HARNEK SINGH & ORS. v. DR. GURMIT SINGH & ORS.

(Resp. 3 & 4 in FA/108/2008) Dr. Atul Mishra, in person Mr. Manmohan Singh, AR For Reliance General Insurance Co.

(Resp. 5 in FA/108/2008)

:

Mr. Shoumik Mazumdar, Advocate Mr. Shashwata Pandey, Advocate For United India Insurance Co. Ltd.

(Resp. 6 in FA/108/2008) : Mr. Maibam N. Singh, Advocate

Pronounced on : 5^th June 2020

ORDER

PER DR. S. M. KANTIKAR, PRESIDING MEMBER

1. Both the cross appeals have been filed against the common order dated 24.1.2008 passed by UT Chandigarh State Consumer Disputes Redressal Commission, Chandigarh (for short, 'State Commission') wherein the State Commission allowed the complaint. The complainant, Harnek Singh filed the first appeal No. 108 of 2008 for enhancement of the compensation and other appeal No. 120 of 2008 filed by Dr. Gurmit Singh/OP for dismissal of the complaint.

2. The brief facts of the Complaint:

The facts are drawn from F.A. No. 108 of 2008 and the parties are referred herein as mentioned in the complaint.

On 13.07.2004, Harnek Singh, the complainant and his wife Manjeet Kaur (for short, 'patient') approached one Laparoscopic Surgeon, Dr. Gurmeet Singh/OP-1 at Preet Surgical Centre & Maternity Hospital at Patiala ( for short Preet Hospital- OP-2) for the complaints of abdominal pain. After examination and investigations OP-1 diagnosed it as gall bladder stone. On 28.07.2004 OP-1 performed laparoscopic Cholecystectomy and placed a drain in the abdomen. The complainant alleged that the patient developed progressive abdominal pain and distension; during post-operative period, and then she developed respiratory distress also. The drainage

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tube was showing large quantities of abnormal fluid; initially it was green and then became greenish brown with some fibrinous material with foul smell. Thus, it was an indication of a mixture of bile & intestinal contents. The complainant further alleged that OP-1 caused injury to the bile duct, but kept on re-assuring them that everything was fine. The complainant came to know through one paramedical staff in the hospital that the patient became serious because of some operative injury to the bile duct and/or intestines. The complainant requested several times to the OP-1 to seek second opinion from another surgeon or refer the patient to other hospital in Patiala having proper facilities. However, OP-1 did not pay heed for it. On 30.7.2004 around 9.00 p.m., suddenly the patient became critical and then OP-1 referred the patient to Dr. Atul Mishra (OP-3) at Department of Surgery, Dayanand Medical College and Hospital/OP-4 (for short, 'DMCH'). The patient reached DMCH at 11.30 p.m., and admitted under OP-3 unit. The doctor on emergency duty Dr. Puneet Gupta after examination suspected it as a case of an operative injury to the bile duct. At 2.30 a.m. on 31.7.2004, CT scan was performed, it revealed moderate intra-abdominal and sub phrenic collection (i.e. collection of fluid below the Diaphragm) and there was significant pneumo-peritoneum (i.e. free air in the abdomen) with collapse and consolidation of lower part of both the lungs. The doctors did not make efforts to confirm the possibility of any operative bile duct injury. Dr. Atul Mishra (OP-3) did not come to see the patient in the night immediately, but he examined the patient on the next day at 9.00 a.m. At DMCH, for the first three days no active treatment was given by OP-3 and also no efforts made to remove the infected bilious and feculent abdominal collection. It further led deterioration of the patient's condition. Thereafter, the patient developed respiratory complications with irreversible septicemia and became critical on 03.08.2004.Then only, OP-3 decided to perform re-exploration for removal of the infected abdominal collections. Subsequently, the patient developed septicemia and died on 11.8.2004. The complainant further alleged that at DMCH the Autopsy [post mortem (PM)] was not done despite requests. PM was denied because according to the OP-3, after re-exploration the cause of death was already confirmed. The DMCH did not hand over complete medical record, but only the short discharge summary of about 12 lines was issued by OPs-3 & 4.

