P.N.Gupta vs Rajinder Singh Dogra

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 3

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. 6

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 7

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 8

space 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 9

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, 10

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 that

3(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.