By Sri. A.A. Vijayan, President.                                                         

                      The complaint is in respect of medical negligence. The  averments in the complaint  can be summarized as follows. 

            On 25-04-2007 the complainant was admitted  in Al-shifa hospital, Perintalmanna  with the complaint of fever and abdominal pain.   Dr. Saju Xavier, the consultant  in
Gastroenterology Department attended the complainant and on his advice  ERCP   was done  and  diagnosed  calculi in Common bile duct.  The attempt to crush the stone  was not succeeded   since  the mechanical  lithotripter could not grasp the stone.  Thus for a temporary relief  stenting was done  in the common bile duct and complainant was discharged on 28-04-2007 with an advice  to remove  the stone  at the earliest .   Thereafter  complainant   consulted  opposite party No.2  in  1^st  opposite party hospital   on 14-05-2007  and as per his advice  ERCP was  done on 15-05-2007   and stenting was also done.  On the next day severe pain developed with high fever  and though sufferings of complainant  were brought  to the notice of 2^nd opposite party, he prescribed only pain killers and that did not  bring any relief  to complainant.  But still  2^nd opposite party did not take care of  the complainant  properly. On 17-05-2007 the complainant was referred to  Surgery Department of 1^stopposite party hospital and 3^rd  opposite party, the surgeon  diagnosed  chronic calculus cholecystitis and he advised for emergent cholecystectomy   and on that day itself  the said procedure was done  by  the opposite party No.3 .  Even after  cholecystectomy  the pain did not  subside.  As per the advice of 3^rd opposite party   for post operative management, he stayed back in the hospital  for  few days more.  Though complainant insisted to consult opposite party No.3, since he did not get any relief from  the pain,  3^rd opposite party was not available  and he was on leave.    Till the arrival of 3^rd opposite party  on 26-05-2007, complainant  continued there as  inpatient  and after the arrival of opposite party No.3, when he was consulted, he told the complainant that acute leakage  in the biliary tract was the reason for the intolerable pain and as per the advice of opposite party No.3  stenting was again done.  But the condition of the complainant   was not improved and on 26-5-2007 the complainant was discharged.     After discharge,  though   complainant  took medicines as prescribed by opposite party No.3,   his condition was not improved.    When   he attempted to contact 3^rd opposite party on many occasions he was evaded by 3^rd opposite party.  Then he advised him to contact 2^nd opposite party.   Thus on 22-07-2007 the complainant consulted  2^nd opposite party in the hospital   and  complainant was advised by him  for taking  USG scan  and for that,  he was referred to Radiology Department of 1^st opposite party hospital. Seeing the scan report, complainant surprised because the report showed the existence of the gall bladder which was claimed to have been removed by 3^rd opposite party.    When this aspect was brought to the notice of 2^nd opposite party, he ignored the same and asked the bystanders of the complainant to take the report to the Radiology Department   for correction.  After examination of   the complainant by the 2^nd opposite party, he diagnosed with dilated CBD and multiple filling defects. Moreover, he also informed that the stent which was placed previously was missing. Thus on 27-07-2007   another stent was inserted and   complainant was discharged on 28-07-2007.   Nothing was revealed by opposite party No.2 as to what happened to the missing stent.  Even after the above procedure the pain   and   sufferings   of  complainant  did not  disappear.   He  repeatedly  consulted 2^nd opposite party   and took medicines prescribed by him and that also   did not change the situation.  When complainant  consulted 2^nd opposite party  on 29-9-2007  he advised for  the stent removal  to reduce the  pain  and then  the stent was removed on that day itself and complainant was sent  back  with advice for taking medicines prescribed.   Again   complainant consulted 2^nd opposite party  on 15-10-2007   with complaint of severe pain and fever and on that occasion  2^nd opposite party advised  him for  another stenting .  Thus on 16-10-2007 he was admitted in the hospital  and ERCP –stenting was done and discharged on 17-10-2007.   But still   the condition of the complainant  did not improve  and since there was no other go  he  consulted  Dr. Prathabhan  of Gastroenterology Department in Medical college ,Calicut on 31-10-2007 .  There  complainant was subjected  for MRCP  and the report  revealed the presence of stone in  CBD.   Then as per the advice of  Dr. Prathabhan , the complainant  undergone ERCP at PVS Memorial  Hospital , Kalloor  on 20-05-2008   and  multiple black pigmented stone were removed  and thereafter, he continued the treatment under Dr. Prathabhan  at  Calicut Medical College till 07-10-2008  and he slowly regained  his health and started his profession in January 2009.    From the above incidents  it has become clear that  opposite party No.2 and 3  failed to show reasonable  care and skill  in the treatment given to complainant.   As per their requests carried out  stenting  6 times  within a short span of  5 months, there is no justification  for this.    In spite of  doing ERCP  they could not remove the stone from CBD.

_.                    The opposite parties  were doing stenting procedure unnecessarily .  Due to the negligence of the opposite parties, complainant   suffered much.  Thus he claimed compensation for Rs. 10,00,000/- (Rupees Ten lakh) under various heads. 

              Opposite parties filed common version disputing the claim of complainant as follows. The complaint is not maintainable .  It is true that the 2^nd and 3^rd opposite party  treated the complainants  in the 1^st opposite party hospital.    There was no deficiency in service on the part of  the opposite parties.  The complainant attended the causality department of  1^st opposite party hospital  on 02-04-2005 with abdominal pain of 3 days duration.  USG scan of the abdomen was taken  and that  showed  fatty liver and gall bladder stones.  He was referred to Surgery  Department  and the surgeon  after examining the complainant  and considering  the Radiological diagnosis advised for  laparoscopic cholecystectomy   and prescribed  the medications  and directed him  to come for review  after 2 weeks. But complainant did not come for review.  On 3-05-2007 complainant consulted  2^nd opposite party in the Outpatient Department with history of abdominal pain  and jaundice  for one week duration.    He also revealed   the treatment given to him as inpatient  in Al-shifa hospital  and discharge summary   mentioned  ERCP with  biliary stenting  and sphincterectomy  and  that stone could not be removed.  On the basis of the clinical examinations   diagnosis of cholangitis   was made.  The USG scan report revealed  calculus  cholecystitis , ductal CBD stone  and stent in the CBD and the patient was advised  for ERCP for confirmation  of diagnosis   and subsequent treatment.  He was also advised for   removal of gall bladder immediately after ERCP.  The complainant was explained in detail   about the ailments  treatment plan  and the possible complications.   On getting  the  consent of complainant  for the procedure  he  was directed to   come for admission on 14-5-2007 for the procedure to be done on 15-5-2007.  Then on that day ERCP was done  and stone  in the distal  common bile duct was detected and that was removed .  Then by occlusion cholangiogram the stone removal was confirmed.The patient was comfortable and symptom free throughout the post operative period then he was transferred to the ward   and  advised  for  surgery   consultation  for  cholecystectomy.    On  16-05-2007  3^rd opposite party examined  the patient  and cholecystectomy was done on 17-5-2007. Post operative period was uneventful.  On 20-5-2010  the patient had increased biliary drain  and 3^rd opposite party  requested for review by 2^nd opposite party.  Then on 21-05-2007  2^nd opposite party  reviewed and  anticipating biliary leakage  advised for  ERCP and stenting  to prevent the leakage and the procedure was done on 25-5-2007  and discharged on 28-5-2007.   He had been advised for stent removal after three months and the periodic follow up and ERCP.   On 22-07-2007  patient  attended OP department of 2^nd opposite party   and after the detailed clinical examination and lab investigation  , cholangitis was diagnosed  with possibility of stent obstruction or stent migration.  He was advised for ERCP which revealed   the migration of  the previously placed stent.   On 1-09-2007 he appeared in Gastro OPD.  X-ray revealed   the stent in the proper position.   Though endoscopic  removal of stent  had  been  fixed on  29-09-2007,   the  patient came  on 10-10-2007 with abdominal pain and vomiting .  USG scan report showed mild dilatation of CBD,   but no obvious stones therein.    Complainant was re-admitted on 15-10-2007 with complaint of abdominal pain and fever.   Due to   recurrent cholangitis   ERCP was repeated.  A stent was placed for stabilization of clinical status.  Then he was referred to surgeon at Calicut Medical college hospital.  _. Apart from the above allegation the opposite parties specifically denied the averments stated in each Para I of the complaint. 

                The complainant    and  opposite party No.2  were examined as PW1 and DW1  and Ext.A1 to A21series and Ext. C1 and C1(a) were marked.   Gastroenterologist   of  MES Medical college, Perintalmanna  was appointed as  an expert  to find out whether  there was any negligence or deficiency in service  on the part of opposite parties. He filed  his report  .  As per the findings of the expert, there was nothing to  show  the negligence or professional incompetence in the treatment given to complainant.  The points arise for consideration  .

1. Whether there was any negligence or deficiency  in service on the part of  opposite   parties.
2. Whether Complainant is entitled to compensation as claimed.
3. Reliefs and cost.

Point No.1 and 2

              The complainant who is a practicing advocate    suffered abdominal pain fever and rigors and he approached Al shifa hospital   at Perintalmanna  on 25-04-2007 seeking treatment  for the ailments.   Dr. Saju Xavier the consultant Gastroenterologist examined  the complainant and diagnosed diabetesmelitus, hyper tension, cholelithiasis   and cholangitis. He conducted ERCP  and biliary  sphincterectomy  and  Frank-pus was drained. The stone  in the bile duct  could not be   grasped  in mechanical  lithotripter  and thus it  could not be removed. But stenting was done  at that time.     He was also directed to report for review in the OP department after two days.  The above procedures were  reported in Ext. A1  the discharge summary issued from Al-shifa hospital .  It is clear  from the diagnosis of  the above Gastroenterologist  that  a stone was present  in the common bile duct of  complainant.  Complainant   asserted that  when he was  discharged from Al-shifa hospital on 28-4-2007,  he had been advised   by the doctor to remove  the pigmented  stone  from  CBD  at the earliest.   The above aspects are not  denied  by opposite parties.

