FIRST APPEAL NO. 2210 OF 2018
DR. JANAK RAJ ARORA & ANR.Versus Decided by the Hon’ble NCDRC on 31 January 2024
FACTS: On 11.06.2014, Kamaljit Kaur, aged 38 years, sought medical attention at OP-1-Janak Surgicare Hospital. She was examined by OP-2 Dr Janak Raj Arora, who diagnosed her with Ch. Cholecystitis and Cholelithiasis, recommended laparoscopic Chole/Open Chole and certain biochemistry tests and abdominal ultrasound. On 12.06.2014, an ultrasound of her abdomen revealed 5 mm multiple stones in the gallbladder, the patient was admitted to OP-1-Hospital in Patiala, as directed by OP-2 and a laparoscopic cholecystectomy was scheduled on 13.06.2014 at 05:30 AM. The procedure was performed in OP-1 Hospital by OP-2, with assistance from OP-3- Dr. A.S. Kapoor. It was alleged that, during the surgery, she suffered a cut injury to the portal vein, requiring conversion of laparoscopic surgery to an open procedure. Portal vein injury resulted in leakage of blood into her abdominal cavity, leading to severe deterioration in her condition. Due to lack of facilities, she was taken in an ambulance to PGI, Chandigarh for vascular repair, accompanied by two OT Assistants. In transit, her condition worsened, prompting a decision to admit her to Fortis Hospital, Mohali where a vascular surgeon performed surgery to rectify the portal vein injury. Due to delay in vascular repair and significant blood loss she died on 14.06.2014. OPs erroneously communicated that no vascular surgeon was accessible in Patiala, though such facilities were in fact available at Amar Hospital, Patiala but OPs were negligent in not referring the patient to Amar Hospital or engaging a doctor from said hospital.
The negligence of OPs during the surgery resulted in the occurrence of the portal vein injury, a fact acknowledged by the OPs before the Medical Board. OPs denied negligence in procedure, asserting that the conversion to open surgery was necessitated by frozen adhesions in Calot’s Triangle, making laparoscopy infeasible. The learned State Commission partly allowed the Consumer Complaint awarding Rs.40,00,000/- (Rupees forty lakh only), as compensation, in lump sum for loss of mother, her love, affection, future care, mental agony, harassment etc. to complainants Nos.2 and 3; being her minor children and for loss of love and affection, mental agony and harassment to complainant No.1; being her husband including the medical expenses incurred by them on the treatment of the patient and including litigation expenses, to deposit Rs.15,00,000/- (Rupees fifteen lakh only), each, in the shape of FDRs in a nationalized Bank, in favour of the minor complainants i.e. complainant Nos.2 and 3, which may earn maximum interest and complainants Nos.2 and 3 and entitled to withdraw the amount of interest accrued on the said FDRs, from time to time, for their daily pursuits, through their guardian, and entitled to withdraw the entire outstanding amounts of the FDRs, when they will attain the age of 21 years. The rest of the amount of Rs.10,00,000/- to complainant No.1.
FINDINGS IN FIRST APPEAL: The Appellants contested that the injury was out of a known complication, challenged the timeline of events, and raised concerns about the authenticity of documents. The patient was admitted in OP-1 Hospital and OP-2 assisted by OP-3 and other staff performed the procedure to remove her gallbladder by laparoscopic cholecystectomy. During the procedure, it was converted into open surgery. It is also an admitted position that during the procedure, she sustained portal vein linear cut injury, and it started bleeding into the system. The OPs clamped the injury and attempted to stop bleeding but could not repair and the bleeding persisted. As it was beyond OP-1 hospital to handle the situation that has emerged and the condition of the patient started deteriorating, she was referred to PGI Chandigarh. On the way, her condition further deteriorated, and she was admitted in the nearest Fortis Hospital, Mohali. There, a team of doctors led by a vascular surgeon performed the surgery.
However, the patient died the very next day due to delay in bringing her to the hospital and excessive bleeding sustained in the OP-1 hospital. The main issue is whether portal vein linear cut injury caused to the patient is a known and recognized complication of the surgery, which was explained to her and the patient was prepared, or a deviation from the standard medical care which resulted into medical negligence and death To remove the gallbladder, the surgeon frees it from the liver by clipping and cutting the cystic duct and the cystic artery, the main blood supply to the gallbladder. Clipping and cutting of the common bile duct is not part of the procedure and, if not repaired, it will result in serious harm to the patient. It is undisputed that OP-2 is the surgeon who performed both laparoscopy and open cholecystectomy and the other staff of OP-1 assisted him, within the scope and course of their employment. The OPs contested that the patient accepted the complications and risks inherent in the procedure. These were explained to her prior to the surgery and her father consented. OPs vehemently denied any negligence on the part of the surgeon and assisting staff. The injury to the portal vein is a possible outcome during such surgery and it does not by itself constitute any negligence. It was not in dispute that the decision to remove her gallbladder by cholecystectomy procedure was correct. Complainants asserted that no one explained the nature and risks prior to her operation. While she was to undergo a laparoscopic or “laser operation”, he was surprised to know that it was unsuccessful and was converted to open surgery. In the present case, initially it was the duty of the Complainant to prove that the said injury to the deceased was due to negligence in giving her treatment by OPs and that there was failure on the part of OP doctors and/or other staff to adhere to ordinary level of skill and diligence possessed and exercised by them. While medical professionals are not expected to be of the highest possible degree of professional skills always, but they are bound to ensure reasonable skill and care. The maxim ‘res ipsa loquitur’ is used to describe the proof of facts which are sufficient to support an inference that the OPs were negligent and to establish a prima facie case against them. It is not a presumption of law, but a permissible inference, which may be drawn, if upon all the facts, it appears to be justified. It is invoked in the circumstances, when the known facts relating to negligence consist of the occurrence itself or where the occurrence may be of such nature as to warrant an inference of negligence. The maxim alters neither the incidence of onus nor the rules of pleading. In the present case, it is undisputed that the said injury was sustained during her admission and the course of surgery at the OPs hospital and she died consequently within a day. The Complainant has been able to discharge the onus of proving on a balance of probabilities, the negligence averred against the OPs. The deceased was of 38 years of age with two children of 15 years and 8 years, at the time of her death. It is established that the death of Mrs Kamaljit Kaur who sought medical attention at OP-1 Hospital on 11.06.2014 was operated upon for laparoscopic cholecystectomy on 13.06.2014 and the procedure was performed by OP-2, with assistance from OP-3- Dr. AS Kapoor. During the surgery, she suffered a cut injury to the portal vein resulting in leakage of blood into her abdominal cavity, leading to severe deterioration in her condition. She was rushed to PGI, Chandigarh for vascular repair. In transit, her condition worsened, prompting a decision to admit her to Fortis Hospital, Mohali where a vascular surgeon performed surgery to rectify the portal vein injury. Due to delay in vascular repair and significant blood loss she died on 14.06.2014.
HELD: Had the surgery cholecystectomy been performed with due care and professional diligence, her portal vein would not have sustained the cut injury. Therefore, the medical negligence on the part of OP-2 and OP-1 hospital staff is substantially established.
The FA No. 2210 of 2018 is, therefore, Dismissed.
