National Consumer Disputes Redressal
N. Laxmi vs Mahesh Hospitals & Research Foundation ... on 7 May, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 1174 OF 2014 (Against the Order dated 05/09/2014 in Complaint No. 136/2012 of the State Commission Andhra Pradesh) 1. N. LAXMI W/O. N. VEERAIAH, R/O. POCHAM VILLAGE, NIZAMABAD DISTRICT, HYDERABAD ANDHRA PRADESH ...........Appellant(s) Versus 1. MAHESH HOSPITALS & RESEARCH FOUNDATION & ANR. 3-6-756, ST. NO.13, HIMAYATNAGAR, HYDERABAD, ANDHRA PRADESH 2. DR. ANURADHA MAHESH HOSPITALS & RESEARCH FOUNDATION,3-6-756, ST. NO. 13, HIMAYATHNAGAR, HYDERABAD 3. Dr. Anuradha R/o Flat No.201, Sri Sai Apartments,16-2-716/E/1, Akbar Bagh, Malakpet, Hyderabad, Andhra Pradesh. ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON'BLE MR. DR. S.M. KANTIKAR, MEMBER For the Appellant : Ms. Prachit Deshpande, Advocate with Dr. R.R. Deshpande For the Respondent : For the Respondent no. 1 : NEMO For the Respondent no. 2 : Mr. Dushyant Parashar Advocate, with Ms. Priyanka, Advocate Dated : 07 May 2015 ORDER PER DR. S.M. KANTIKAR, MEMBER Despite the precautions by the surgeon, the retention of foreign bodies still occurs. Gossypiboma should always be considered in the differential diagnosis of indeterminate abdominal pain, infection or a mass, in patients, with a prior surgical history.
This order shall decide two appeals, the facts are taken from First Appeal No. 1174 of 2014.
The facts in brief are that:
In February 2011, the complainant N. Laxmi (herein referred to as "patient"), took treatment from Dr. Anuradha (OP-3) at Mahesh Hospital (OP-1) for severe abdominal pain. On 15.03.2011, OP-3 performed "vault prolapsed abdominal repair mesh" operation. She was operated in OP-1 hospital under the "Arogyashree Scheme" started by Arogyashree Heath Care Trust (OP-4). The OP discharged the patient, on 23.03.2011, and again, on 16.04.2011, she approached OP-3 for pain in abdomen, who advised her 'complete bed rest'. Thereafter, she approached Osmania General Hospital and after examination, doctor found some clot in the abdomen. On 12.08.2011, she went to M.N.J. Hospital, Hyderabad. A CT scan was performed and it was reported as, carcinoma caecum. Then, on 18.08.2011, she approached Krishna Institute of Medical Sciences Ltd. (KIMS) and after the colonoscopic investigations; she was diagnosed as "chronic non-specific inflammation, with ulceration". Therefore, on 27.08.2011, complainant approached Omni Hospital, Hyderabad, where she was re-operated by Dr. B.S.Rao, who noted displaces previous mesh at right side of rectum and found that two surgical mops were left in the abdomen, while conducting previous operation at OP-1 hospital. She was discharged from Omni Hospital, on 07.09.2011. Therefore, alleging medical negligence, the complainant filed a complaint on 22.11.2012, before the A.P. State Consumer Disputes Redressal Commission, Hyderabad (hereinafter called as "State Commission"), and claimed total compensation of Rs.70,50,000/-.
The State Commission after hearing both the parties and considering the evidence, partly allowed the complaint and directed the OP-1 and OP-3, jointly and severally, to pay compensation of Rs. 50,000/- and also costs of Rs. 5,000/-. The complaints against OP- 2 and 4 were dismissed.
Therefore, aggrieved by the impugned order, both the parties preferred first appeal. The First Appeal no. 1174/14 was filed by complainant, N. Laxmi and prayed for enhancement of the compensation, whereas another Appeal no. 1445/14 was filed by OP-3, Dr. Anuradha, for dismissal of the complaint.
We have heard learned counsel for parties. There is a delay of 26 days in filing the appeal by the complainant. We have perused the application for condonation of delay and are satisfied with the reasons cited in the application. Therefore, the short delay is hereby condoned.
On merit, the counsel for complainant, Ms. Prachiti R. Deshpande vehemently argued that the patient was treated wrongly in the OP-1 hospital, in the first instance. Thereafter, she suffered continuous abdominal pain which was ignored by the OP-3. Hence, she was compelled to take opinion from different hospitals. The CT scan done at M.N.J. Hospital and subsequent investigations done at KIMS Hospital, prove that there was some 'foreign' body, in her abdomen. Therefore, after re-surgery done by Dr. B.S. Rao in the Omni Hospital, it revealed two surgical mops which were removed. She contended that Dr. B.S. Rao issued a medical report on 04.09.2011, which clearly reveals the truth of the case.