4. Being aggrieved by the negligence during the treatment of initially at Preet Hospital, Patiala and thereafter at DMCH, Ludhiyana causing death of patient the patient's husband Harnek Singh along with his son and daughter filed the consumer complainant before the State Commission. The complainants prayed compensation of Rs.62,85,160/- from the OPs for the medical negligence and deficiency in service on the part of OPs.

5. The OPs resisted the complaint by filing the respective written versions. The preliminary objection was maintainability of the complaint, as the matter involves complicated questions of law and facts, therefore, for adjudication, civil court was a proper remedy.

6. The OP-1 submitted that he is a qualified as MS, surgeon and practicing in Patiala since 1981, having 22 bedded well equipped hospital. He got adequate training in Laparoscopic Cholecystectomy under the guidance of Dr. T. E. Udwadia, the father of Laparoscopic Cholecystectomy in India. Since 1985, he is performing laparoscopic surgeries in Patiala and till date he performed more than 2500 laparoscopic surgeries. In the instant case, the patient since more than one year was suffering from Chronic Cholecystitis with Cholelithiasis (gall stones). Already she was advised one year back, to undergo surgery for removal of stones. She came to OP-1 with the complaints of pain in abdomen on 13.7.2004. She was anemic and on regular medicine for hypothyroidism since three months. After evaluation and taking informed

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consent, OP-1 successfully performed laparoscopic cholecystectomy on 28.07.2004. The resected surgical specimen of gall bladder was shown to the patient's attendants and it was sent for histopathology study. A drain was put in the Morison's pouch to drain the discharge and to avoid abdominal collection. The drain was removed after 48 hours, as the discharge was serous in nature. Patient's vital parameters were normal and abdomen was soft. She passed a flatus also. On 29.7.2004, the patient was given oral fluids and water. On the next day, i.e. on 30.7.2004 at 5.30 a.m., the patient complained of epigastric pain and slight distension of abdomen. Therefore, OP-1 started conservative treatment immediately. Injectable analgesic was given, IV fluids started and the patient was put 'Nil' by mouth. The nasogastric-Ryle's tube was inserted. In the evening, patient felt slight difficulty in breathing and chest pain. The Physician Dr. Dharamvir Gandhi, after examination of the patient, at 9 PM advised referral to DMCH, Ludhiana for institutional care and further management. Accordingly, patient was shifted to Ludhiana by ambulance, along with one paramedic, Raghbir Singh Rawat from OP- 2 hospital. The OPs 1 and 2 have denied the allegations of negligence on their part during treating the patient. The patient was under care and observation of OP-1 (about 48 hours) till she was referred to DMCH.

7. OPs 3 and 4 in their written version have denied all the allegations. They submitted that the patient was given due care and best possible treatment at DMCH hospital. During cholecystectomy the iatrogenic injuries to bile duct were not easily recognized but some injuries may manifest after few days, in the form of biliary fistula or jaundice. Depending upon the nature of the discharge/leak in the drainage tube the OP-3 initially for two days started conservative treatment to settle down the patient's condition. On 03.08.2004 the patient was operated for the perforation large bowel. OP-3 denied that there was delay in diagnosis or treatment of the perforation of bowel which led to multi organ failure and death of the patient. OP-3 also denied that he told to the complainant No. 1 about death of patient was as a result of intra operative bowel injury caused by OP-1 at Patiala. The insurance companies (OP-5 and

6) have filed their written version separately.

8. The State Commission considering the evidence, and after hearing the parties on the both sides, accepted the complaint and directed the OPs 1 and 2 to pay Rs.15,44,000/- jointly and severally along with costs of Rs.10,000/-. As OPs 1 and 2 were having Professional Indemnity insurance with New India Assurance Co. (OP-7), the liability upon the insurance company/OP- 7 was fixed to pay at the extent of 12.5 lakh. And the rest amount to be paid by OPs 1 and 2.

