCR, Achutrao Haribabu ( 1996) 2 SCC 634, Sreekumar ( 2009) 7 SCC 30.
5.3. Counsel for Respondent no.2 argued that concurrent findings are recorded by the Fora below and all due precautions were taken by the respondents in performing the surgery. Ultrasound scan report shows that diagnosis made by respondent no.1 was perfectly correct as confirmed from the diagnosis report conducted at Vijaya Hospital, Chennai. Petitioner was discharged from the hospital after she was found free from all complications. Counsel has further argued that revisional jurisdiction of National Commission is limited and has relied on Rubi ( Chandra ) Dutta Vs. M/s United India Insurance Co. Ltd. ( 2011) 11 SCC 269, Sunil Kmar Maity Vs. State Bank of India and Anr. Civil Appeal No. 432 of 2022.
We have carefully gone through the facts and circumstances of the case, orders of State Commission and District Forum, other case records and rival contentions of the parties. In this case, both the fora below have given concurrent findings that there was no medical negligence on the part of respondents herein. The State Commission has given a well reasoned and speaking order. Extracts of some of the observations / findings of State Commission are reproduced below:
“13. In the case on hand there can be no dispute that respondent No.1-doctor is a qualified surgeon holding Masters Degree in Surgery (Ex.B17) and also worked as Teacher in the Department of Classified Specialist in Surgery 9 Ex.B18) in the Command Hospital, Air Force, Bangalore. He has the experience of conducting 350 laproscopic cholegisterctomy procedures apart fro other laparoscopic surgeries in the said hospital. From this, it is clear that the 1st respondent – doctor was not a novice when he conducted the procedure on the appellant.
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It is not as if the 1st respondent-doctor conducted the surgery without the appraising the appellant. Ex.B5 is the consent letter signed by the appellant to conduct the requisite investigations. Ex.B6 is the counseling given by him and the consent of the appellant for laparoscopic procedure. Ex. B7 is the high risk consent given not only by the appellant but also his sister Ms.Sheshamma. From this it is clearly proved that the 1st respondent had taken the consent and precautions before conducting procedure on the appellant.
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From the literature on the subject it would appear that considerable number of complications that occur in laparoscopic cholegisterctomy are not detectable during surgery and possible complications such as bleeding, infection and also injury to the duct may occur post surgery. These have to be corrected surgically if the injury is minor or by corrective surgery if it is major. It is true that appellant underwent treatment by spending considerable amount but that itself is not sufficient to prove negligence.
It is true that the request of the appellant to call for the expert opinion was rejected by the Forum, in our opinion rightly. It is not an inviolable rule that expert opinion should be called for in each and every medical negligence case. It all depends on the prima facie case made out in that regard as held by Apex Court in V. Kishan Rao V. Nikhil Super Speciality Hospital and Another Iii ( 2010 ) CPJ 365 ( NC ). Apart from the fact that no prima facie case has been made out by the Appellant, the appellant made a belated request to the Forum after the matter was fully heard and the dictation of the judgment was half way through.
In the analysis as above, we confirm the finding of the Forum that the appellant failed to establish negligence against the respondents. The conclusion reached by the Forum does not suffer from any infirmity.
We also find that District Forum has given a well reasoned order. Some of the observations / findings of District Forum are reproduced below:
“7. The complainant has filed number of records. Most of the exhibits are with regard to the bills of Vijaya hospital, institutions etc. The relevant document is Ex.A4, the discharge summary of Vijaya hospital, Chennai. In the above document not a single adverse opinion was made against the erroneous performance of the surgery of the first opposite party. Even, in Ex.A5, CBD stricture was diagnosed as was done by the first opposite party, as mentioned in Ex.A1. Therefore, the diagnosis of the first opposite party is correct. There is no material to show that his diagnosis was faulty, as alleged. The complainant has to establish that the first opposite party was negligent in performing his duties, as a surgeon and that he deviated from the normal procedure in giving the treatment. Such evidence is not adduced by the complainant. The complainant might have suffered for so many reasons and her suffering cannot be attributed to the first opposite party always.
As already held, no expert evidence is adduced to expose the faulty diagnosis and erroneous performance of the surgery, by the first opposite party. In a case, alleging medical negligence, this has to be established. This is the sum and substance of decision of Supreme Court and National consumer disputes redressal commission, and State consumer disputes redressal commissions on the point. Without adducing such necessary evidence, the claimant cannot succeed in a case of medical negligence. The complainant failed to establish the allegations against the opposite parties. The first opposite party has performed the surgery approved by the medical profession. On the other hand, in referring the complainant to Narayana hospital after taking scan 06-05-2011, the first opposite party betrayed concern for the welfare of the complainant. The complainant failed to establish negligence or deficiency of service, accordingly. The complainant is not entitled the claim and accordingly cannot be succeeded. She is not entitled to the reliefs, claimed. The point is held in the negative.”
As was held by the Hon’ble Supreme Court in Rubi Chandra Dutta Vs. United India Insurance Co. Ltd. [(2011) 11 SCC 269], the scope in a Revision Petition is limited. Such powers can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order. In Sunil Kumar Maity Vs. State Bank of India & Ors. [AIR (2022) SC 577], the Hon’ble Supreme Court held that “the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity.”
In view of the foregoing, we find no infirmity or material irregularity or jurisdictional error in the order of the State Commission and same is upheld. Accordingly, the RP is dismissed.
The pending IAs in the case, if any, also stand disposed off.