                 The  next  phase  of  treatment started  in  the 1^st opposite party hospital on 14-05-2007. Though  opposite parties  alleged that the complainant   had approached the 1^st opposite party  on 02-04-2005 with a complaint of   fatty liver  and gall bladder stones and then surgeon of the hospital named Dr. M.G.Sijin advised , after examination of complainant,  for laparoscopic cholecystectomy  and to come for review after two weeks  and  since then  he did not  come for follow  up.  The above  allegations   of opposite parties   regarding  treatment started by complainant in 1^st opposite party hospital as  early in 2005 is denied by  complainant.  But still no credible  documents  were produced by opposite parties  to prove  the first phase of  the alleged treatment of  complainant in 1^st opposite party hospital in 2005 . According to opposite parties the related entries are shown in the  surgery notes .   There is nothing to show that those entries are related to the complainant.    No name of the patient is entered therein. More over  from the entries it is seen that  patient  reached there  for treatment  for appendicitis   and renal stones. In the absence of any evidence  to connect  that consultation  with complainant, especially when  complainant  vehemently denied  such consultation,   only on the basis of  an entry in the   surgery notes  without the name of the patient, we  cannot conclude  that  those  entries are related to    complainant.    Moreover ,  the copy the  surgery notes  was produced by the opposite party in connection with   the expert inquiry conducted  as per the order of this Forum.   That document is not  marked  and no copy is  given to complainant  and  no opportunity was also given to complainant to challenge those entries.  Under these circumstances  we cannot conclude that  the complainant had consulted   2^nd opposite party during 2005 as claimed .  The above allegation  was raised by opposite parties only to prove that   complainant  was not  in the habit of  completing the treatment started by one doctor and without obeying the directions of the doctors, he used to change  the treating doctors without any valid  reasons.  Any how the above document is not useful to establish the claim of the opposite parties.    Therefore from the available documents the only conclusion which can be arrived at is that the claim of opposite parties  that the  first appearance of complainant  in the hospital of 1^st opposite party  with a complaint of  abdominal pain and other related symptoms was   on 2-4-2005 is not supported by any credible evidence. According to complainant he consulted 2^nd opposite party only on  14-5-2007 .  The opposite parties could not produce  any records   to establish that  the complainant   had   reached Outpatient Department of 1^st opposite party hospital  on 02-04-2005  with a complaint of abdominal pain and jaundice of one week duration.  On the other hand  the records produced by both parties revealed  that   the   second phase of treatment of complainant  started  from 14-05-2007 and not  from  02-04-2005  as alleged by opposite parties.

          Anyhow   whether complainant   consulted opposite parties  on 02-04-2005 or on 03-5-2007 or on 14-5-2007 is  not  very material  as far as the present dispute is concerned.       

             Admittedly  when  complainant  consulted opposite party No.2   in 1^st opposite party hospital , he was admitted in the hospital  and 2^nd opposite party  subjected him  for ERCP  and   he detected inflammation of bile duct (Cholangitis)  and presence of stone in  common bile duct( Choledocholithiasis) and he removed  the stone  as seen in Ext. A2.  In this ERCP report   it is recorded that  opposite party No.2  conducted   sphincterectomy and removed  previously placed stent  and by cholangiogram,  he detected dilated CBD, IHBRD and filling defect   in the lower end  and pus  coming out of papilla.   It is also reported that stone is removed and repeated occlusion cholangiogram did not reveal any filling defects in CBD and he also   found   good bile flow.    As per this report the stone   from CBD was removed and the bile flow was regulated .  If  there was  any other  stone  in the bile duct that would have been  detected by opposite party No.2  at that time. Thus, we can safely conclude that  after the procedure there was no   stone in bile duct and the defect in  flow   of  bile juice was cured by this procedure.  The ERCP report of opposite party No.2 dated 15-5-2007 is marked as Ext. A2 .

             After the removal of stone, in view of chronic cholecystitis revealed in the USG scan he was referred to Surgeon who is  opposite party No.3 for further procedure.

                Another aspect to be  noted   is that  after cholecystectomy done by opposite party No.3  as seen in Ext. A3, scan report was   received by opposite party No.2  and in that report  the presence of  gall bladder was  clearly shown and  on seeing this wrong report  he  directed the bystanders of the complainant  to deliver the report to the Radiology Department to  get it corrected.   That report is marked as A4.  It seen therein that  the description of gall bladder  typed earlier  was struck off and  using pen it is seen recorded  “gall bladder not seen  post cholecystectomy  status and CBD stent in situ”. In the  space provided for impression in the earlier report it was recorded   “ no sonologically  detectable   abnormality  seen”. That was struck off  using pen and  it is  recorded using pen “dilated  intra hepatic biliary radicals….................................  The   above correction seen in Ext. A4 is not authenticated.  Such mistake is  highly dangerous  and   that may  mislead  the concerned treating  doctor .   It is seen from the version of opposite parties   that they took it as a simple mistake  and that attitude itself shows  the deficiency of service of  the Radiology department of opposite party No.1 hospital  and   that  can be  treated as  a gross negligence on their part  and no satisfactory explanation was given by opposite parties  for the same.  Therefore   deficiency in service on 1^st  opposite party  is patent  under the circumstances  discussed above.

            The grievances of the complainant  as revealed in complaint  and chief affidavit  are as follows.

