Supreme Court of India
P.N.Gupta vs Rajinder Singh Dogra on 5 September, 2024
Author: Pamidighantam Sri Narasimha
Bench: Pamidighantam Sri Narasimha
1
2024 INSC 705 IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.7262/2012
P.N.GUPTA Appellant(s)
VERSUS
RAJINDER SINGH DOGRA Respondent(s)
JUDGMENT
1. This civil appeal arises out of the decision of the
National Consumer Disputes Redressal Commission 1 in First
Appeal No. 248/2002 dated 16.07.2012. By the said order, the
National Commission allowed the appeal filed by the respondent-
consumer by setting aside the order passed by the UT Consumer
Disputes Redressal Commission, Chandigarh 2 and directed payment
of compensation quantified at Rs. 7,00,000/- by the appellant,
with 12% interest from the date of the order till actual
payment. Questioning the decision of the National Commission,
the appellant is before us. The brief facts necessary for
deciding the appeal are as follows:
2.
Signature Not Verified
The respondent’s wife had been suffering from abdominal
Digitally signed by
pain. She went through an ultrasonography test, which showed
Indu Marwah
Date: 2024.09.19
16:54:52 IST
Reason:
1
Hereinafter referred to as the National Commission.
2
Hereinafter referred to as the State/UT Commission.
2
stones in her gall bladder. The appellant is a doctor, who
performed a surgery for removing the stones on 11.09.2000 on
the basis of an ultrasonography. However, the patient developed
various problems after the same, such as stomach ache,
constipation and vomiting, etc. The patient re-consulted the
appellant, who prescribed medications for pain and other
symptoms. However, the patient’s problems continued to persist.
Accordingly, on the suspicion of a “biliary leak”, a second
ultrasonography test was conducted. The report of this test
showed “more collection of fluid in the peritoneal cavity”. On
04.10.2000, the appellant conducted another surgery to drain
this fluid by what is known as “needle aspiration” from the
“Pouch of Douglas”.
2.1 However, the problems continued to persist, which is when
the appellant referred the patient to a liver-specialist. On
16.10.2000, the liver-specialist conducted an ECRP (Endoscopic
Cholangio Pancreatography) test. Despite the test, the
patient’s problems were found to continue. In fact, she was
found to have developed ‘contracted pancreatitis’. Eventually,
due to sepsis and multi-organ failure, the patient passed away
on 04.11.2000.
3. The respondent is the patient’s husband, who filed a
consumer complaint before the UT Commission bearing number
Complaint Case No. 6 of 2001. He claimed a sum of Rs. 8.30
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lakhs as compensation for loss of his wife’s life due to the
appellant’s medical negligence, which included sums claimed for
mental agony and other costs.
4. The appellant denied the submissions advanced by the
respondent stating that there was no medical negligence on his
part. It was argued that the appellant’s conduct in treating
the patient was in accordance with the prevalent medical
practices. His case was that he promptly tried to address the
patient’s problem after the first surgery. All the problems
were dealt with reasonable care, and that all the screening
measures were conducted before any surgery. It was submitted
that the appellant had performed multiple surgeries of similar
nature in his career and his credentials as a competent doctor
were proven by record. Lastly, he contended that removal of
gall bladder had no relation with the patient’s death.
5. The complaint was dismissed by the State Commission vide
its order dated 27.03.2002. It was of the view that the
respondent, as a complainant, had failed to discharge his onus.
That is, it was not proved that a mistake on part of the
appellant caused the death of the patient. It held that the
respondent has not proved how established medical practices
were deviated from. Mistakes, if any, were not proven to have
a nexus with the patient’s death.
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6. The respondent then approached the National Commission by
way of an appeal. In view of the allegations about non-
compliance with standard medical practice, the National
Commission had constituted a Medical Board composed of
experienced doctors from the G.B. Pant Hospital, New Delhi and
summoned a report on the matter. The said report concluded that
the appellant had taken steps which were in accordance with the
prevailing medical standards on the issue concerned. The
conclusions of the Board are reproduced here for convenience:
Sr. Query Opinion of Medical Board
No.
(1) (2) (3)
(i) Whether there was any Bile duct injury is a well
medical negligence in the known complication in
surgery of cholecystectomy patients undergoing
performed by Dr. P.N. Gupta Laparoscopic
on the patient on cholecystectomy and occurs
11.09.2000? in approximately 0.5% of
cases. This cannot be termed
as medical negligence as
some patients may have an
unsuitable anatomy as a
consequence of past
episodes of cholecystitis.
