The Complainant who was suffering from upper abdominal pain visited the OP No.1-Doctor on 3.5.2006 with USG report dated 29.4.2006 which reported “A big intraluminal CALCULUS (Diameter 2.6 cms) seen casting distal acoustic shadow”, when the OP No.1-Doctor diagnosed “CHOLELITHIASIS” and performed LAP-CHOLEY on 16.6.2006 at OP No.2-Hospital and discharged the patient on 18.6.2006 as revealed from the Discharge Certificate dated 18.6.2006 of OP No.2-Hospital being duly signed by the OP No. 1-Doctor.

Five years after such Lap-Choley, i.e. in the month of February, 2011, the Complainant felt severe pain in upper abdomen in course of treatment of which by the local doctors, Jaundice was diagnosed. It was alleged in the Petition of Complaint that the presence of two cholescystectomy clips in CBD since the day of Lap-choley on 16.6.2006 which caused upper abdominal pain and jaundice indicates negligence on the part of the OP No.1-Doctor.

Perusal of medical record it was found that nowhere in the concerned treatment documents is there any noting about intimation to the patient concerned in respect of possibility of adverse effect or reaction of Lap-Choley as is required as per standard medical ethics and that such lapse on the part of the OP No.1-Doctor also contributed to the negligence. 

The treatment records, as available on records, do not reveal that “End-GIA Reticulator 4.8 or 3.5” which is frequently used stapler for closing the CD stump, as revealed from the Publications, was used in the case on hand.

The foregoing facts, evidence and observation indicate that three essential components of medical negligence, i.e. ‘duty’, ‘breach’ and ‘resultant damage’, as observed by the Hon’ble Supreme Court in the decision of Jacob Mathew vs. State of Punjab & Anr., reported in (2005) 6 SCC 1, are present in the case on hand. Consequently, the instant Complaint Case is allowed on contest.

Compensation Awarded:

The OPs are directed to refund to the Complainant Rs.80000/- being the cost of the second operation and also to pay to the Complainant Rs.400000/- each, within 45 days from the date of this order, as compensation which appears to be reasonable for suffering from pain and mental agony, failing which interest @ 9% per annum shall be payable by the OPs to the Complainant for the entire period of default.