1. When complainant consulted  2^nd opposite party on 14-5-2007, ERCP  was done  and stone was removed  and biliary stenting also was done and after that   on the next day  excruciating   pain  was developed  in the right upper  quadrant region  followed with high fever and when  it was brought to the notice of 2^nd opposite party he did not pay  any attention to complainant except   administering  pain killers which did not  give any relief to him.
2. On 17-5-2007  the complainant was referred to the surgery department of opposite party No..3 and there  opposite party No.3 diagnosed  chronic calculus  cholecystitis   and advised to undergo cholecystectomy and even after that procedure  complainant did not get any relief.  More over  even after  cholecystectomy  complainant was forced  to stay back in the hospital for few days on the pretext  of  post operative management.  But  on the next day of surgery  complainant suffered breathlessness and dyspepsia . Though  complainant wanted to consult opposite party No.3  he could not    get an opportunity since  opposite party No.3 was on leave . 
3. On 26-5-2007  opposite party No.3  attended him  and detected acute leakage  in the biliary tract  and advised for stenting  and that was done.   But the situation  was never improved  and 3^rd opposite party  was reluctant to hear  the complainant as to  severe pain  and difficulties  suffered by him . More over  on 26-5-2007 itself   he was discharged  inspite of  persistent  pain  and breathing trouble of complainant . 
4. On 22-07-2007  complainant consulted 2^nd opposite party  with acute radiating pain  in the abdomen and intermittent fever and vomiting .  2^nd opposite party referred the complainant  to Radiology department  for abdominal scan  and after the scan  when the report we obtained  complainant was shocked by seeing  existence of gall bladder is recorded in the report. When  this aspect   was brought to the notice of opposite party No.2   he did not  take it seriously and after examining the complainant, he informed that previously placed  stent is not seen and another stent is required to prevent bile leakage and he also  detected   dialated CBD and multiple filling defects  and accordingly  a stent was inserted on 27-07-2007 and discharged him without doing  anything   to get relief from   the pain and trauma  of complainant. 
5.  On Account of  acute pain   and sufferings  complainant consulted 2^nd opposite party on 29-9-2007 and he was advised by 2^nd opposite party for removal for stent  to curb pain and accordingly  that was removed and then  he was discharged  with usual prescription .  But  his pain and sufferings  did not come to an end.  Again  complainant consulted opposite party No.2  when  severe pain developed on  his right upper quadrant with fever on 15-10-2007  .  Opposite party again advised for  another stenting and that was done on 16-10-2007  and discharged on 17-10-07, but still  his pathetic situation  did not come to an end.  After this,  complainant   approached  Dr. Prathapan of Calicut medical college hospital on 31-10-2007. The rest of the treatment was conducted  in PVS memorial hospital Kalloor, cochin and there after he sought treatment  from Calicut medical college hospital .  

            The complainant alleged  deficiency in service  against opposite parties  on the basis of  the incidents  narrated  above   Para  (a)  to (e).  Thus we are concerned with the veracity of  the allegations  raised by complainant  as found above.  The relevant records relating to the allegation No.(a) are Ext. A1 to A3  .Admittedly  complainant  had sought  treatment  from Al shifa hospital , Perintalmanna on 25-4-2007 with complaints of fever, rigors  abdominal pain  for three days .     The  doctor  who treated  him  was Dr. Saju Xavier , Exit A1 is the document  related to this treatment. Complainant was discharged  after the treatment  on 28-04-2007 . In Ext A1 discharge summary  it is seen recorded that   though ERCP and  biliary  sphincterectomy  were conducted the   stone  in CBD could not  be removed since it could not be  grasped  in  mechanical  lithotripter  and thus stenting was done   and it is also recorded therein that  there was prompt relief of symptoms.    Complainant  never  expressed  dissatisfaction   in   the treatment given in Al shifa hospital.   But complainant   expressed ignorance   of the fact that   stone in the CBD  had been detected  by  Dr. Saju Xavier  in the treatment conducted in Al shifa hospital .  More over  according to him  the information given by  said doctor was  regarding presence of stone in the gall bladder  and    the doctor had not  given any direction regarding further treatment,  but he was  directed to come after one week  and  he  failed to  consult  the said doctor  as directed   since   he got relief of symptoms by that time.   But in Ext. A1  it is clearly  reported  that  “1.2 cm calculi  in mid CBD  with dilatation  proximally”.   It is also revealed therein that  the stone could not be grasped  in mechanical  lithotripter and stenting was done  and complainant was directed to  come for review in the Outpatient  department after  two days.   But  regarding above crucial facts, the complainant feigned ignorance.  It is to be noted that  the complainant is in possession of Ext. A1 document and  he is not a layman, he is  a practicing lawyer.  Thus  we cannot assume that  he was not aware of  the contents  of this document.  It is noted in Ext. A1 that  Dr. Saju Xavier could not  remove  the stone  from CBD because  mechanical lithotripter could not grasp the same.  That indicates that  the treatment shown in Ext. A1 could not  remove the stone  and stone was present in the CBD when he consulted opposite party No.2.

               When complainant approached opposite party No.2, he was examined and diagnosed  choledo cholithiasis (Presence of stone in CBD).  Apart from that cholecystitis (Inflammation of gall bladder) was also detected.  Thus opposite party No.2  conducted ERCP as seen in  Ext. A2  and previously placed stent was removed  and by cholangiogram (Radiographic examination of  the bile duct  with contrast)  dilation of  CBD  was detected   and stone was removed.  Repeated occlusion cholangiogram  did not  reveal any filling defect in CBD and good bile flow  was also found.    The above procedure is mentioned in Ext. A2.  There is nothing to show that the above procedure was not conducted by opposite party No.2 or that procedure was  not  necessary or there was any defect in that procedure.

                It is alleged by complainant that after the above procedure he was suffering from excruciating   pain developed in his right upper quadrant region with high fever and when it was brought to the notice of 2^nd opposite party he did not pay any attention.     It is to be noted that  he was admitted  in the hospital of opposite party NO.1 on 14-5-2007 and discharged on 28-5-2007.    A detailed investigation   by blood     test was  conducted  and that is  described in Ext. A3   discharge summary.    Medicines were also prescribed  for complainant  for his relief .  Apart from the assertion of the complaint there is nothing on record to show that  after ERCP  the 2^nd opposite party  did not pay any attention to  complainant. From Ext. A3   It is seen that complainant was an inpatient in  the hospital from 14-5-2007 to  28-5-2007.and it is recorded in Ext. A3    that  at the time of consulting  opposite party No.2   after admission of complainant in 1^st opposite party hospital , there was extensive   adhesions  and severe inflammation  of gall bladder  and pericholecystic  abscess.   It is also recorded that  there was biliary leak after surgery  and that was also controlled  with stenting .   Besides  tablets and injections    were also prescribed to complainant.   Thus It cannot be  held that the 2^nd opposite party  has not given any attention to him.  Thus  evidence is lacking to prove   the negligence shown by opposite party No.2  in giving  proper treatment to complainant. 

               In this context    it is to be  noted that  when the complainant   consulted Dr. Saju Xavier in Al-shifa hospital  as seen in Ext. A1 discharge summary,  ERCP was done  by him  and  detected stone  in CBD , but he could not remove the stone  there from   and after stenting  he  discharged  complainant on 28-4-2007 with a direction to  come for review  in OP department   after two days.  But  he did not   comply  that direction   and after    two weeks  he approached opposite party No.1 hospital . The reason for complainant  for not  consulting Dr. Saju Xavier   was , according to complainant as found above  the subsidence of his discomforts.  But even after that without consulting Dr. Saju Xavier he directly consulted opposite party No.2.   From the conduct of the complainant it is seen that  he was very negligent  in keeping  continuity in   treatments for his illness.  

             It is also alleged by complainant that   after  completing ERCP  he was referred by opposite party No. 2 to surgery department for examination by opposite party No.3  for cholecystectomy . He asserted that his gall bladder was unnecessarily removed by opposite party No.3.  This claim also seems to be baseless in view of Ext. A3.  In Ext. A3  it is  clearly recorded after  investigation that  there was  severe inflammation in the gall bladder and  pericholecystic abscess. Thus the decision taken for cholecystectomy   cannot be said to be improper, untimely and unnecessary.  More over the  Gastroenterologist   of MES medical college,  Perintalmanna who  was appointed  for enquiry in this case  as an expert  for assessing whether there was  any defect in the treatment given by opposite parties  revealed in his report  that  once the CBD is cleared  it is better to take  the patient for laparoscopic   cholecystectomy at the earliest  to prevent the recurrent  biliary complications.  This  same opinion is seen    expressed  in a book ``Evidence -Based Gastroenterology And Hepatology – 2^nd Edition edited by John.W.D. McDonald and others page 318 - 320”.   Therefore we cannot come to the conclusion that  cholecystectomy done by opposite party No.3 was   an unnecessary and improper procedure.   Hence  the claim of complainant that  opposite party No.3  unnecessarily  removed his gall bladder  seems to be  untenable and un acceptable.

           It is also claimed by complainant that  after cholecystectomy  he was unnecessarily  forced to stay back in the hospital for few days under the pretext of post operative management.   It is evident from Ext. A3 that  after cholecystectomy     there was biliary leak  and that was controlled with stenting.  Moreover , he was given  medicines also.   After admission of complainant   on 14-5-2007 till 26-5-2007 several blood tests  were conducted   and  different medicines were also prescribed.  Thus  under the above circumstances we cannot conclude that the complainant was  forced to  be an inpatient for some days  after the surgery without any sufficient ground.  If   complainant had  any   problems or sufferings   during that period  which were unattended by  either opposite party No.2 or 3  he could have  made complaint   to the hospital management  and that is also not done by him.   So his grievance regarding  unnecessary detention  in the hospital as an  inpatient seems to be  untenable.    Though complainant claimed  that   when opposite party No.3 detected acute leakage  in the biliary tracts  on 26-5-2007  his condition was not improved even after stenting  and he was suffering from  severe  pain and difficulties  and before subsiding those symptoms he was discharged,   Ext. A3 discharge summary   disproves the above claim  .  More over  when complainant was cross examined  he  categorically revealed that  when he was discharged from the hospital on 28-5-2007 his condition was good.   Therefore ,  the allegations raised by complainant against opposite parties  as found above  are liable to be rejected.  