(ii) Whether there was a This point is covered vide
possibility of occurrence supra. Bile duct injury
of post-operative biliary results in biliary
leakage and, if so, what peritonitis or biloma
were the investigative formation; the standard
methods available to the investigation to detect
doctor to ascertain the this is by doing an leakage?
incidence of leakage? USG/CT examination.
(iii) Whether the patient having Biliary ascites is usually
undergone cholecystectomy not an acute event.
on 11.09.2000 could have Gradually over a period of
5
developed severe biliary time the fluid goes on
leakage (leading to Biliary accumulating. When this
Peritonitis) suddenly on reaches a significant level
one date, viz., 30.09.2000? the patient becomes aware of
abdominal distension or
pain.
(iv) Whether the management and The management of post-
surgical intervention by operative bile leak between
Dr. P.N. Gupta on 30.09.2000 to 03.10.2000
30.09.2000 and 03.10.2000 was as per standard protocol
and upto his referral of as he inserted a tube drain
the patient to the PGIMER and then referred the
on 13.10.2000 was according patient for ERCP
to the standard medical examination to Dr. N.
protocol? Nagpal.
(v) Whether there was any delay In retrospect some of the
and/ or any deficiency in investigations if done
providing medical service earlier could have detected
in that behalf, the injury /bile
particularly in respect of collection; however, from
the points at (ii) and the notes it appears that on
(iv)? clinical examination of the
patient at the time, Dr.
Gupta in his wisdom did not
feel that further
investigations were
warranted and, therefore,
prescribed medication for
symptomatic relief. This
would be medically
acceptable. In hindsight
this may be construed as an
error of judgment on the
part of the clinician but
cannot be equated with
medical negligence.
7. After considering the report in detail, the National
Commission found it to be cryptic and that it did not answer
the issue convincingly. It is in this context that the National
Commission undertook the burden to examine the matter in detail.
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It is pertinent to note that the National Commission was aware
of the limitation in re-examining the report, and proceeded
within the permissible legal limits to do the same. Learned
counsels for the parties produced detailed material. Both
parties filed medical literature to establish what the
normative standard in such cases ought to be. We don’t find it
necessary to reproduce the entire literature referred and
analyzed by the Commission. It is sufficient to consider what
literature that was cited by the parties.
7.1 The respondent had produced SLEISENGER AND FORDTRAN’S
GASTROINTESTINAL AND LIVER DISEASE, (Editors Mark Feldman,
Lawrence S. Friedman and Marvin H. Sleisenger, 7th Edition) in
support of his contention. On the other hand the appellant
produced (a) BAILEY & LOVE’S SHORT PRACTICE OF SURGERY (21st
Edition); (b) Z. Rayter, C. Tonge, C.E. Bennett, P.S. Robinson,
and M.H. Thomas, Bile leaks after simple cholecystectomy,
BRITISH JOURNAL OF SURGERY, 1989, Vol 76, October 1046 – 1048;
(c) R. Isenmann, B. Rau and H. C. Berger, Bacterial infection
and extent of necrosis are determinants of organ failure in
patients with acute necrotizing pancreatitis, BRITISH JOURNAL
OF SURGERY, 1999, 86, 1020- 1024; (d) Virendra Singh, Kartar
Singh, Prakash Kumar, Vijay Prakash, H. S. Rai, A. Kumar, B.K.
Agarwal, Endoscopic Sphincterotomy for Common Bile Duct Stones
with and without gallbladder/ ‘T’ Tube in Situ, TROPICAL
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GASTROENTEROLOGY ORIGINAL ARTICLES- Vol. 15, No. 1, 1994, Page:
19-22; and (e) Michael J. Zinner, Seymour I Schwartz, Harold
Ellis, VOLUME II MAINGOT’S ABDOMINAL OPERATIONS (10TH edition).
In addition to the literature supplied by the parties, the
National Commission deemed it fit to consider (a) TEXT BOOK OF
GASTROENTEROLOGY (VOLUME 2), (Edited by Tadataka Yamada, 5th
edition, Published by Wiley Black) and (b) BAILEY AND LOVE’S
SHORT PRACTICE OF SURGERY, (Edited by Norman S. Williams,
Christopher J. K. Bulstrode & P. Ronan O’Connell, 25th edition).
8. After a detailed scrutiny of the literature, the National
Commission summarised the position as under:
“a. Anatomically, the biliary tree consists of the
left and right hepatic ducts joining to form the
common hepatic duct, cystic duct from the
gallbladder joining the common hepatic duct to
form the common bile duct (CBD) and CBD and the
pancreatic duct joining together at the ampulla of
Vater in the D2 (second) part of the duodenum.
b. With laparoscopic cholecystectomy widely
replacing open cholecystectomy, the incidence of
post-operative bile leakage due to iatrogenic (any
adverse condition in a patient resulting from
treatment by a physician or surgeon) injuries to
the common bile duct or any of the preceding
biliary ducts has increased more than two-fold.
However, even then, it remains a “known
complication” with a low probability/incidence
(0.3% – 2.7%, i.e., 3-27 in 1000 cases of LC and
0.25% – 0.5%, i.e., 2.5-5 in 1000 cases of OC).
Bile leakage due to slipping of the ligature of or
injuries to the cystic duct is also a known
complication. Cystic stump leaks can occur from
faulty clip application, slipping of the clips or
necrosis of the cystic duct stump proximal to the
clip, probably related to diathermy injury.
c. ‘When the anatomy of the triangle of Calot is
unclear, blind dissection should stop.’ The
‘triangle of Calot’ is the triangular anatomical
8space bounded by the cystic duct – inferiorly,
cystic artery – superiorly and the common hepatic
duct – medially). ‘Dissection in the triangle of
Calot is ill-advised until the lateralmost
structures have been cleared and identification of
the cystic duct is definitive. According to SESAP
12 (produced and distributed by the American
College of Surgeons) dissection in the triangle of
Calot is the #1 cause of common bile duct injuries’
(vide
http://en.wikipedia.org/wiki/Cystohepatic_triangl
e).
d. A major risk factor for bile duct injury is the
experience of the surgeon. Bile duct injuries
appear to be much more common early in a surgeon’s
experience with the technique. Other risk factors
appear to be the presence of aberrant biliary tree
anatomy and the presence of local acute or chronic
inflammation.
e. ‘In 85% of cases, the injury declares itself
post-operatively by: (1) a profuse and persistent
leakage of bile if drainage has been provided, or
bile peritonitis if such drainage has not been
provided; and (2) deepening obstructive jaundice.
When the obstruction is incomplete, jaundice is
delayed until subsequent fibrosis renders the
lumen of the duct inadequate.’
f. ‘Careful history-taking, clinical examination
and investigations point to the cause of jaundice.
Serum biochemistry confirms the diagnosis of
jaundice with an elevated serum bilirubin,
usually > 40 µmol/1 when detectable clinically. An
obstructive pattern is recognizable in the other
liver function tests, i.e., a high alkaline
phosphatase and only mild increase in the
concentration of transaminases.’
g. For patients ‘who have anything less than a
smooth postoperative course’, diagnostic imaging
is warranted ‘even in the absence of pain, fever,
leukocytosis, or abdominal tenderness.’
h. ‘It is unnecessary and undesirable to perform
an exploratory laparotomy solely to diagnose or
drain an abdominal bile collection. Percutaneous
drainage can be as thorough, and it avoids the
morbidity of a laparotomy.’
i. After drainage of bile collection but before
starting any definitive line of treatment, ERCP
(or, MRCP) is the procedure of widest choice to
determine the source of the bile leakage and/ or
the existence of stone and/or stricture in the
biliary tree anatomy. The former has the added
advantage of therapeutic use in certain
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situation.”
9. It is in the above referred context that the National Commission
re-examined the report and came to the conclusion that the
appellant’s conduct was, in fact, negligent. In conclusion, the
National Commission’s findings may be summarized as follows;
i. During the patient’s gallbladder surgery, the appellant
switched from a minimally invasive method to an open
surgery but he could not identify the relevant artery
and the ducts. Despite this limitation, he went ahead
with the procedure.
ii. The appellant failed to issue a proper discharge summary.
iii. The doctor disregarded the repeated complaints of
stomach pain until the patient developed noticeable
jaundice. He himself admitted that the patient had been
suffering pain around that time and he was continually
aware of the same.
iv. The appellant failed to take proper consent for the
surgeries.
v. On 04.10.2000, the appellant simply tried to drain the
bile leak, but made no efforts to identify its cause.
