CBD injured during Lap Cholecystectomy: HC absolves surgeon of medical negligence, quashes FIR

Jammu: Reiterating that only experts can certify whether there was any negligence on the part of the doctor or not, the Jammu wing of Jammu and Kashmir High Court recently exonerated a Government Hospital doctor from charges of medical negligence while removing gallbladder stone of a patient.

The family of the patient alleged that the patient had died after the operation because the concerned doctor had negligently conducted the Lap Cholecystectomy and injured the Common Bile Duct.

However, the HC bench dismissed the plea after noting that the expert committee and special medical board had not found any negligence by the doctor. Apart from dismissing the plea, the bench has also ordered to quash FIR and criminal proceedings initiated against the doctor.

"...the writ petition is found to be devoid of any merit, hence dismissed along with connected applications," observed the HC bench comprising Justice Wasim Sadiq Nargal.

The concerned patient was detected with Gallbladder stone and thereafter he was admitted to Government hospital Sarwal back in 2013. Consequently, the patient was operated for removal of stone by laser procedure by the Consultant Surgeon in the Sub District Government Hospital, Sarwal.

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It was alleged by the petitioners that the concerned doctor injured the CBD (Common Bile Duct) of the patient. As a result, the patient suffered serious problems and he was referred by the doctor to Medical College Hospital, Jammu, where he got admitted in Emergency. Later, the patient was shifted to Government Hospital, Gandhi Nagar. 

As per the petitioners, the patient died because of the criminal negligence of the concerned Consultant surgeon of Sarwal Government hospital. Therefore, a complaint was filed before the Chief Judicial Magistrate, Jammu, who had directed the Station House Officer, Police Station, Bakshi Nagar for investigating the matter. An application was also filed seeking direction to the SHO for filing the status report. Even an application for initiating contempt proceedings against the SHO was filed, but nothing happened. Therefore, the petitioners approached the High Court bench and sought necessary action against the concerned doctor and also demanded a compensation for losing bread earner of their life due to the alleged medical negligence of the doctor.

On the other hand, the Government authorities in their reply referred to the report of the Inquiry Committee. The committee after going through all available records and also tafter recording the statements of various functionaries, mentioned in the report that the concerned doctor had conducted Lap Cholecystectomy on the patient after conducting all the routine and specific investigations.

The committee opined in its report, "From the perusal of records from Govt. Hospital Sarwal, Govt. Medical College Hospital, Jammu, Govt. hospital Gandhi Nagar, Jammu, the reply submitted by Dr. Shyam Kumar Gupta, who is a trained laparoscopic Surgeon who has sufficient experience in the conducting laparoscopic surgery the CBD may have been injured during surgery which do happens in the best centres of the world also. Since there were lot of adhesions of omentum around calot's triangle, the injury to the CBD can happen. The doctor tried to manage the patient as per standard protocols of the CBD injury in his set up but once it was found that things are beyond his control he shifted the patient to Govt. Medical College Hospital, Jammu a tertiary care hospital."

"Further after the patient absconded from Govt. Medical College Hospital, Jammu he was treated by a trained GI Surgeon at Govt. Hospital Gandhi Nagar, Jammu & after treatment the patient was discharged on 11-2-2013 from the hospital in satisfactory condition. After four days the patient died at his residence, the cause of which could not be ascertained as no postmortem has been conducted which could have revealed the cause of death. However in the opinion of the committee though the CBD was injured by Dr. Shyam Kumar Gupta while conducting Lap Chloecystectomy which is a known complication in complicated cases, no negligence seems to have been done as the doctor has taken due pre operative and post operative case and followed the standard protocols of treatment for saving the life of the patient," the report further mentioned.

The doctor also referred to the report of the Special Medical Board of Expert doctors, who after going through the history and relevant material reported that "there was no negligence on part of respondent No.8 and since no post-mortem/autopsy was done, so it is difficult to ascertain the reason for cause of death of Jai Kumar, who died at home on 14.02.2013 some 34 days after he was operated in Govt. Hospital Sarwal on 10.01.2013".

While considering the matter, the HC bench referred to the report of the Inquiry Committee comprising of Dr. Ramesh Gupta, Medical Superintendent, Govt. Hospital Gandhi Nagar, Jammu (chairman), Dr. Anoop Singh Manhas, State Veneriologist, DHS, Jammu (Member) and Dr. Rakesh Gupta, Consultant Govt. Hospital, Gandhi Nagar, Jammu (member). The bench noted that the Committee had opined that the patient was managed as per the standard protocol and no negligence on the part of the treating doctor was found by them. Apart from this, the bench also referred to the Special Medical Board.

Referring to these reports, the bench observed, "The question as to how and by which principle, negligence of a professional doctor is to be decided and hold him liable for his medical acts/advice is no longer res integra and settled long back by series of English Decisions as well as decision of the Supreme Court."

In this regard, the bench relied upon the Supreme Court order in the case of Bolam vs. Friern Hospital Management Committee, Bingham L.J. in his speech in Eckersley vs. Binnie, Jacob Mathew v. State of Punjab and another, and Martina F. D Souza v. Mohd. Ishfaq.

At this outset, the bench observed,

"It is settled proposition of law that only experts can certify whether there was any negligence on part of the doctor or not and it is apparent from enquiry reports conducted by the experts in the field that there was no negligence on part of respondent No.8 while treating the deceased-Jai Kumar."

Quashing the FIR against the doctor, the bench further mentioned in the order,

"Since the experts have found no negligence on part of respondent No.8, no further enquiry or investigation is required in the matter. Furthermore, the FIR lodged against respondent No.8, too, stands quashed along with proceedings emanating therefrom."

Therefore, the bench dismissed the plea and noted,

"The claim of the petitioners, when considered in the light of the two inquiry reports submitted by the expert bodies, merits rejection as the two expert bodies have exonerated the respondent No.8 and no negligence on his part was found. Even the FIR registered against respondent No.8 stands quashed. When negligence of respondent No.8 was not proved and he was given clean chit by the experts in the field, question of compensation on account of alleged negligence on part of respondent No.8 does not arise."

To read the order, click on the link below:

https://medicaldialogues.in/pdf_upload/j-k-high-court-195227.pdf

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