             Another negligence pointed out by complainant was  that on 22-7-2007   when   he consulted 2^nd opposite party  he had  pain in the abdomen,   intermittent fever and vomiting .  Thus  2^nd opposite party  referred the complainant to radiology department for abdominal scan  and seeing the report of the scan he was shocked  because it is recorded  in the scan report which is marked as Ext. A4 that  gall bladder was in existence even after cholecystectomy  and  seeing this report opposite party No.2  got infuriated  and he  directed  the bystanders of the complainant to take the report  to the radiology department and get it corrected. On getting this report the officials  of that department  made correction  by striking out  the incorrect  findings  and by  recording the  correct finding using pen.   Ext. A4  is dated 22-7-2007   and Ext. A3 shows that cholecystectomy was done on 17-05-2007  .  Still  Ext. A4  was prepared  as if  gall bladder was in existence   and it is also recorded that  there was no  luminal lesions or wall thickening.   When the mistake was pointed out by the bystanders,  scoring   that  portion using  ink pen added the word “ not seen Post cholecystectomy state”   against gall bladder and also added the word  CBD stent in situ.   In the place  for recording the impression  it was recorded that “ no sonologically   detectable abnormality seen” and scoring  that by pen  added the word  “dilated intra hepatic  biliary radicals”   and suggested  evaluation of abdomen .  From the above data  it is   seen that  the  Radiology department of 1^st opposite party  hospital  was utter negligent    in  finding out and recording the correct state of affairs.  This apparent mistake  may lead  to fatal consequences   in the case of  the hapless patient.  Thus  that  shows  unpardonable , forbidding grave   deficiency in  service of 1^st opposite party.  It is also to be noted that  the concerned person in charge of  this department   failed to bestow   proper attention  in recording the results of  the scanning process  and  even the mistaken findings  recorded therein   is   seen struck off using pen and  incorporating   different results without any authentication . If a mistake is committed in recording  a particular result   that should be struck off  and that should be  authenticated by the concerned person but that is not done in this case .  Thus definitely  the functioning of Radiology department is far from satisfactory and that reveals  severe deficiency of service  of 1^st opposite party. The wrong report is sufficient to cause anxiety and mental agony in complainant.  

            Complainant also alleged that  stenting   process was repeated   and those stents were removed also.  That is  , according to complainant, showed   deficiency in service of opposite parties. It is significant to note that   Ext. A5 ERCP report  dated 27-7-2007 revealed   migration of  previously placed stent.  Migration of stent is a known complication as stated  in Ext.C1.   Cholangiogram revealed  dilated CBD with multiple filling defects and bile leak.  So  detected fragments  were retrieved  and CBD was washed with sterile saline and stenting was done to regulate  bile flow.   It is also to be noted that  after two days that is  on 29-9-2007   complainant suffered  dyspepsia  (impaired gastric function)and thus   on examination  the stent    at papilla  was found  snared  and that was removed  and that  is recorded in Ext. A6.  Along with the report of the expert,  study reports also were  placed   and that reveals  that  stent migration is   not unusual phenomena . So  only on the basis that  the stent was found migrated  we cannot  find fault with  the particular  surgeon who placed  the migrated stent.  

             Complainant also  pointed out hepatic duct injury  to prove  the negligence of the opposite parties.  It is true that  in the case of complainant  at the time of  cholecystectomy    a ductal injury was caused  and the medical journals  relied on by the expert  who investigated  the case of complainant indicates that  an injury to hepatic duct during cholecystectomy  is not  unusual.  Therefore only on the basis of  infliction of an injury on the hepatic duct  we cannot  conclude that  the surgeon was deficient in service.  In the case of complainant due to  injury to  hepatic duct  bile leak started   and that  problem was solved by stenting  as seen  in Ext. A7ERCP report  and A8 discharge summary. So  the  allegation raised by complainant against the opposite party on the basis of  the injury to hepatic  duct also  is not tenable to prove  the deficiency in service.  

         It is Alleged by complainant  that  the opposite parties  conducted ERCP  procedures one after another   and  within a short span of time  the complainant was subjected to  ERCP procedures  on 6 occasions under general anesthesia  and that caused internal bruises and injuries which resulted in  other complications.   As per the record submitted by the complainant Ext. A2  dated 15-5-2007, Ext. A5  dated 27-7-2007  and Ext. A8 dated 16-10-2007 are  the ERCP reports  in respect of procedures done by opposite party No.2. Ext A6 dated 29-9-2007is stent removal report. From these records it is evident that 2^nd opposite party conducted ERCP on three occasions only and on one occasion   stent was removed.    The above three ERCP reports and one stent removal report are conducted within span of 5 months.   The records revealed that the above procedures were carried out   by opposite party No.2 for the safety of complainant.    When complainant approached  2^nd opposite party   for the first time  there was stone   in common bile duct (CBD) and that is evident from  Ext. A1  discharge memory issued from Al shifa hospital .    For removing  that stone  first ERCP was done as seen in Ext. A2 and report reveals that stone was removed.   Second ERCP was done on 27-07-2007  as seen in Ext. A5 .   For evaluating  this  procedure  we have  go to  Ext. A3,  the  discharge summary .  Here it is seen that  the complainant was admitted on 14-5-2007 and discharged on 28-5-2007 .  On examination of complainant severe inflammation of gall bladder and pericholecystic abscess  were detected  and thus  choecystectomy  became essential and that was done by opposite party No.3  as seen in Ext.A3. During the cholecystectomy there are every chances for   drifting  fragments of the stone  to CBD from gall bladder.  Thus  those fragments were  removed  by ERCP procedure (Ext. A5).  During that procedure stent was also placed . Subsequently on 29-9-2007  the stent was found  snared  .  So that stent was removed as seen in Ext. A6.    On 15-10-2007 complainant was again admitted in the 1^st  opposite party hospital  with complaint of right upper quadrant  pain  and  intermittent fever.   Hepatic duct injury was also detected.  So  complainant was again subjected to ERCP on 16-10-2007 as seen  in Ext. A8 in that procedure  few particles of stone and debris were removed by ERCP procedure as seen Ext A8 and biliary stenting also was  done. Moreover the line  of management adopted by opposite party No.2 is recognized by Gastroenterologist  of   MCH Calicut as revealed in Ext. A9.  That also shows that  there was no infirmity in the treatment given by opposite party No.2   Therefore  from the above data  we cannot come to the conclusion that  the above ERCP procedures  were un necessary  or  those procedures were warranted  due to  any negligence  on the part of opposite parties.  