His own handwritten notes and his referral to another
doctor demonstrate this.
vi. The appellant delayed referring the patient to the liver-
specialist by 8 days after the second surgery. Whereas,
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medical standards required him to refer her to the ERCP
procedure more promptly, especially when he was aware he
could not have carried it out himself.
vii. Compounding all the above acts of negligence, the
appellant had attempted to write the records of the case
which differed with entries made in medical records.
viii. The appellant had pleaded guilty for the delay in
referral to the liver-specialist, but had attempted to
disguise the same with legalese.
10. For arriving at its conclusions, the National Commission
applied the principles laid down by this Court in Jacob Mathew
v State of Punjab 3 to follow the standard of medical negligence
while examining the facts before it. It also considered the
decision in Samira Kohli v Dr. Prabha Manchanda & Another 4 to
analyse when a patient can be said to have given valid consent. The
conclusions of the National Commission are to the follows:
“19. In conclusion, we are of the view that the
respondent has to be held guilty of medical
negligence/ deficiency in service at least on four
counts. The respondent did not pay any attention
to the patient’s persistent complaints of pain (as
he himself admitted in his referral note for ERCP)
till she presented with visible signs of jaundice
and thus unduly delayed the diagnostic tests that
were taken only on 02.10.2000. Secondly, having
conducted an “exploratory” laparotomy on
04.10.2000, he failed to even attempt locating the
cause of the bile leakage suffered by the patient
though all standard literature (including that3(2005) 6 SCC 1.
4(2008) 2 SCC 11.
11
cited by the respondent) pointed to cystic duct
stump leak as one of the most frequent causes of
such leakage – such a situation was particularly
likely in this case because the cholecystectomy
was proceeded with by the respondent despite his
inability to clearly separate the cystic duct and
the cystic artery before their dissection, and
ligature. Further, after conducting the
laparotomy, he delayed referring the patient for
ERCP for no rhyme or reason though all standard
literature (and hence the corpus of knowledge and
practice based thereon expected of an ordinary
medical practitioner of the relevant specialty)
mandated such an investigation at the earliest
because that is the most widely recommended way of
both diagnosing and, in some situations also
treating, bile anatomy injury/ obstruction
evidenced by either stricture/obstruction in the
biliary tree or fistular leakage of bile flow. The
respondent himself knew of this, according to his
repeated admissions. It is really strange that
this failure could be pleaded as an error of
judgment. A physician can commit an error of
judgment in a case of more than one options of
(or, approaches to) diagnosis and/or treatment of
a patient’s condition and he honestly believing
one of them to be more appropriate than the other/s
for that patient, though in retrospect that may
tum out to be not so appropriate or advantageous
to the patient. Here, in this case, the respondent
knew full well that the patient must undergo ERCP
(or, an equivalent diagnostic or diagnostic- cum-
therapeutic procedure), which he was not
professionally competent to conduct. Why he
delayed this reference to a qualified
gastroenterologist/ endoscopist, or, in this case
to the PGI, when he had not even been able to
identify the patient’s biliary anatomy injury,
leave alone repair it, may be a ‘judgment’ of sorts
of this particular surgeon but certainly not an
error of judgment that an average informed and
careful surgeon would make. Finally, there is
incontrovertible evidence in the form of the
signed consent documents that the respondent did
not discharge the duty of disclosure in case of
either surgery (cholecystecto1ny or laparotomy) as
required of him under the law governing consent.
We cannot also overlook the fact that this
respondent’s recording of important treatment
records could be interpreted to suggest an attempt
at “improving” his case but perhaps that was not
deliberate. It is unfortunate that the medical
12
board did not go into these questions with the
seriousness expected of an independent body of
experts. However, there is no evidence at all that
the acts of the respondent /OP were the proximate
cause of Reeta’s eventual death and the
respondent/OP cannot be held to account for that.”
11. In view of these findings, the National Commission
proceeded to pass the following Order:
”21. …the appeal is partly allowed and the
order of the State Commission is set aside. The
respondent is directed to pay to the
appellant/complainant the sum of Rs.7 lakh as
consolidated compensation, including cost,
within four weeks from the date of this order,
failing which the sum would be liable to be
paid with interest @ 12% per annum from the
date of this order till realisation.”
