Perforated appendix missed, gall bladder removed: NCDRC upholds medical negligence

Consequently, the doctor referred her to a Gastroenterologist, who diagnosed bile leakage from the CBD (Main Liver Duct) based on a CT scan. He inserted a CBD stent to address the leakage, and the patient was discharged. She revisited the Gastroenterologist due to severe abdominal pain, leading to lab tests at Pioneer Imaging and Diagnostics. In consultation, the two doctors referred the patient to PGI, Chandigarh.

The patient was admitted to Daya Nand Medical College and Hospital, Ludhiana, for further treatment related to complications arising from the alleged incorrect surgery and wrongly inserted CBD stent. The patient stayed in the hospital where a scan prompted a major operation, conducted by Dr. Satap Singh Virk, M.S. (Surgery), to remove pus, excess fluid in the abdomen, and address bile leakage.

The patient was discharged but had subsequent consultations at DMC, Ludhiana, and underwent surgery due to ongoing abdominal pain, with several more visits to DMC, Ludhiana thereafter.

The patient alleged that the two doctors were negligent in diagnosing and treating her, leading to substantial expenses of Rs 2,54,000 for medicines, tests, doctors, diet, and more. The incorrect diagnosis and treatment resulted in prolonged medical care and have left her physically incapacitated and unable to carry out daily activities. Consequently, she moved the District Consumer Disputes Redressal Forum, Bhatinda seeking compensation of Rs 15 lakhs for the loss of physical health, mental stress, permanent disability, and other costs, including fees charged by the doctor and the the Gastroenterologist.

The District Forum partially ruled in the complainant's favor, holding the doctor responsible and awarding her Rs.15,000 in costs. However, they dismissed the complaint against the Gastroenterologist.

The Forum's order concluded that the doctors failed to fulfill their responsibilities. They didn't conduct necessary investigations before treatment and didn't advise the patient to seek a second opinion or consult a specialist. Despite the complainant's continued pain after 11-12 days of treatment, the doctor should have promptly referred her to a higher institute or sought a second opinion, but they neglected to do so. The delay in treatment due to this negligence caused physical and financial suffering to the complainant.

Observing that the doctor did not get any investigations done prior to treatment and thereafter he kept on sitting and showed carelessness in giving treatment to the complainant by taking it guaranteed that the problem does not relate to stent, the Forum accepted the complaint against the doctor with cost of Rs.15,000/- and directed to pay Rs.3,00,000/- as compensation which includes treatment expenses and for physical pains and sufferings which the patient suffered due to negligence on the part of the doctor.

The petitioner appealed this decision to the State Commission for enhancement of compensation, however, the State Commission disagreed with the District Forum's assessment. The State Commission concluded that the District Forum was mistaken in attributing medical negligence to the doctor, as post-operative complications can be expected.

The State Commission stated that the order of the District Forum has not appreciated the facts of the case in its proper perspective qua the doctor since (a) no doctor can assure recovery of any patient; (b) a qualified doctor following standard medical procedure in treating a patient cannot be said to be medically negligent; (c) the District Forum erred in holding the doctor to be medically negligent despite the accepted position that complications do occur in the procedures; and (d) a doctor cannot be said to be medically negligent if standard medical practice has been followed.

Subsequently, it concluded that medical negligence doesn't apply to the case. The Commission stated that instances of damage to the LBD (liver bile duct) can occur in laparoscopic cholecystectomy procedures (LCP), as stated in medical literature. Therefore, when doctors follow standard medical procedures and ethics in such cases, it's not considered medical negligence. Additionally, the District Forum had sought expert opinions, which informed their conclusions.

Challenging the State Commission's order, the petitioner eventually moved a revision petition with NCDRC.

Appearing before the apex Commission, the petitioner's counsel argued that the doctor, lacked the competence to perform laparoscopic surgery and has not provided the necessary documentation to prove his qualifications and experience in modern laparoscopic techniques. The doctor holds an MS in General Surgery but lacks specific laparoscopic qualifications, the counsel added.

Furthermore, the counsel asserted that the Gastroenterologist, lacks an MCH Degree and experience in Gastroenterology Laparoscopy Surgery, having only presented certificates for MBBS and MD in Medicine.

"The laparoscopic surgery was performed without essential pre-operative tests such as BT, CT, TLC, DLC, SGOT, SGPT, Blood Sugar, Blood Urea, and without required X-rays and ultrasound on the day of the operation. The petitioner has already incurred expenses of Rs.5,00,000 on medicines, diet, and doctors' fees," the counsel alleged.

In response, the doctor's counsel argued that when the petitioner visited the doctor with abdominal pain, an ultrasound revealed gall bladder stones. The diagnosis was Acute Cholecystitis with Cholelithiasis. After further examination and tests, including a normal Electrocardiogram (ECG) report, the doctor recommended laparoscopic surgery for gall bladder stone removal. The surgery was performed under anesthesia, and the patient was discharged in stable condition.

The claim that the doctor was not competent to conduct laparoscopic surgeries was countered by the counsel who submitted that the doctor has performed over 5000 such surgeries, including three years of experience as a Laparoscopic Surgeon at Ganga Ram Hospital, New Delhi, and membership in the pioneer group of IAGES (Indian Association of Gastrointestinal Endo-Surgeons).

Examining the case, NCDRC noted that;

"The cause of abdominal pain was found to be a perforated appendix, as diagnosed by Dr. Virk at DMC, Ludhiana. Despite various tests and investigations recommended by the doctor and later by the Gastroenterologist, the patient was repeatedly diagnosed with gall bladder stones. However, when interpreted by a specialist at DMC, Ludhiana, these tests proved to be incorrect."

The State Commission's assertion that the CBD injury is a known complication of laparoscopic cholecystectomy was put to question by NCDRC, it said;

"Importantly, the surgery conducted by the doctor, involved the removal of the entire gall bladder, whereas no prior test had suggested the need for gall bladder removal; laparoscopic surgery for stone removal was the initial recommendation based on the tests."

It further observed;

"From the foregoing it appears that the removal of the gall bladder instead of conducting laparoscopic surgery to remove the stones in the gall bladder without the consent of the complainant was incorrect and against medical ethics. No case has been made out that the surgery was essential in a life threatening situation in the written statement of the respondent nor are there any medical records brought on record to substantiate such a course of action which would have justified the removal of the gall bladder even without the consent of the petitioner of her attendant/husband. The conclusion of the State Commission that there was no medical negligence and that “CBD injury is a well-known complication of laparoscopic cholecystectomy procedure (LCP). It must be presumed that incidence of CBD injury is a well-known risk, when patient undergoes LCP. Same cannot be corelated as the act of negligence or carelessness on part of operating surgeon. Since CBD injury is known complication hence OP no. 1 cannot be said to be medically negligent in this case as OPs no. 1 (Gastroenterologist) & 2 (the doctor) were duly qualified and experienced doctors” is a conclusion that cannot be countenanced. The diagnosis of the perforated appendix was not done by respondents 1 and 2, despite various tests The State Commission has failed to return a finding on this aspect."

"The order of the District Forum has concluded that the doctor failed to refer the petitioner to a specialised hospital and that no second opinion was sought. District Forum’s order also relies upon Kishan Rao (supra) to countenance the respondent’s contention that the report of an Expert was not relied upon. In the facts of this case, the diagnosis of Dr Virk itself is one such opinion."

Considering the aforementioned discussion, The Commission held;

"The revision petition is found to have merits and liable to succeed. It is accordingly partly allowed. The impugned order of the State Commission is set aside and that of the District Forum affirmed."

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