9. Being aggrieved by the order of State Commission, these two appeals arose before this Commission.

10. We have heard arguments from the parties on the both sides and perused the material on record.

11. On behalf of the complainants, authorized representative, Dr. P. K. Kohli ( for short 'AR') argued the matter. He submitted that, laparoscopic surgery was a straight forward procedure. However, the OP-1 did not adhere to the accepted norms of laparoscopic surgery to minimize the risk of operative injuries. The OP-1 due to wrong procedure injured the bile duct as well as to the colon. During the laparoscopic surgery, there are more chances of operative injuries to the bile duct and the internal organs. The sharp and pointed end of trocar is likely to cause injuries when the bowel loop is adherent to the abdominal wall. Though, in the instant

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case, no adhesions present in the abdomen but probably the trocar was not placed carefully in the right upper quadrant of abdomen. As per the clinical notes, the site & size of the rent in the hepatic flexure of colon, clearly suggestive the procedural negligence which caused injury to bile duct and colon. He further submitted that OP-1 has not done proper resection of the gall bladder. It was done without complete retraction of the gall bladder, as the clipping was not possible at the division of Common Bile Duct (CBD). Thus, it appears that OP-1 in haste performed the surgery without proper retraction of the gall bladder; which resulted in the error in identification of the Cystic duct and the division of CBD. Also, after completion of laparoscopy procedure, the OP-1 failed in his duty to look for any inadvertent injury to intestines, and any spillage/collection of blood or bile in abdomen. It is equated with 'sponge count' recommended after each laparotomy. Thus, overall the post-operative care and monitoring was not good at the Preet Hospital (OP-2). The video recording of the procedure was not done. Though, Laparoscopy was simple surgical procedure, but in the instant case injury resulted due to complacence or over confidence or by short cuts adopted by OP-1. Post operatively, the OP-1 failed to diagnose the complications. The OP-1 neither sought any second opinion from the competent surgeon nor referred the patient in time to the higher center. The occurrence of bile duct injury was confirmed at DMCH by OPs 3 at the time of re-exploration. The colonic injury was detected by the OP-3 but the OP-1 was silent on it. The injury was caused by the insertion of the trocar negligently in the right upper abdomen by the OP-1 during the procedure; and it is evident from the nature and location of the rent in the hepatic flexure of colon.

12. Secondly, after the procedure, the patient was not properly monitored. The vital signs, charts for fluid intake-output and medicines were not properly maintained, but all got mixed up. The temperature recordings have been made only 4 times during the span of 3 days. The Respiratory rate, Oxygen saturation and abdominal girth measurements were not done regularly. Thus, it was gross carelessness of the nursing staff that did not follow the post- operative orders. The nature and type of the drained fluid was not recorded. OP-1 has admitted about the excessive biliary discharge, thus it confirms the bile duct and/or bowel injury. The fluid initially was serous then changed to greenish-yellow which was an indication of the intestinal contents. However, OP-1 ignored those findings and gave false assurance to the complainants that everything was fine. It was further argued that pre-operatively inadequate investigations were conducted by OP-1. He insisted to get USG done from one specific center; however OP-1 was reluctant to advise USG post operatively to rule out the complications. The patient's clinical picture and by the quantity and appearance of drained fluid were strongly suggestive of bile duct injury. To rule out biliary duct injury, proper assessment could have done by good USG study, CT scan or MRCP but it was not advised by OP-1. Similarly ERCP was necessary to confirm the site and extent of the bile duct injury or the transaction of the CBD. The OP-1 failed to detect the intra-abdominal collection, which could have been removed and cleaned the peritoneal cavity at the earlier stage. The fluid culture & sensitively (C/S) test of the drained fluid was not done.

13. Dr. Atul Mishra (OP-3) himself was present with the counsel. We have permitted him to argue the matter. The OP-3 admitted that he did not visit the patient at the time of admission because; in the emergency hours team of competent doctors working under his unit were doing everything for the patient. The patient was admitted in emergency on 31.7.2004 at 12.10 a.m. and attended immediately by the Senior Resident (SR) of his unit. The patient was started

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with Oxygen, IV fluids with anti-biotics and other medication. The emergency investigations like Complete Hemogram, RBS, RFT, LFT, Amylase, Lipase, LDH, ABG, Plain X-ray chest and ECG were done. Central line was started and hourly monitoring of CVP done. The patient was given injections of Cefexime, Klox, Metrogyl, Rantac, Voveran, Vitamin K and Perinorm. On examination there was no abdominal guarding or rigidity. The dressing was changed. Once the patient was hydrated, improved oxygenation and stabilized, then the CT scan of abdomen with oral and IV contrast was performed at about 1.30 a.m. There was no fever, the blood count was normal. The patient was monitored hourly for Pulse, BP, Temperature and Oxygen saturation. On the same day patient was given two units of Fresh Frozen Plasma (FFP) to correct the Coagulopathy. As per the CT scan report the small and large intestines were normal. There was no contrast leak and the hepatic flexure of colon was well opacified with contrast. Thus, perforation of hepatic flexure was ruled out. There was no dilatation of intrahepatic biliary radicals. She was confirmed to have external biliary fistula. The CT scan showed minimal ascites (fluid collection about 19 ml) and the fluid cytology did not show fecal material, pus cells, debris. The fluid analysis (drawn from the drain tube) showed normal cell count and no pus cells. It was bilious in nature only. The pneumoperitonium in CT scan was attributed to the residual pneumoperitoneum after the previous laparoscopy done by OP-1.

14. The learned counsel for OPs submitted that at the time of admission to DMCH, the patient was suffering from multiple aliments like Pneumonia, fluid in chest, high BP, low thyroid function, low hemoglobin, electrolyte imbalance, high pulse rate & breathing rate, low blood O2 level and Coagulopathy. Therefore, immediate surgical intervention i.e. diagnostic laparoscopy would have caused more harm to the patient, this it was not advised. The early surgical intervention was necessary only when there are signs of perforation or peritonitis or sepsis. In this case at the time of admission patient did not show any such signs. Firstly, the infection should be treated; therefore patient was started with conservative treatment for external biliary fistula. Initially patient's condition was improved, but on 02.08.2004 evening, she became critical, showed signs of colonic perforation. Patient had high grade fever with sudden increase in abdominal distension and the bilious drain fluid became feculent & foul smelling. It may be due to the delayed perforation at necrosed of wall of the colon and possibly due to thermal injury during first surgery. Consequently, the total blood (WBC) count was increased to 19000/cmm. Therefore, the emergency laparotomy was performed. The OP-3 and 4 denied that they have waited carelessly which caused more abdominal collection and the spread of infection (peritonitis) further led to septicemia. The patient was under proper care and treatment at DMCH for 7-8 days. According to DMCH the patient suffered biliary peritonitis and septicemic shock. The patient he died on 11.08.2004 due to acute renal failure leading to respiratory and cardiac arrest. As, the complainant wished not to get autopsy done on the patient. The OPs - 3 & 4 submitted that they never denied for autopsy. Though there was no request from the complainant the DMCH provided the death summary and medical record to the patient's attendant.

FINDINGS

15. Medical record of Preet hospital (OP-2) and DMCH, Ludhiana (OP-4):

We note, on 30.07.2004, at 11.30 PM the patient was admitted in emergency in DMCH under Dr. Amit Mishra's (OP-3) unit. The senior resident of surgery examined the patient and advised laboratory and radiological (CT-abdomen) investigations. At 12.30 am,(31.07.2004)

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started O2 supply with antibiotics and other medicines. For the fluid replacement, a central line was put at 1.20 am. and patient was monitored hourly. Dr. Atul Mishra (OP-3) examined the patient at 9 AM. The CT scan report did not suggest any perforation to small or large intestine and the CT contrast study confirmed that the transverse colon and hepatic flexure were well opacified without any leak, Thus, there was no signs of peritonitis also at the time of admission. The OP-3 made a diagnosis as biliary leak with external biliary fistula without major bile duct transection or obstruction. Based on the findings, for initial two days OP-3 gave conservative treatment. The AR vehemently argued that to find out bile duct injury, OP- 3 did not consider or perform specific investigations like Fistulogram, Magnetic Resonance Cholangio-Pancreaticography-(MRCP), Percutaneous Transhepatic Cholangiography-(PTC), Endoscopic Retrograde Cholangio-Pancreaticography-(ERCP), Technicium-Hydroxy Imino diacetic acid -(Tc - HIDA) Scan. Admittedly, we agree that these investigations are helpful, but the patient was serious at the time of admission, clinically there were no signs of perforation/peritonitis. Therefore, the treating doctor has to take a decision after the risk vs benefit analysis. If the risk out-weighs the benefit, then such investigations should be avoided.

