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Judgment
Dr. S. M. Kantikar, Presiding Member
This Order shall decide both the first appeals arising from the impugned Judgment /Order dated 22.12.2014 passed by the State Consumer Disputes Redressal Commission, Chhattisgarh (hereinafter referred to as the “State Commission”) in Consumer Complaint No. 06/2010, wherein the State Commission partly allowed the complaint.
For the Convenience the parties are referred to as in the Complaint filed before the State Commission.
Brief facts are that on 30.05.2006 Complainant No.1 Padma Jha’s husband Mr. Anish Jha (since deceased, for short, the ‘patient’) visited Modern Medical Institute (for short, ‘MMI’) at Raipur (OP-4) and consulted with Dr. Sandeep Pandey (OP-1). It was diagnosed as Gastro Case. The OP-1 advised ERCP procedure for the stone in Common Bile Duct (CBD) and accordingly, ERCP was performed on 31.05.2006. It was alleged that the OP-1 was not qualified to do ERCP and it was performed after obtaining informed consent from the brother of the patient. However, after ERCP, the patient developed complications and during treatment, he expired on 28.06.2006. The OPs Nos. 1 to 4 issued Death Certificate as the cause of death was due to heart attack and septicemia. Being aggrieved due to alleged negligence causing death, the Complainants filed the Complaint before the State Commission, Chhattisgarh and prayed compensation of Rs.90 lakh with interest @12%.
The OPs- 1 to 4 filed their respective written version, denied any negligence during treatment of the patient. The State Commission, upon hearing the parties partly allowed the Complaint and directed the Opposite Parties Nos. 1 to 4 to pay total Compensation of Rs.12,00,000/- along with 9% interest & Rs.10,000/- as cost of litigation.
Being aggrieved both the parties have filed separate appeals. The Complainants filed FA 73/2015 for enhancement of Compensation, whereas the OPs 1 to 4 have filed FA 194/2015 for dismissal of Complaint.
Heard the arguments from both the sides and perused the medical record, the evidence and medical literature on the subject. The learned Counsel on both the sides reiterated their evidence.
The Complainants in support of their case obtained expert opinion (affidavit) from Dr. B. Ravi Kumar. He was also cross-examined by the OPs Nos. 1 to 4. According to Dr. B. Ravi Kumar, on 26.05.2006, patient’s abdominal pain was increased after ERCP procedure. He opined that the diagnosis and treatment given by Dr. Sandeep Pandey (OP-1) was wrong. His opinion is reproduced as below:
"After perusing the case sheet of the Anish Jha, aged 37/2006, abdominal pain started on 26/5/2006.
DOA 30/5/2006 No mention of DISTENSION and TENDERNESS in the O.P. Sheet
Date of E.R.C.P. 31/5/2006 at 7P.M.
After E.R.C.P. pain increased.
Pt. condition deteriorates. 1/6/2006 serum amylase (which is high) for the first time, not done before.
I.P. Chart notes (1/6/2006) Tenderness and distension. Flatus tube inserted. Hence sub-acute obstruction is clear. This is called SURGICAL abdomen. No surgical consultation done at that point of time.
Dr. admits of gall bladder removal by open surgery 10 years back. In view of that the anatomical distortion of the biliary system is possible. So the Dr. Pandey should have taken an opinion from a surgeon before E.R.C.P. Diagnosis of pancreatitis entertained only on 3/6/2006. Serum Amylase on 15/6/2006 is also high and so the treatment was wrong in addition that the diagnosis is wrong.
X-rays's taken to rule out perforation as per the case sheet. But whether the above mentioned films in ERECT position or LATERAL view in lying position not mentioned. Casually mentioning that perforation ruled out.
Hence X-rays not given. This perforation is the reason for SEPTICEMIA.
C.T. Scan report on 12/7/2006 only D.O.D. on 28/6/2006. The report usually takes only 2 hours. Not shown to the by standers since it must have been showing signs of surgical abdomen.
Common Bile Duct Diameter written as 11 mm. normal diameter is from 5 to 8 mm. (check net).
Diabetes detected only at the fag end because it was not pancreatitis but the peritoneal inflammation caused by the BILIARY LEAK which caused abdominal distension and tenderness WITH MULTI ORGAN DYSFUNCTION (MODS) caused by BILIARY PERITONITIS. Deranged renal function is also due to the same.
Serum Bilirubin on 24/6/2006 is 1.76 because of biliary leak via the duodenum which was perforated or the common bile duct itself because of the mis-positioned stent. But Dr. Pandey comments that it is a good sign and the pt. improving because of the stent.
On 22/6/2006 the case sheet mentions that pt. passes stools. So he was not passing motion from 31/5/2006. Hence surgical abdomen is confirmed. Visit of surgeon is only of cosmetic in nature and that too only two days prior to the death of the patient.
Most important once you notice abdominal distension you have to keep a record of the diameter at the lead of the umbilicus on a daily basis which was not done.
Laparotomy done for lavage and was done very late and is the reason why it is admitted in the case sheet that the pt. did not improve after surgery.
CAUSE OF DEATH: Biliary Peritonitis with peri-pancreatitis? (Pancreatitis abscess) renal failure and Septicemia.
Dr. John Mayberiy, Dsc MD FRCP (London), Professor of Gastroenterology though he was no longer practicing ERCP personally but opined as:
ERCP is not an appropriate investigation for the assessment of abdominal pain. In Western Europe and North America it has been replaced by Magnetic Resonnace scanning. The reason for this is largely the risk of acute pancreatitis is resulting directly from and ERCP. It is said to carry a risk of mortality of 1 .5%. In European and American practice it would be standard practice to inform patients of this magnitude of risk so that they can give informed consent".
In the instant case, the patient’s brother Mr. Ashwini Jha had also lodged a Complaint against the OPs Nos. 1 to 3 before the Medical Council of India (MCI), the same was forwarded to the M.P. Council, Bhopal (M.P.). The matter was examined by M.P. Medical Council Bhopal and the Ethics cum Disciplinary Committee decided as below:
"There was no negligence or want of care in the treatment of the patient by the doctors against whom the complaint was made. All these three doctors are medically qualified and were competent to treat and handle the patient, whose condition was serious with complications. We do not find any material or record to suggest or infer that there was any negligence or professional incompetence or want of medical care in treating or in medical handling of the patient".
To get the clarity, the original record from the State Commission was requisitioned from the State Commission. The medical record revealed that the procedure of ERCP was performed after taking informed consent. The patient already had undergone cholecystectomy ten years back. On 30.05.2006, he presented with abdominal pain and clinically CBD stone was suspected. It is evident from the bed head ticket (BHT) that on 08.06.2006 Injection "Octride" was given time. The dose of “Octride” was increased by 50 mg to 100 mg/4 hour. It is used to reduce the secretions. It shall not be interpreted as wrong ERCP performed for the Pancreas instead of CBD stone. Moreover, post-ERCP, pancreatitis is a known complication, it was not negligence.
I further note that during the post-ERCP period, the patient was carefully monitored and managed with the help of specialist and proper medication. As per the medical literature at the initial stage, surgery is never recommended in case of severe acute pancreatitis, but conservative management is preferred. The post-ERCP pain and distension of abdomen was because of insufflated air into abdomen during the procedure (ERCP) and secondly injection Buscopen was given during the procedure, which reduces the movement of intestine. The pain was managed by normal pain killers and nasogastric tube insertion, which reduces the distension. The X-ray abdomen (standing) was done to rule out bowel perforation. Treatment for pancreatitis was started immediately after ERCP on 01.06.2006. As the patient was having critical illness, therefore, and he was treated in the ICU with various life support system, broad spectrum antibiotics, blood transfusion. In my view, the treating doctors had treated the patient as per the reasonable standards, but unfortunately the patient suffered septicemia and expired.
The next point for consideration is whether OP-1 was qualified and competent to perform ERCP. I have perused the latest syllabus of AIIMS for the subject of DM/M Ch at AIIMS. Accordingly, during training period of DM, the doctors (post graduate students / residents) have to perform all procedure under supervision of faculty. After their qualification, they may perform all procedures independently, there are very few centres with hepatology training. Moreover, hepatologists need ERCP. Therefore, in my view, OP-1 was qualified, experienced and competent to do ERCP. Thus, the Complainant’s allegation with respect to competency of OP-1 is not sustainable.
Admittedly, Dr. Sandeep Pandey (OP-1) was DM in Gastroenterology and since 1992 to 2009 he had worked in different reputed hospitals including AIIMS New Delhi. Now, since 2009, he is working in Ram Krishna Gare Hospital, Raipur. Therefore, in my view, the OP-1 Dr. Sandeep Pandey was qualified as DM (Gastro) and competent to conduct ERCP procedure. The OP-1 explained the risk involved in the procedure and also the post ERCP complications. He took an informed consent for the ERCP. The consent was taken specifically for CBD stones are associated with serious and life threatening complications such as cholangitis and acute pancreatitis. It should be borne in mind that the CBD exploration is a "surgical procedure" and entirely different from ERCP procedure. The CBD exploration was to be performed by a Surgeon. In the instant case, admittedly ERCP was done and CBD exploration was not done. The two doctors - Dr. S. Yadu and Dr. P. Agnihotri were also competent, thus, the medical negligence cannot be attributed to the OPs.
It would be apt to rely upon the observations made by the Hon’ble Supreme Court in the case of Jacob Mathew vs. State of Punjab[(2005) SSC (Crl) 1369], it was held as under:
“When a patient dies or suffers some mishap, there is a 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.”
Therefore, in my opinion, the State Commission erred to hold Dr. Sandeep Pandey not competent. Based on the foregoing discussion, no medical negligence is attributable to the Opposite Parties. The impugned Order of the State Commission is set aside and the Appeal filed by Complainants is dismissed and the Appeal filed by the Opposite Parties is allowed.
Consequently, the Consumer Complaint No. 06/2010 filed before the State Commission stands dismissed. The Parties to bear their own costs.