12. We have heard the learned counsels for the parties. Mr. T.
Mahipal, counsel for the appellant, submitted that the National
Commission could not have substituted the opinion of medical
experts with its own. In any case, the patient was given
reasonable care. This is demonstrated by multiple
ultrasonography tests, an x-ray test, medical prescriptions,
post-operative care and a second surgery without any charges.
Furthermore, the cause of death in the patient’s report was
nowhere linked with the acts of the appellant. It was also
stated that throughout the proceedings before the State and the
National Commissions, the credentials about the appellant’s
competence were never disproved.
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12.1 Mr. Ravi Kant Sharma, counsel appearing for the respondent,
on the other hand, submitted that the patient made repeated
complaints about subsisting pain in her abdominal area. More
specifically, after her discharge on 12.09.2000, she visited
the appellant on 20.09.2000, 25.09.2000 and 30.09.2000.
However, no diagnosis was conducted by the appellant until the
patient visibly developed jaundice. Despite the second
ultrasonography report disclosing bile fluid, the cause was not
looked into. The delay in referral to the liver-specialist
compounded the patient’s problems, and hence, her death has a
direct nexus with the appellant’s acts/omissions.
13. Having considered the matter in detail, we are of the
opinion that the National Commission has not committed any
error in reaching its conclusions. The judgment of the National
Commission is well-reasoned, and depicts a detailed
consideration of all the relevant material, including the
opinion of the doctors who have been examined before it.
14. The parties had filed two different sets of medical
records. The medical records filed by the appellant did not
contain a detailed record of the surgical process, nor did they
contain the standard notings on the closure of wounds. More
significantly, the records filed by the appellant did not cite
whether the patient’s gall bladder contained any stones, for
14
which the surgery was performed to begin with. The National
Commission correctly noted that the results of the first
ultrasonography in the records filed by the appellant were
similarly doubtful. While the report showed the presence of
bile in several regions of the patient’s body, the record
described the presence to be ‘minimal’.
15. Furthermore, the appellant failed to supply the results of
the second ultrasonography, on the basis of which the second
surgery to drain the fluid was conducted. Crucially, nothing
was brought to the Commission’s notice which demonstrated that
the patient had properly consented to the second surgery. Apart
from the medical records filed by the parties, the National
Commission had considered the relevant medical literature on
the subject and whether the appellant’s conduct was in
consonance with standard medical practice. As stated
previously, the National Commission also considered the report
of the Medical Board and concluded that the Board has not
examined the medical records carefully.
16. Coming to the submissions of the parties, the National
Commission found the appellant’s submissions to be unreliable.
It is seen that the appellant’s submissions contradicted the
liver specialist’s submissions, insofar as the date of post-
operative visits was concerned. Another contradiction was that
15
while the appellant denied the patient’s visit on 28.09.2000
before the State Commission, his records showed an entry in the
patient’s name for the same date. Significantly, the patient
complained to the appellant about stomach pain and constipation
on 25.09.2000 and 28.09.2000. However, instead of investigating
if a serious problem existed with the patient, the appellant
merely gave out prescriptions of medicines to deal with the
patient’s symptoms. More importantly, the appellant did not
offer any convincing reasons for delaying the referral to a
liver-specialist, despite being aware of the medical condition.
17. Considering all the above material, the finding of the
National Commission that the appellant’s conduct did not meet
the required standard of ‘reasonable care’ and that he was
negligent cannot be interfered with. The National Commission
considered the relevant material before itself, and correctly
relied on this Court’s decision in Jacob Mathew (supra) to
conclude that medical negligence was proved in the facts of the
case.
18. In light of the above, we uphold the order passed by the
National Commission in First Appeal No. 248 of 2002 dated
16.07.2012 and dismiss Civil Appeal No. 7262 of 2012. However,
in the facts and circumstances of the case, we deem it
appropriate to modify the direction of the National Commission
16
with respect to payment of interest from @ 12% to 6% per annum.
19. The Civil Appeal is disposed of in terms of the above
directions.
20. There shall be no order as to costs.
……………………………………………………………………J.
[PAMIDIGHANTAM SRI NARASIMHA]
…………………………………………………………………J.
[SANDEEP MEHTA]
New Delhi
September 5, 2024.