16. The submission of AR that the OP-3 instead of following sound surgical principles & professional ethics, tried to evade to act immediately, for malafide reasons. However, the OP-3 performed the re-exploration surgery after six days of the biliary and colonic injury, which should have been done by him on 31.7.04 itself after assessing clinically and based on the CT scan. We do not agree with this submission because as discussed supra there were no signs of perforation/peritonitis, thus OP-3 initially adopted conservative management, it is an accepted standard of practice.

17. The authorized representative (AR) further submitted that, the doctrine of res ipsa loquitur is applicable in the instant case. According to the AR, commonly the operating surgeon is aware that the injury bile duct and/or colon during laparoscopic surgery are avoidable, if due precautions are taken. And, in case such injury occurs and timely detected, it is treatable. In the instant case the patient was unaware about the events that occurred during the operation and therefore the OPs must prove their diligence, skills adopted during the surgery and gave proper post-operative care per standards. Thus, the burden of proof shifts on to the OPs.

We do not agree about the applicability of principle of res ipsa loquitur in the instant case. The patient was operated by OP-1 on 28.07.2004 and the injuries were detected after 6 days. Thus, it was a case of delayed manifestation of biliary or bowel injury. On the date of admission to DMCH on 30-31.07.2004, the patient's clinical findings, the relevant laboratory test and CT report categorically ruled out any evidence of injury or perforation/ peritonitis. Thus, we do not accept that OP-1 arrogantly ignored the signs & symptoms of biliary & fecal peritonitis which was alleged to be started from the day one. The complainant relied upon the version of paramedical staff of OP- 2 hospital who informed about the alleged operative injury. There is no evidence to that effect.

18. In context to res ipsa loquitur, we would like to refer the observation made by Hon'ble Jacob Mathews V State of Punjab (2005) CPJ 9 SC,

No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single

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failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitur is not of universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors. Else it would be counterproductive. Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur.

19. We further disagree with the submission of AR that, the OP-1 did not refer the patient to any qualified & experienced surgeons in Patiala, but insisted with assurance to go to OP-3 as a best surgeon and the OP-4 was the best hospital in northern India to handle such cases. The highest standard of skill & care were expected from OP-3 & 4, but in the present case the care provided to the complainant's wife at DMCH was very poor & deplorable standards. It should be borne in mind that, the treating doctor shall take the decision with his acumen and wisdom, based on several factors in the interest of patient. We note that, OP-1 is a qualified and experienced surgeon. After laparoscopy patient was under his observation for two days. The doctor will choose the mode of treatment and need for referral to higher center. The interference of patient's attendants will be detrimental in such situation. The patient developed complications in the evening on 30.07.2004 after due consultation with the physician Dr. Dharamvir Gandhi referred the patient to OP-3 at DMCH at 9 PM. We do not find any deficiency in service or ill intention of OP-1,it was a timely and proper medical reference for institutional care.

20. On careful perusal of medical record of DMCH , we note on 01.08.2004 patient was afebrile, abdominal distension decreased and bowel sounds present. The chest condition remained same with evidence of hypoxia (PO2-57, SPO2-73%). The patient was seen by Dr. Wig, the HOD of Chest and advised for maintaining O2 level and to put the patient on Non- invasive ventilation (NIV). The patient was shifted to Pulmonary Critical Care Unit (PCCU). Her antibiotics were stepped up. Therefore, it was risky to shift the patient out of PCCU for the unwanted investigations.