             It is alleged by complainant that he was subjected to  ERCP procedure  on different occasions under general anesthesia    which  adversely affected  his  health.  Thus   he submitted that  if  the opposite parties  were able to  remove the stone  which was detected by Dr. Saju Xavier  on 15-5-2007 , the subsequent procedures could  have been avoided.   On the other hand the opposite parties  were giving  wrong information to complainant on each occasions that they have removed the stone.  The stone  detected  by Dr. Saju Xavier in CBD  remained there intact  even after  repeated   attempt of stone removal   by opposite parties.   From the above allegations   it is seen that   the complainant  was under the belief  and impression  that  the stone  detected by  Dr. Saju Xavier  remained in CBD   untouched inspite of  the repeated attempts for removal of stone  by opposite parties and that stone was removed  by  the procedure  done in  PVS hospital , Ernakulam as seen in Ext. A14.   It is to be remembered that  even if  a stone found  in CBD is removed  there are chances for forming   fresh stone  in CBD.   The majority of ductal  calculi   are originated in the gall bladder   and by way  of migration it reaches  the cystic duct .  But stones may also   originate de-novo  in the common duct (Laparoscopic biliary surgery by  Alfred Cuschieri and George  berci. page No.155) .  It is also revealed  in the same book that all though stone in the common duct  may remain  asymptomatic for varying periods,  they are  prone to give rise to serious complications . Thus  it is clear that   calculi may appear  at any time  in CBD.  Some stones will be originated afresh in the bile duct and some are  migrated from  gall bladder.  Therefore   the conclusion made by the complainant  that stone detected by Dr. Saju Xavier in common bile duct  which is mentioned in Ext.A1  and  the stone  removed  at PVS hospital  are one and  the same is the result of misunderstanding .  The ERCP reports  of  2^nd opposite party which are mentioned earlier  revealed  the removal of  stones  and fragment   on different occasions.  Before the  removal of gall bladder  there were chances for migration of  the stones to the CBD . Hence we cannot come to the conclusion that  the stone reached  common bile duct  only once and that   could not be removed by the procedure mentioned in the Ext. A1  and that was finally removed   at the PVS hospital.  On the basis of the wrong impression of the complainant  regarding  the formation of the stones,  we cannot conclude that the attempts made by  opposite party No.2  became futile and stone remained there unaffected and that could be removed only by the procedure   conducted in PVS hospital. On the other hand the documents and evidence in this case  lead to the conclusion that  the stone    existed in CBD of the complainant  which is detected by Dr. Saju Xavier  was removed  by opposite party No.2  by procedure narrated in Ext. A2 and again  when the gall bladder was removed  the fragments  of the stone reached  the CBD and that was also  removed  by opposite  party No.2 as per Ext.A5 procedure.

            It is also alleged by  complainant that  by repeated stenting procedure   he suffered much and that  adversely  affected his health.   Medical h journals also indicate that  the ductal injuries and migration of stents   are common  in laparoscopic procedures and if ductal injury is  detected a stenting procedure  is to be adopted  for  preventing  the  leakage. Therefore there is no meaning in accusing opposite party No. 2 and 3  for  the ductal injury and bile leakage detected in the case of complainant.    The documents and  the evidence  in this case  lead to the conclusion that the procedures adopted by opposite parties  were essential  and they acted   bonafide for preventing complications  which are sufficient to affect  the life of the complainant himself.  If stenting procedure is not adopted by them the bile leak  would have posed a threat to the life of the complainant .   Hence  we cannot   find  any deficiency in service   in the action of  opposite parties 2 and 3 and  the treating records revealed  the necessity  of the procedures adopted by them   . 

              Being a case of medical negligence  a scientific  evaluation of  procedures  carried out by opposite parties was essential and thus  Gastroenterologist of MES medical college perintalmanna was appointed as Expert and he filed  a detailed report  which is marked as Ext. C1 and C1(a).   After evaluation of  the process   adopted by opposite party No.2 and 3  the expert   came to the conclusion that there was no deficiency in service on the part of treating doctors.  It is also to be noted that  for   justifying   the findings of  the expert  he produced  the authorities  also.   The expert has  examined  the allegations against  the treating doctors  meticulously   and came to the conclusion that  there was no negligence  on the part of  opposite party No.2 and 3 .  The complainant  did not make any attempt to challenge the findings of the expert    by cross examining him and to  establish that  his findings  were  incorrect  or partisan .  Therefore we find no reason to reject  Ext. C1 report. 

           From Ext. A4 document the negligence of the department of Radiology and imaging of the 1^st opposite party  hospital  is established .  Therefore  we find deficiency in service on the part of the 1^st opposite party  in respect of  Ext. A4   report .   Thus  1^st opposite party  is liable to pay compensation.  Points are decided accordingly.

         On the basis of the findings on the above points  we find that there is no deficiency on service on the part of opposite party No.2 and 3 .  At the same time the negligence on the part of the radiology department of 1^st opposite party cannot be left  un noticed. Points are decided accordingly. 

Point No.3

  On the basis of the findings on the above points  we allow this case partly as follows:-

1. In the light of documents evidence  and report of the expert  we  hold that  the claim of complainant against opposite party No.2 and 3 is unsustainable and complainant is not entitled to any relief  against them.
2.  Ext. A4 report  and the way in which  the wrong findings were corrected revealed the utter negligence of  the Radiology department of 1^st opposite party and thus    we find that the 1^st opposite party is liable to  pay compensation of Rs.  10,000/-(Rupees Ten Thousand only) to complainant  within 30 days from the date of the receipt of copy of this order failing which  they shall pay the amount with interest at  the rate of 12 % per annum   from the date  of complaint till realization.
3. 1^st opposite party shall pay Rs. 10,000/- /-(Rupees Ten Thousand only) also as cost to complainant.
4.  

                                                                    A.A.VIJAYAN, PRESIDENT

PREETHI SIVARAMAN.C, MEMBER                

APPENDIX

Witness examined on the side of the complainant                           :   PW1

PW1       : Complainant.

Documents marked on the side of  the complainant                        :   Ext.A1to A21

Ext.A1     : Discharge summary issued by Al-Shifa Hospital ,Perintalmanna dated 

                    28-04-2007.

Ext.A2     : ERCP report issued by (Gastroenterology Department) opposite party dated               

                   15-05-2007.                                                                                           

Ext A3    :  Discharge summary issued by opposite party dated 28-05-2007.

Ext A4     :Lab report (Department of Radiology & imaging) Issued by Opposite party 

                   dated  22-07-2007.                                                                                                                    

Ext A5     : ERCP report issued  by opposite party dated 22-07-2007.

Ext.A6     : OGD/Stent removal report issued by opposite party dated 29-09-2007.    

Ext.A7     : Discharge summary  (Department of Gastroenterology) issued by opposite

                    party  dated 17-10-2007.                                                                    

Ext A8     : ERCP  report (Gastroenterology department) issued by opposite party dated   

                   16-10-2007.

Ext A9     : Referal  OP Ticket issued by Directorate of Medical Education ,Medical college

                    hospital, Calicut  dated 31-10-2007.                                                                                      

Ext A10   :  Doctor’s prescription issued by Dr. Prathabhan .V.K, Medical college Calicut

                    dated 29-11-2007.

Ext.A11     : Lab report (Department of Radiology & imaging) issued by MIMS dated

                     16-04-2008.                                                                          

Ext.A12    : Discharge summary issued by PVS Memorial hospital Limted , Cochin dated  

                     21-05-2008.                                                                                         

Ext A13     :  Report issued by PVS Memorial hospital Limted , Cochin dated  

                     20-05-2008.                                                                                         

Ext A14     :  ERCP Report issued by PVS Memorial hospital Limted , Cochin dated  

                     20-05-2008.                                                                                                                              

Ext A15     :   Doctor’s prescription issued by Dr. Prathabhan .V.K, Medical college Calicut

                    dated 10-06-2008

Ext.A16     : Doctor’s prescription issued by Dr. Prathabhan .V.K, Medical college Calicut

                    dated 7-10-2008.                                                                  

Ext.A17     : Postal receipt and Lawyer Notice dated 24-02-2009.                     

Ext A18     : Reply Notice  dated 23-03- 2009.

Ext A19     : Registered letter issued from 3^rd opposite party to Corporate Legal

                     Consultancy, Manjeri dated 27-02-2009.                                                                             

Ext A20     :   Registered letter issued from 2^nd opposite party to Corporate Legal

                     Consultancy, Manjeri dated 27-02-2009.

Ext A21(s) : Pharmacy  Bill  & Cash bill (Nos.101)                                                           

Witness examined on the side of the opposite party                         :   DW1

DW1       : Opposite party No.2                                                                               

Documents marked on the side of the opposite party                       :   Nil

Ext.C1(a) : Expert report (Dr. K.Muhammed, MDDM, Gasenterologist MES Medical  

                    College, Perintalmanna).

                                                                    A.A.VIJAYAN, PRESIDENT

PREETHI SIVARAMAN.C, MEMBER