National Consumer Disputes Redressal
Dr.R.K.Jain & Ors./Smt. Kamla Devi vs Smt.Kamla Devi/The Medical ... on 22 August, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 168 OF 2007 (From the order dated 19.12.2006 in Complaint No.C-266/97 of the State Commission, Delhi) Dr.R.K.Jain & Ors. Appellants Versus Smt.Kamla Devi Respondent FIRST APPEAL NO. 600 OF 2007 (From the order dated 19.12.2006 in Complaint No.C-266/97 of the State Commission, Delhi) Smt.Kamla Devi Appellant Versus The Medical Superintendent, Sunder Lal Jain Hospital Respondent BEFORE: HONBLE MR. JUSTICE ASHOK BHAN, PRESIDENT HONBLE MRS. VINEETA RAI, MEMBER For the Appellants : Dr.Sushil Kumr Gupta, Advocate (F.A.No.168/2007) For the Respondent/ : Mr. Himanshu Buttan, Advocate Appellant (F.A.Nos.168/ 2007 & 600/2007) Pronounced on 22nd August, 2012 ORDER
PER VINEETA RAI, MEMBER Dr.R.K.Jain & Ors. (hereinafter referred to as the Appellants) have filed F.A. No.168/2007 being aggrieved by the order of the State Consumer Disputes Redressal Commission, Delhi (hereinafter referred to as the State Commission) in Complaint No.C-266/1997 which was decided in favour of Smt.Kamla Devi, Complainant before the State Commission and Respondent herein who has also filed F.A. No.600/2007 against the same order being aggrieved by the lesser compensation awarded by the State Commission. Since the two appeals have arisen from the same order of the State Commission, it is decided to dispose of these appeals by a common order by taking the facts from F.A.No.168/2007.
In her complaint before the State Commission, Respondent had stated that on 13.11.1995 she was admitted in Sunder Lal Jain Hospital (hereinafter referred to as the Appellant/Hospital) with complaints of pain in the abdomen and vomiting where she was under the treatment of Dr.R.K.Jain (Appellant No.1 herein) and Dr.S. Mehta (Appellant No.2 herein). She was operated upon on 15.11.1995 and discharged on 20.11.1995.
However, even after the surgery Respondent continued to be in severe pain and therefore on the advice of Appellant No.1, she was re-admitted to the Appellant/Hospital on 23.11.1995 where she was operated for burst abdomen on 24.11.1995 and discharged on 04.12.1995.
Following the second surgery, Respondents condition deteriorated and she continued to suffer from severe pain and felt very weak. She visited the Appellant/Hospital for the next two days where another operation was advised by Appellant No.1. However, since Respondent had lost faith in the Appellant/Hospital, on the advice of her family members, she went to Mumbai on 18.01.1996 where she was admitted in Ashish Maternity & Nursing Home where she was found to have Gauze/F.B.(MOP) in her operated wound which had become infected. Respondent was operated for removal of the said Gauze and thereafter discharged in a satisfactory condition on 25.01.1996. Dr.Bhansali Hemant who examined and treated the Respondent at the Nursing Home in Mumbai informed her that the infection was caused because of the Gauze/F.B.(MOP) and once this was removed, her medical condition became satisfactory.
However, since she had to suffer a lot of pain and agony due to the rash and negligent acts of the Appellants/Doctors at the Appellant/Hospital which included two unnecessary surgeries, Respondent apart from filing a criminal case which is pending decision in the concerned Court, also filed a complaint before the State Commission on grounds of medical negligence and deficiency in service and requested that Appellant/Hospital and Doctors be directed to jointly and severally pay her Rs.15 lakhs as compensation along with interest @ 18% per annum from the date of filing of the complaint.
The Appellants challenged the above allegations and stated that the Appellant/Hospital is a well-equipped hospital providing excellent indoor and OPD facilities for treatment. It is a fact that Respondent had visited the Appellant/Hospital for treatment on 13.11.1995 with complaints of non-passage of flatus, distension of abdomen and vomiting and after conducting the necessary clinical and diagnostic tests, since her condition had not improved through the conservative treatment, she was advised surgery on 15.11.1995 after obtaining due consent. During the surgery a stricture in the proxymul ileum was found which was rectified by performing stricturoplasty and the Respondent was discharged in a satisfactory condition on 20.11.1995. Admittedly, the second surgery was performed on 24.11.1995 following complaints of loose motions and vomiting but during the second surgery the abdomen was not opened and only the earlier wound was resutured. The allegations of presence of a foreign body(Gauze) in the abdomen is totally false and not borne out by the evidence on record because following the first surgery, an X-ray was done wherein it was clear that there was no presence of any foreign body or any other abnormalities.
After the second surgery, where only the wound was resutured, according to the Respondent, Dr.Bhansali Hemant had noticed strands and fibres of gauze during the examination of the wound. However, this contention of Dr.Bhansali is not corrected as confirmed by photographs which were filed in evidence.
It was further contended that the possibility of the Respondent having sought treatment in some other hospital following her discharge in a satisfactory condition from the Appellant/Hospital where this lapse could have occurred cannot be ruled out because she went to Mumbai for further treatment after about 45 days of her discharge from the Appellant/Hospital.
The State Commission after hearing both parties and on the basis of evidence filed before it concluded that there was negligence on the part of the Appellant/doctors who while resuturing the wounds left strands of fibres and gauze in the wound. The relevant part of the order of the State Commission reads as follows:
There is no doubt that the doctors who operated upon the complainant were well qualified and had the skill to operate the complainant for the disease she was suffering from. But in this case the negligence is apparent because during the operation may be that the operating doctors might have left the case to junior doctors for stitching the wound the strands and fibres of gauze might have been left in the abdomen of the complainant. Had it not been so the complainant would not have suffered such a pain after the successful first operation and even after the second operation. It was only on third operation done by the Bombay Hospital who removed these strands and fibres of gauze/mop that the complainant became alright.
However, in the given facts and circumstances of the case as well as the strands and fibres of gauze having been found in the abdomen of the complainant by an independent doctor who had neither professional rivalry nor enmity with the OPs, we deem that lumpsum compensation of Rs. 50,000/- would meet the ends of justice.
Hence, the present Appeals.
Learned Counsel for both parties made oral submissions. Counsel for Appellants stated that the State Commission erred in concluding that the Appellants/Doctors had been negligent in leaving strands of Gauze while suturing the wound during the second surgery on 24.11.1995. This is well-demonstrated by the photographs filed in evidence. Counsel for Appellants further contended that as per the evidence of Dr.Bhansali Hemant before the State Commission nowhere has he stated that there was any gauze or foreign body left inside the abdomen of the Respondent as alleged by her for which she has sought huge compensation. On the other hand, Dr.Bhansali clearly stated that the gauze piece was superficial in the wound and was extra-peritoneal. Even this lapse perhaps occurred in some other hospital and not in the Appellant/Hospital as confirmed by photographs referred to earlier.
Learned Counsel for Respondent on the other hand while reiterating the submissions made before the State Commission, denied that the Respondent has sought treatment in some other hospital where this lapse might have occurred. Counsel for Respondent brought to our notice the recordings of Dr.Bhansali Hemant in the Discharge Card wherein it is clearly stated that Respondent had been referred to him for second opinion with a history of surgery from the Appellant/Hospital in Delhi. Had the Respondent visited any other doctor or hospital, she would have not hidden this fact from Dr.Bhansali. Counsel for Respondent further stated that even though the State Commission had found the Appellants guilty of medical negligence despite their being qualified doctors, the meagre compensation of Rs.50,000/-
awarded was not commensurate with the mental agony and harassment suffered and expenditure caused to the Respondent. It was contended that even after Respondent was treated by Dr.Bhansali, she continues to feel weak and therefore, a higher compensation as requested for is fully justified in the interest of justice.