There was no obstructive lesion or proximal dilation. The CT showed non-dilated intrahepatic biliary channels. The patient also showed coagulopathy, therefore the PTC was ruled out. The biliary fistulas usually close spontaneously without any surgery if there is no distal obstruction. In the morning on 02.08.2004, patient's abdomen was soft, no distension and normal bowel sounds. The drain showed 300 ml bilous output. The ERCP was not done because of bad chest congestion of the patient. She was maintaining O2 saturation on NIV, but whenever NIV was removed patient was showing hypoxia; thus, ERCP was not possible. Moreover, the ERCP was contra-indicted due to coagulopathy and deranged values of PT, INR & APTT . The patient was not in fit for the diagnostic laparoscopy also. Therefore, in our view subjecting a sick patient for number of invasive tests was not warranted and the decision of OP-3 was not faulty.

On 02.08.2004 evening patient had sudden deterioration in general condition, There was fall in BP (80/60), high grade fever and sudden increase in abdominal distension. The nature discharge from bilious changed to feculent and foul smelling. The patient was diagnosed to have developed bowel leak with peritonitis, and she was operated on 03.08.2004 at 4,45 PM.

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No acive biliary leak was found. The repair of colonic perforation and proximal diversion ileostomy was done. As the patient was very sick to undergo definitive repair, therefore it was decided to do after resolving the infection in 6-8 weeks. Thereafter, from 04.8.2004 to 10.08.2004 the patient was treatment at DMCH under OP-3 and other specialists like nephrology, cardiology. Patient died on 11.08.2004 due to cardiac arrest at 1.50 AM.

21. It is well established through a catena of judgments of Hon'ble Supreme Court which discussed the issue of medical negligence. The basic elements of Negligence are (a) Duty of Care (b) Breach of Duty (c) Proximate Cause (Causa Causans) and (d) Damage. Therefore, the claimant to succeed in the case of medical negligence shall satisfy all these criteria. In the instant case we do not find the complainant conclusively establish all these criterias.

22. The Hon'ble Supreme Court in, Kusum Sharma & Others vs Batra Hospital & Medical Research Centre and others, (2010) 3 SCC 480, in its relevant paragraphs (50, 51, 52, 72,73,74,78 79 and 81) observed that,

50. Medical science has conferred great benefits on mankind, but these benefits are attended by considerable risks. Every surgical operation is attended by risks. We cannot take the 25benefits without taking risks. Every advancement in technique is also attended by risks.

51. In Roe and Woolley v. Minister of Health (1954) 2 QB 66, Lord Justice Denning said :

`It is so easy to be wise after the event and to condemn as negligence that which was only a misadventure. We ought to be on our guard against it, especially in cases against hospitals and doctors. Medical science has conferred great benefits on mankind but these benefits are attended by unavoidable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking the risks. Every advance in technique is also attended by risks. Doctors, like the rest of us, have to learn by experience; and experience often teaches in a hard way."

52. It was also observed in the same case that "We must not look at the 1947 accident with 1954 spectacles:". But we should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong. Doctors would be led to think more of their own safety than of the good of their patients. Initiative would be stifled and confidence shaken. A proper sense of 26proportion requires us to have regard to the conditions in which hospitals and doctors have to work. We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure.

(emphasis supplied)

It further observed that,

72. The degree of skill and care required by a medical practitioner is so stated in Halsbury's Laws of England (Fourth Edition, Vol.30, Para 35):-

36 "The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what

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the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.

Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care."

73. In Hucks v. Cole & Anr. (1968) 118 New LJ 469, Lord Denning speaking for the court observed as under:-

"a medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field."

74. In another 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...".

78. A doctor faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. This court in Jacob Mathew's case very aptly observed that a surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient.

79. Doctors in complicated cases have to take chance even if the rate of survival is low.

81. It is a matter of common knowledge that after happening of some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. A professional deserves total protection. The Indian Penal Code has taken care to ensure that people who act in good faith should not be punished. Sections 88, 92 and 370 of the Indian Penal Code give adequate protection to the professional and particularly medical professionals.

(emphasis supplied)

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23. In Jacob Mathew's Case, (2005) SCC (Crl.) 1369, Hon'ble Supreme Court observed that the higher the acuteness in emergency and the higher the complication, the more are the chances of error of judgment. The court further observed as under:-

"25......At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice 39 prevalent nowadays is to obtain the consent of the patient or of the person in-charge of the patient if the patient is not be in a position to give consent before adopting a given procedure. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure."

It further observed that:

"If the hands be trembling with the dangling fear of facing a criminal prosecution in the event of failure for whatever reason - whether attributable to himself or not, neither can a surgeon successfully wield his lifesaving scalpel to perform an essential surgery, nor can a physician successfully administer the life-saving dose of medicine. Discretion being the better part of valour, a medical professional would feel better advised to leave a terminal patient to his own fate in the case of emergency where the chance of success may be 10% (or so), rather than taking the risk of making a last ditch effort towards saving the subject and facing a criminal prosecution if his effort fails. Such timidity forced upon a doctor would be a disservice to society".

24. The complainant's allegations against OP-1 and OP-3 are not sustainable. After laparoscopic cholecystectomy the patient was under observation of OP-1 for two days. As the complications cropped up, patient was referred to DMCH. It was not a deviation from normal practice. The decision was taken in the interest of patient's institutional management. Thereafter, at DMCH the patient was initially treated by OP-3 Dr. Atul Mishra conservatively and re-exploration was done at proper time. In Jacob Mathew's case (supra) it was further observed that:

A mere deviation from normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere accident is not evidence of negligence. So also an error of judgment on the part of a professional is not negligence per se. Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice prevalent nowadays is to obtain the consent of the patient or of the person incharge of the patient if the patient is not be in a position to give consent before adopting a given procedure. So long as it can be found that the

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procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure.

The Hon'ble Apex Court further observed that:

"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."

(emphasis supplied)

25. The Hon'ble Supreme Court made the following observations in the case - Achutrao Haribhau Khodwa and others versus State of Maharashtra and others (1996) 2 SCC 634, as follows:

"The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession, and the Court finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence."

(emphasis supplied)

Similar discussion was made in the recent decision on 1.10.2018 of Hon'ble Supreme Court in the Civil Appeal No.3971 of 2011 Dr. S.K. Jhunjhunwala Vs. Mrs. Dhanwanti Kumar & Anr.

26. It should borne in mind that doctor often choose or adopt a procedure which involves higher element of risk honestly believing the greater chances of success. The mode and method to be adopted would depend on the facts and circumstances at that time. The doctor cannot be questioned or faulted under such situation, even if it results in a failure. Thus it is crucially important to decide whether there was any negligence from the treating doctors while treating the patient. In the instant case although the patient may have suffered an unexpected injury, it does not necessarily mean that OP-2 or OP-3 were negligent. An injured patient may automatically assume and allege that the treating doctors failed to satisfy the standard of care. We came know about the various aspects of laparoscopic cholecystectomy through the medical literature and the books on Surgical Gastroenterology. The Post-Operative ( cholecystectomy) complications are 'Concealed injury to organs, Delayed biliary stricture, Delayed faecal fistula,

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Port site metastasis and Residual air (Referred chest or shoulder pain). In the instant case the patient developed the delayed biliary fistula and further the concealed injury.

27. Cholecystectomy, either open or laparoscopic, is one of the commonest operations performed by the general surgeon, gastrointestinal (GI) / hepatobiliary (HPB) or laparoscopic surgeon. It is now well-established that laparoscopic cholecystectomy is associated with a two to three times higher risk of bile duct injury (BDI) about 0.5% than open cholecystectomy Moreover, BDI during cholecystectomy is a common cause of litigation of medical negligence against the surgeon. The complainant brought a medical negligence action against the surgeon Dr. Gurmit Singh (OP-1) and the OP-3 at DMCH. In our view OP-1 and OP-3 were not negligent in their duty

28. Based on above discussion, and applying the precedents from the Hon'ble Apex Court (supra), the medical literature, and the entire medical record, in our considered view, the complainants failed to conclusively establish negligence or deficiency on the part of the OPs. Consequently, the impugned Order dated 24.01.2008 of the State Commission is set aside; the FA 108/2008 filed by complainants is dismissed and the FA 120/2008 filed by the OPs is allowed; the complaint is dismissed.

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DR. S.M. KANTIKAR

PRESIDING MEMBER

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DINESH SINGH

MEMBER

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