We have asked the counsel that, if the patient's treatment was under 'Arogyashree Scheme', which was a 'free of cost', then, how does the patient deserve for any enhanced compensation? The counsel submitted that, because of negligence of OP-3, the patient had consulted several hospitals and was subjected for further re-surgery. Thus, patient incurred huge expenditure in other hospitals, like Osmania Hospital, Omni Hospital, KIMS, M.N.J Hospital, etc. Therefore, enhanced compensation is justified in the instant case.
The counsel for OP, Mr. Dushyant Parashar, submitted that there was a delay of 76 days in filing the appeal. We have taken note of the reasons stated in the application for condonation of delay. In the interest of justice, the delay is hereby condoned. The counsel vehemently argued that there was no negligence at all. On 15.03.2011, OP-3 performed the operation, it was the procedure of fixing a foreign mesh (mesh is a foreign body itself) on the periosteum of the sacral promontory. Vertical limb of the mesh is anchored to the periosteum of the sacral promontory and the horizontal limb of the mesh is anchored to the vault anteriorly and posteriorly. The entire surgery was videographed, as per prescribed norms of Arogyashree program. The patient was discharged from the hospital, on 23.03.2011, with instructions for the post-operative care and medicines. At the time of discharge from OP-1 hospital, the patient was found 'comfortable'. Thereafter, patient went to 3-4 hospitals, but nowhere, it was pointed out about the possibility of surgical mops, in the abdomen. Therefore, there was no negligence in treating the patient. Regarding the CT scan report, the counsel submitted that it was a case of carcinoma caecum; thus, even the CT scan did not find any trace of surgical mops. Therefore, this complaint should be dismissed. The counsel furnished written arguments also.
The counsel for OPs further submitted that, Dr. B.S. Rao from Omni Hospital, gave some hand written note, it was an afterthought, the mops were never found in the abdomen of the patient and same were fabricated. The counsel for OP, further argued that, no expert evidence was produced to prove this case of alleged medical negligence. In this context, counsel placed reliance upon the judgment of Hon'ble Supreme Court in case titled as Martin F. D'suza Vs. Mohd. Ishfaq I (2009) CPJ 32 (SC), State of Punjab Vs Shivaram 2005 (7) SCC 1 and the Bolam's Test (1957) 1 WLR 582,586. Hon'ble Supreme Court in its judgment Martin F. D'souza Vs. Mohd. Ishfaq in 2009 (3) SCC 1, held that doctors doing their duties with reasonable care would not incur liability, even if their treatment failed. Bolam test laid down in the Jacob Mathew case, for determining liability for medical negligence is reiterated. It also says that, simply because a patient has not favourably responded to treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of 'res ipsa loquitur'.
The counsel for OP also brought our attention to A.P. Medical Council Inquiry report, wherein it was stated that "there is no criminal negligence on the part of Dr. Anuradha and the allegation or leaving Mops is false."
To clear the dust in this matter, we have requisitioned file from the State Commission. We have perused entire medical record of OP-1 Mahesh Hospital, OG Hospital, MNJ Hospital, NBR Hospital, KIMS and OMNI Hospital. It is clearly mentioned that the patient was operated in OP-1 by OP-3, thereafter, patient had complained of persistent pain in abdomen, for which, patient was investigated by CT scan (Annexure-4). It was reported by M.N.J. Institute of Oncology & Regional Cancer Centre dated 12.08.2011, as below:-
"Moderately enhancing non homogeneous soft tissue density mass lesion seen in the ileocaceal region, caecum adherent to adjacent small bowel loop and mesocolon also invading the dome of the bladder on the right side measuring 111X4.7 cm S/o carcinoma caecum.
Well defined round lesion with multiple pockets of air seen in the RIF adjacent to the coeceal mass. S/o foreign body/mesh Few enhancing nodes seen in the mesentery largest measuring 1.8 X 1.9 cm Few right common iliac nodes seen largest measuring 1.6 X 1.4 cm Fatty infiltrations of the liver present."
E/o well defined round lesion with multiple pockets of air seen in the RIF adjacent to the coeceal mass. S/o Foreign Body/?mesh E/o few enhancing nodes seen in the mesentery largest measuring 1.8X1.9 cm.
At KIMS, the doctors performed colonoscopy on 18/08/2011 and the biopsy from the caecum was reported as "Chronic non-specific inflammation with ulceration, Caecal mucosa."
In addition, the Omni Hospital filed 6 photos of images showing cotton mops (Ex C-1, C-2) and the CD containing video recording of removal of surgical mops. Perused the CD and discharge summary dated 7/9/2011, which clearly and unequivocally prove the truth in this case. Dr. B.S. Rao, General Surgeon's findings and the relevant portion from discharge summary is reproduced as below: -
: Intra abdominal abscess with foreign body (surgical mops) and displaced mesh, post exploratomy laparotomy, post hemicolectomy.
Patient course in hospital: Patient admitted with the above complaints and sent for necessary investigations under the care of General surgeon and General physician and planned for exploratory laparotomy.
Operation notes: Patient was anaemic. 3 units of whole blood transfused. Patient was operated on 29.08.2011 and found to have inflammatory mass in right para colic gutter and around caecum. Mass contains ileal loops, omentum and 2 surgical mops and displaced previous mesh at right side of rectum. Adherent omentum are excised, adhesions are removed, 2 surgical mops are removed out. Infected mesh removed out and resection of loops of ileum (lacerated), caecum and ascending colon done and ileocolic anastomosis done."
We have also perused the handwritten note of Dr. B.S. Rao, but we do not find any controversy with the discharge summary. For enhancement of compensation, the counsel for complainant Ms.Prachiti relied upon the judgment of Hon'ble High Court of Madras in the case of Aparana Dutta Vs. Apollo Hospital, AIR (2000) Mad. 314. She had invited our attention to the first appeal decided by this Commission between Manager Parmarth Mission Hospital Vs. Yudhvir Chauhan, in which this Commission enhanced the compensation from Rs. 50,000/- to Rs. 4,00,000/-.
In this instant case, on 1/8/2011, the patient consulted Dr. Shobha Rao of NBR Hospital. As per her advice, Ultrasonography (USG) was performed at Srinivasa Diagnostic Centre on 6/8/2011. The USG was reported as "Dense Shadowing noted in RIF? Fecal Impaction in large bowel/? Mass lesion in RIF." Thereafter, the CT scan report at MNJ Hospital also revealed signs of 'foreign' body, in RIF. Hence, we are not hesitant to apply principle of res ipsa loquitur, in this case. The OP-3 failed in her duty of care, thus the surgical mops were left in the body of patient, after initial surgery. Therefore, the principles laid down in Martin D'souza or Jacob Mathew's case are not applicable to this case.
The principle of 'res ipso loquitur' has been discussed elaborately by by the Hon'ble Apex Court in V.Kishan Rao vs. Nikhil Super Speciality Hospital [(2010) 5 SCC 513], and in Spring Meadows Hospital, wherein it has been held, as follows:
"43. (supra) this Court was dealing with the case of medical negligence and held that in cases of gross medical negligence, the principle of 'res ipsa loquitur' can be applied. In paragraph 10, this Court gave certain illustrations on medical negligence, 28 where the principle of res ipsa loquitur can be applied."
We are not concerned with the criminal case registered u/s. 337 IPC vide FIR No. 313/11. The A.P. Medical Council exonerated the OP for Criminal negligence. We are not bound by the decision of AP Medical Council. The decision was given without considering the Omni Hospital records, thus it appears to be just, an eye-wash.
The patient unnecessarily had to roam around a number of hospitals for her complaints of continuous abdominal pain after 1st surgery (15/3/2011) done by OP-2 and finally patient's re-surgery was performed at OMNI hospital, after almost 6 months (27/8/2011). Therefore, in our view, the State Commission ignored the sufferings, the expenditure and agony of the patient. Commercialisation of medical services to be taken in account, and the patients have to incur expensive medical treatment, therefore, we feel that the award of Rs.50,000/- by the State Commission falls well short of being, 'just and reasonable' compensation, for what the complainant has undergone.
We take reliance from the landmark decision of Hon'ble Supreme Court in Kunal Saha's Case (2014) 1 SCC 384, which discussed the principles involved in determination of compensation, in cases of medical negligence. Hon'ble Supreme Court has held that there is no restriction that, courts can award compensation only up to what is demanded by the complainant. "It is the duty of Tribunals, Commissions and Courts to consider relevant facts and evidence in respect of facts and circumstances of each and every case, for awarding just and reasonable compensation. (Para 84) "The principle of just and reasonable compensation is based on "Restitutio In Integrum" that is, the claimant must receive the sum of money which would put him in the same position, as he would have been, if he had not sustained the wrong." (Para 91) No doubt, the patient was operated, 'free of cost', under Arogyashree Scheme, but subsequently, as per record and bills, she incurred medical expenditure in different hospitals. She had to bear physical sufferings and mental agony. As per records and bills (Annexure P-5) the patient incurred expenditure of around Rs.3 lacs, in different hospitals. Applying the above principles of Kunal Saha's Case to the facts and circumstances of the instant case, we, therefore, enhance the compensation from Rs.50,000/- to Rs. 4,00,000/-. Further, having held it to be a case of gross medical negligence, we also award a sum of Rs.1,00,000/- as punitive damages.
Hence, on the basis of foregoing discussion, the appeal FA1445/2014 filed by the OP-3 is dismissed and the appeal FA.1174/2014 filed by the complainant, is allowed by modifying order of State Commission as:-
The OP1 and 3 are directed to pay jointly and severally a total sum of Rs. 5,00,000/- (Rs. Five Lacs only) to the complainant and Rs.10,000/- (Rs. Ten Thousand only) towards costs, within 90 days from the date of receipt of copy of this order, otherwise, the said amount will carry interest @ 9% p.a., till their realisation.
List for the compliance report, on 18th August 2015. 18/18 ......................J J.M. MALIK PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER