Gall bladder mistakenly removed instead of stones: NCDRC orders Rs 3 lakh compensation holding Rajasthan Hospital guilty of medical negligence

Dr Inderjit Singh, Presiding Member of NCDRC set aside the order by the State Commission issued against the verdict of the District Forum and observed that the order of District Forum was sufficiently reasoned one to conclude medical negligence on the part of the Hospital.

In 2016, a minor was brought to the hospital for stomach pain. Following an examination, including a sonography, it was revealed that the patient had stones in the gall bladder and kidney. The hospital advised surgery for the removal of stones only in the gall bladder. The operation was performed and the patient was discharged after a couple of days. It was alleged that during the surgery, an extra excision occurred in the gall bladder, resulting in the collection of blood and the formation of pus. The patient was readmitted after a few days due to deteriorating condition. Tests conducted during the readmission revealed the absence of stones in the gall bladder but the presence of stones in the kidney. The respondent hospital doctor prescribed medicines and advised rest at home.

Later, the patient was taken to Sawai Madhopur General Hospital due to a serious health condition and was hospitalized for three days. The patient was subsequently referred to Mahatma Gandhi Hospital in Jaipur, where intensive medical treatment was provided. A sonography conducted revealed that the gall bladder had been removed. It was alleged that during the previous surgery at the Respondent Hospital, the doctor mistakenly removed the gall bladder instead of removing the stones. As a result, the patient had to undergo treatment at various hospitals for the removal of kidney stones and other related issues.

The patient's father filed a complaint before the District Commission praying for reimbursement of Rs. 4,50,000/- from the hospital for medical expenses incurred and for compensation towards mental agony and cost of litigation.

The complainant contended before the District Forum that the Hospital told that there is stone in gall bladder and kidney, for which operation have to be done. The Hospital took out stone from gall bladder by operation, but due to their carelessness, extra incision occurred to the gall bladder and intestine got cut resulting in collection of blood and formation of pus, which worsened patient’s condition, leading to his taking treatment in different Hospitals. Hence, there was/is deficiency in service on the part of Hospital.

Meanwhile, the hospital argued that nothing was done to intestines. Further, it is admitted that there was a stone in the kidney also but patient had no difficulty due to this, hence that was not treated. All investigations, including sonography was done, but no problems with respect to the operation was found on the readmission of the patient. It further claimed that the patient voluntarily left without telling the Hospital. Denying any connection with the treatment done to the patient at other hospitals, the Respondent hospital submitted that, "As per CECT Scan report whole abdomen of S.M.S. Hospital, it is recorded that STENT is seen CBT in the stomach of patient, which means patient while admitted in Mahatma Gandhi Hospital, Jaipur, was operated upon and STENT CBT was put in his stomach."

The District Forum after perusal of records of Swai Madhopur Hospital, Mahatma Gandhi Hospital, Jaipur and Man Singh Hospital, Jaipur, came to a conclusion that Respondent Hospital was careless/negligent in operating the patient for gall bladder due to which the patient had to be admitted in these Hospitals, and hence deficiency in service on the part of Respondent Hospital is established. Accordingly, District Forum directed the hospital and the insurance company to pay a compensation of Rs.3.00 lakh to the complainant within 2 months, failing which, it would carry interest @9% p.a. In addition, District Forum awarded Rs.10,000/- towards mental.

Aggrieved by the said order of District Commission, the hospital and the insurance company filed separate appeal before the Rajasthan State Consumer Disputes Redressal Commission, Jaipur. The State Commission set aside the order of District Commission and accepted the appeal of the Hospital and the Insurance Company.

Before the State Commission, the Respondent Hospital contended that District Forum in its order has not discussed as to how and what was medical negligence. Complainant has not been able to prove medical negligence. Complainant on the other hand had contended before the State Commission that due to medical negligence on the part of Respondent Hospital there were wounds in the intestines below the gall bladder and due to wrong operation by the doctor, complainant had to spend money on his treatment in the other hospital, which constitutes deficiency in service on the part of Respondent Hospital.

The State Commission observed that the Complainant has not clarified as to whether was the stent CBD inserted after operation as scan shows that there is a stent CBD in the stomach. "If the complainant had produced treatment summary at Mahatma Gandhi Hospital, this fact could have become clear. No medical negligence got revealed from the medical records of Govt. Hospital Swai Madhopur and S.M.S. Hospital. Complainant has not produced any record to show that during the operation by the Hospital the intestine was infected by a cut," the State Commission noted.

It concluded that complainant failed to prove medical negligence on the part of the Hospital and the findings of District Forum are not based on facts and evidences.

Aggrieved, the complainant moved a revision petition with the apex consumer court and argued that he was not informed by the Hospital that Gall Bladder was also removed while discharging and this material fact has been ignored by the State Commission. It further argued that, "The only point on which findings of District Forum is dismissed by the State Commission is ‘Stent CBD was found’, which was not mentioned in the complaint. To get relief from pain and to save the life and to cater to the injury caused by medical negligence of Respondent Hospital, this ‘Stent CBD’ was inserted. The observations of State Commission on this point is lopsided and less than convincing."

After going through the orders of State Commission, District Forum, various medical records and all other relevant records, the Commission observed;

"The Petitioner/Complainant has placed on record before the District Forum sufficient facts and evidence to establish medical negligence on the part of Respondent Hospital. This order of District Forum is sufficiently reasoned one to conclude medical negligence on the part of Respondent Hospital. The only thing which complainant was not able to explain fully was existence of ‘Stent CBD’. Merely on this ground, State Commission was not justified in setting aside the orders of District Forum. The medical negligence on the part of Respondent Hospital is to be seen for the operation done by Respondent Hospital for removal of gall bladder/Stone from the gall bladder on 13.05.2016, which has resulted into subsequent complications. We tend to agree with the contentions of Complainant in this regard."

The Commission further said that it was held by;

"Hon’ble Supreme Court in Syed Akbar Vs. State of Karnataka (1980) 1 SCC 30 and as retreated/quoted in Jacob Mathew Vs. State of Punjab & Anr. (2005) 6 SCC 1 that there is a marked difference as to the effect of evidence viz proof. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt. Degrees of negligence in criminal negligence and negligence under civil law are jurisprudentially different. It is only to fasten liability in criminal law that degree of negligence has to be gross or of higher degree. Negligence, which is neither gross or of higher degree may provide a ground for action in civil law."

Referring to Savita Garg Vs. The Director, National Heart Institute (AIR 2004 SC 5088) case in Hon’ble Supreme Court, the Commission eventually allowed the revision petition and set aside the order issued by the State Commission, and restored the order of the District Forum. It noted;

"The RP is allowed, orders of State Commission dated 18.11.2021 in FA/663/2019 and FA/666/2019 is set aside and order of District Forum dated 11.06.2019 in CC 378/2016 is restored. In addition, Petitioner/Complainant is allowed litigation cost of Rs.25,000/- to be paid by Respondent Hospital. Petitioner will be entitled to such interest @ 9% p.a. on all amounts payable under the orders of District Forum w.e.f. 11.08.2019 (two months from the date of order of District Forum) till the date of payment by the Respondent Hospital. Initial liability to pay all sums to the Petitioner/Complainant is on the Respondent Hospital. Respondent Hospital is free to make a claim from Respondent Insurance Company under the Policy held by it with respect to its liability under the order of District Forum read with the present order of this Commission."

To view the original order, click on the link below: