A patient underwent surgery to remove gallstones and their gallbladder. Post-operatively, the patient experienced biliary leakage and was found to still have some common bile duct (CBD) stones. The patient alleged medical negligence by the surgeon for not ensuring all CBD stones were removed. The surgeon argued that leaving some CBD stones is a known risk and not removing them during gallbladder surgery is not considered negligent. While the lower courts ruled in favor of the patient, the highest court dismissed the negligence claim based on an expert opinion that supported the surgeon's defense that their actions were within normal practice.

1. Removing stones from CBD
while operating gall bladder:
Negligence or not?
Cases from surgical specialty: Cholecystectomy
Dr. Arun Sharma
Manager, Medical Affairs
Mankind Pharma Ltd.

2. Medical negligence in surgical specialty
• No such thing as ‘minor’ or ‘major’ surgery
• Any surgical procedure is a serious matter
• The last thing anyone wants to hear following a surgery is
that an error occurred
• But does that automatically mean a surgeon can be accused
of negligence?

4. Case facts
• Patient approached hospital with the complaints of pain and
uneasiness with vomiting.
• Underwent ultrasound, diagnosed with stones in the CBD & gall
bladder
• Doctor (accused) advised immediate operation, performed next
day
• Post operatively:
• Persistent biliary leakage from the drainage tube reported
• Patient’s condition deteriorated

5. Case facts
• Patient referred to a government hospital and advised ERCP
• ERCP report confirmed that:
• 2/3 stones left in the CBD
• Biliary leakage from Cyslic duct i.e. Injury CBD
• Multiple collection in abdomen
• Three to four stones were removed from the CBD and a
stent put intrahepatic Biliary Radicals, at the Government
hospital.

6. Case facts
• After that, CT scan was performed which reported as
• “Multiple loculated fluid collections in the Peritoneal Cavity, with
Stent in the CBD with B/L pleural effusion”.
• This was separately treated by Pig-tail catheter drainage
and the patient was discharged
• Since there was a collection of greenish thick pus, the
patient was again admitted and the catheter and stents
were removed and the patient was advised another
operation

7. Course of litigation
• The patient filed a complaint of negligence and deficiency in
services provided by the operating doctor in the District
Consumer Forum.
• District consumer forum held the doctor negligent and awarded
compensation to the patient
• Dissatisfied with the amount of compensation, the patient filed
an appeal in the State Commission, where the complaint was
dismissed.
• Hence, the complainant filed a revision petition in the National
Consumer Disputes Redressal Commission.

8. Patient’s allegations
• It was doctor’s duty to perform ERCP and in case if ERCP
was not available at his hospital, the doctor should have
referred the patient to proper centre.
• The pre-operative ultrasound clearly revealed stones in the
CBD, but the USG was never produced before the District
Forum or the State Commission.
• The doctor was negligent as he chose to refer the patient
to for ERCP at a late stage.

9. Doctor’s defense
• The accused doctor placed reliance on the expert opinion of the
Professor and Head, Department of Surgery, Government
Medical College and Hospital, which went in his favour:
• “……It is not mandatory for the operating surgeon to see
the condition of CBD and remove the stones while
operating Gall Bladder………Even in the best hands, the
complications which the patient faced could
happen………”.
• He also opined that in 2-3% cases, CBD stones can be left.

10. Doctor’s defense
• Patient’s gallbladder was removed successfully and it was
found that CBD of the complainant was inflamed, mildly
dilated and no stones were detected manually.
• The operation was quite successful and the patient
progressed normally in the post-operative period and shown
steady recovery.
• The ultrasound before removal of stitches was found normal
and there was no collection in the abdomen and the patient
was discharged from the hospital in a perfect condition

11. Court’s findings & observations
• The court perused the evidence on record and relied on the
expert opinion according to which, the decision of
cholecystectomy was correct.
• Moreover, his opinion that it is not mandatory for the
surgeon to see the condition of CBD and remove the stones,
while operating the gall bladder was upheld.
• The court also discussed at length as to what constitutes
medical negligence.

12. Court’s findings & observations
“the practitioner must bring to his task a reasonable degree of skill
and knowledge and must exercise a reasonable degree of care.
Neither the very highest nor a very low degree of care and
competence judged in the light of the particular circumstances of
each case is what the law require: (cf. Halsbury's Laws of England
3rd ed. vol. 26 p. 17)”.

13. Court’s findings & observations
• The court ruled that the accused doctor was qualified and
there was no deviation from his ‘duty of care’.
• The treatment was as per the norms as revealed by medical
records.
• The accusation of medical negligence against the accused
doctor could not be proved and the revision petition was
dismissed accordingly.

14. Disclaimer
• Based on:
Case before National Consumer Disputes Redressal Forum
REVISION PETITION NO. 4112 OF 2012
• Order accessed from
http://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidi
n=0%2F0%2FRP%2F4112%2F2012&dtofhearing=2016-01-05 on 22.05.2018
• The legal information provided in this article is of a general nature and cannot
substitute for the advice of a licensed legal professional. Nothing in this article
should be construed as an attempt to offer or render a legal opinion or otherwise
engage in the practice of law.