We have heard learned Counsel for both parties and have gone through the evidence on record. The fact that the Respondent was admitted for surgery at Appellant/Hospital which was performed on 15.11.1995 is not in dispute. It is also not disputed that Respondent underwent another surgical procedure in Appellant/Hospital on 24.11.1995. It is also an admitted fact that since Respondent did not get relief after the two surgeries and discomfort and pain continued, she went to Mumbai on the advice of her relatives and sought treatment in Ashish Maternity & Nursing Home where Dr.Bhansali Hemant after conducting a diagnostic laparoscopy noted that there was a gauze/F.B.(MOP) which was in the wound and which was infected because of which Respondent had suffered discomfort.
Appellants have stated that there is no evidence to prove that this gauze was left in the Appellant/Hospital by the Appellants/Doctors. Appellants have also contended that obviously this lapse occurred in some other hospital which the Respondent visited following her discharge from the Appellant/Hospital and before her admission at Ashish Maternity & Nursing Home in Mumbai. We are unable to accept this contention of the Appellants in the absence of any evidence of the same. We find force in Respondents contention that if indeed she had visited another hospital after her discharge from Appellant/Hospital, she would have divulged this fact to Dr.Bhansali who would have recorded the same in the case history. We are also not able to conclude from the photographs that there was no foreign material was in the wound. The State Commission being a first court of fact had on the basis of evidence filed before it concluded that this lapse has occurred in the Appellant/Hospital. We have no reason to disagree with this finding of the State Commission. Counsel for Appellants has contended before us that since there is no risk was caused to the life or health of the Respondent as confirmed by Dr.Bhansali, the State Commission erred in concluding that Appellants were guilty of medical negligence. The principle of what constitutes medical negligence is now well established in a series of judgments of the Honble Supreme court including in Jacob Mathew Vs. State of Punjab & Anr.
(2005) 6 SCC 1 in which the Constitution Bench of the Honble Supreme Court reaffirmed inter alia that the test for determining medical negligence as laid down in the Bolams case (Bolam Vs. Friern Hospital Management Committee (1957)1 WLR
582) would hold good in its applicability in India. In the instant case of a particular relevance is the ruling of the Honble Supreme Court in Achutrao H.Khodwa Vs. State of Maharashtra AIR 1996 SC 2377 wherein it has been inter alia observed as follows:
The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care (emphasis supplied).
Following the above principles, the Honble Supreme Court had concluded in this case that since a foreign body was left in the system during the surgery, it clearly indicated that reasonable degree of care was not taken and therefore, it amounted to medical negligence. Respectfully following this judgment in the instant case where the facts are similar to the extent that here also a foreign object was left in the Respondents wound during the course of surgery, we conclude that the Appellants are guilty of medical negligence and deficiency in service and uphold the order of the State Commission in this respect.
So far as the First Appeal No.600/2007 of the Respondent for enhancement of the compensation amount is concerned, we note that her contention that she has suffered a lifelong disability and weakness is not borne out by any evidence on record. Even Dr.Bhansali Hemant has confirmed that there was no risk to her life or health as a result of the gauze/F.B.(MOP) left in her wound. We are, therefore, of the view that the compensation of Rs.50,000/- awarded by the State Commission is adequate keeping in view the circumstances of this case.
To sum-up, we uphold the order of the State Commission in toto.
The First Appeals are dismissed accordingly.
We note that an amount of Rs.25,000/- has already been released to the Respondent as per order dated 23.11.2007 of the this Commission. If that be so, Appellants are directed to jointly and severally pay the Respondent, the balance amount of Rs.25,000/- within a period of one month from the date of receipt of this order.
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(ASHOK BHAN J.) PRESIDENT Sd/-
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(VINEETA RAI) MEMBER /sks/