National Consumer Disputes Redressal
Leela G. Nair vs Prof. Dr. K.P. Haridas on 25 March, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 522 OF 2008 (Against the Order dated 20/06/2008 in Complaint No. 6/2005 of the State Commission Kerala) 1. LEELA G. NAIR 402, Sh. Gurdev Building, 4th Floor, Sane Guruji Nagar, 90 Road, Mulund (East) Mumbai - 400 081 Maharashtra ...........Appellant(s) Versus 1. PROF. DR. K.P. HARIDAS (Consultants), Lords Hospital, Anayara, P.O. Thiruvananthpuram Thiruvananthpuram Kerala 2. THE MANAGING DIRECTOR Lords Hospital, Anayara, P.O. Thiruvananthpuram Thiruvananthpuram Kerala 3. ORIENTAL INSURACE CO. LTD. Rohini Bldg., Thakaraparambu Thiruvananthpuram Kerala ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE D.K. JAIN, PRESIDENT HON'BLE MR. VINAY KUMAR, MEMBER For the Appellant : Mr. Lohit K. Bimal, Advocate For the Respondent : Mr. Reegan S. Bel, Advocate for Mr. Jogy Scaria, Advocate for R-1,2 Mr. Mohan Babu Agarwal, Advocate for R-3 Dated : 25 Mar 2015 ORDER Consumer Complaint No. OP/6/2005 was filed Mrs. Leela G. Nair before the Kerala State Consumer Disputes Redressal Commission. The matter arose out of a surgery performed on the Complainant by OP-1/ Dr. K.P Haridas at OP-2/ Lords Hospital, Trivandrum. It was performed on 1.4.2003 for removal of an ovarian cyst and repair of umbilical hernia. She was discharged on 9.4.2003.
2. Within a few days, on 17.4.2003 she was readmitted to OP-2/hospital with complaint of severe abdominal pain and was informed that it was due to gastritic problem. On 19.4.2003 she was discharged with the advice that she should get well in a few days. The problem and resultant suffering continued till investigations at Wockhardt hospital, Mumbai in September, 2003 revealed the presence of a foreign metallic object in her abdomen, which had to be removed in a subsequent surgery performed there on 20.9.2003.
3. In reply, OP-1/Dr. K.P.Haridas admitted the fact of surgery on 1.4.2003 and discharge of the patient on 9.4.2003. However, his case was that when she was readmitted on 17.4.2003, it was with symptoms of gastritis and that she had fully recovered when she was discharged on 19.4.2003. The allegation relating to leaving behind a surgical instrument in her abdomen, in the surgery of 1.4.2003, was specifically denied. As per OP-1, no instruments were found missing at Lords Hospital and the needle holder /forcep claimed to have been recovered from the abdomen of the Complainant did not belong to OP-2/hospital.
4. The State Commission allowed the complaint holding OPs 1 and 2 jointly and severely liable to pay compensation of Rs.3,46,000, together with cost of Rs.20,000, to the Complainant. OP-3/Oriental Insurance Company Ltd. was directed to indemnify OP-1, under the insurance policy. It was also directed that if the awarded amount was not paid within two months, it shall also carry interest at 10% from the date of the order.
5. The above award has not been challenged by the OPs. But, the Complainant has filed an appeal seeking enhancement of the awarded amount. We thus, have case in which findings of fact have remained unchallenged. Therefore, we do not deem it necessary to re-examine the evidence on which the findings of fact are based. Consideration of the appeal is limited to the prayer for enhancement.
6. We have heard Mr. Lohit K. Bimal, Advocate at length for the Appellant/ Complainant and Mr. R.S.Bel, with Mr. Jogy Scaria, Advocate for Respondent/OP-1 and 2 and Mr. Mohan Babu Agarwal, Advocate for Respondent/OP-3. We have also considered the records in detail. The appeal has been filed with delay of 134 days. We have considered the details submitted in the application explaining it and have condoned the delay.
7. In paras 15 to 19 of the impugned order detailed examination of the evidence has been made to arrive at the relevant finding. The State Commission has held that the metallic object (surgical Needle holder) was taken out of the abdomen of the Complainant in a subsequent operation performed at Wockhardt Hospital, Mumbai on 20.9.2003. The appendix of the Complainant was found to be entangled with it. It was separated and appendectomy was completed. The State Commission has given a clear finding on how the metallic object (surgical needle holder) happened to be lodged in the lower abdomen of the Complainant. It has held that the needle holder would have been left there by OP-1/Dr. K.P.Haridas or any member of his surgical team, while conducting the surgery at OP-2/hospital. The impugned order has corroborated this finding with the evidence of Dr. Prasanna Kumar, who had conducted the ultrasound on the Complainant on 29.3.2003, i.e. just before the surgery of 1.4.2003. As per his testimony, no such object was noticed in her lower abdomen. Five months later, the ultrasound of 19.9.2003, done at Wockhardt hospital, showed a dense object in the abdomen of the Complainant, suggesting the presence of a metallic instrument.
8. From the above, it is abundantly clear that the Complainant Mrs. Leela Nair had to live with this surgical instrument in her abdomen with all its medical consequences, from 1.4.2003 to 20.9.2003. As already noted in this order, her case was that she had been readmitted in OP-2/ hospital with heightened pain in her pelvic and abdomen region. She was treated by OP-1. In her own words, as stated in the Consumer Complaint :
"The doctors wrongly concluded that the said pain in the abdomen of complainant is because of gastic trouble and accordingly after giving some treatment and recomending some costly medicines. The complainant states that despite the abovesaid treatment and prolonged checking, complainant again and again felt the pain and complained about the pain to Opposite party No.1, but however Opp. Party No.1 did not take effort to treat complainant properly. The Complainant even conveyed to them about her fear that something was left, lying in her abdomen, but however at all time, opp. party No.1 ruled out that nothing is left inside nor anything is wrong with the treatment, operation performed on her and opposite party No.1 also assured her that after a span of time all things will be alright."
9. The State Commission has awarded following relief to the appellant/complainant--
Cost of treatment at OP-2 Hospital Rs. 25,310/- Cost of treatment at Wockhardt, Mumbai Rs. 95,360/- Towards future expenses Rs. 75,000/- Travel and incidental expenses Rs. 1,00,000/- Mental agony and suffering Rs. 50,000/- Total, rounded off to Rs. 3,46,000/-
10. De hors the above award, following prayer has been made in the appeal filed by the Complainant, seeking enhancement of relief awarded by the State Commission:-
"(i) allow the present appeal and enhance the compensation to Rs.20 lacs both towards mental agony and harassment suffered by the complainant as also the compensation towards loss of comfort and enjoyment in life and future medical expenses to be incurred by the appellant on account of her ill health;
(ii) enhance the compensation to Rs.30 lacs towards operation and other incidental expenses;
(iii) enhance the compensation to Rs. 10 lacs towards future expenses in favour of the Appellant and against the Respondent No.1 & 2;
(iv) award exemplary punitive damages in favour of the appellant and against the respondents;
(v) enhance the cost of litigation in favour of the appellant and against the respondents;
(vi) pass any other/further Order (s) in favour of the appellant as this Hon'ble Commission may deem fit in view of the circumstances of the present case."
11. The main grounds urged, focus on the physical and mental agony suffered by the Complainant due to--
negligence in the conduct of surgery on 1.4.2003 resulting in the surgical needle holder being left behind in the abdomen;
failure of the OPs to make a proper diagnosis of the real problem, even when she was readmitted to OP-2 hospital for two days from 17th to 19th April 2003, subsequent to the surgery of 1.4.2003, and failure to refer her to a specialist for proper diagnosis and treatment.
It is also contended that it was a case of gross medical negligence for which punitive damages should have been awarded. These contentions of the appellant/complainant would derive endorsement in the following observation in the impugned order--
23. The evidence of PW4, the doctor attached to Wockhardt Hospital, Mumbai and P14 X-ray report and P15 X-ray of abdomen issued from Department of Radiology, Workhardt Hospital, Mumbai would make it clear that the doctors at Wockhardt hospital, Mumbai at the first instance itself took the X-ray Abdomen and they could detect the presence of a metallic foreign body in the pelvis of the complainant. It was further confirmed by taking ultra sound scanning and CT scanning. It is to be noted that the complainant herein approached the Workhardt hospital, Mumbai with the complaint of vomiting and abdominal pain and with the history of abdominal hysterectomy in 1994 and the history of left ovarian cystectomy, appendiceotomy and hernia repair done in April 2003. On getting the complainant with the aforesaid history they took the X-ray abdomen without any hesitation. But at the same time the 1st opposite party Dr. K.P. Haridas and the 2nd opposite party, Lords Hospital, Thiruvananthapuram, totally failed in adopting any such method of investigation to find out the cause of vomiting and abdominal pain. If an X-ray abdomen of the complainant was taken on 17.4.2003 when the complainant was again admitted at the 2nd opposite party hospital, the opposite parties 1 and 2 could have detected the presence of a metallic foreign body in the lower abdomen of the complainant. It is to be noted that the complainant approached the 1st opposite party Dr. K.P.Haridas at the 2nd opposite party hospital on 17.4.2003 with the complaint of vomiting and abdominal pain. But the 1st opposite party took the said symptoms as that of gastritis."
We find ourselves in complete agreement with the above observation of the State Commission. Had diagnostic procedures like X-Ray, ultrasound and CT scan been done at OP-2, when the complainant was readmitted from 17th to 19th April, with clear complaint of persistence of her abdominal pain, existence of the surgical needle holder could have been detected at OP-2 itself. Failure of the OPs to do so, became the direct cause for continued suffering of the complainant till the corrective surgery of 20. 9.2003 at Wockhardt, Mumbai.
12. On behalf of the Respondents/OPs it has been urged that the amount awarded by the State Commission has already been paid to the Complainant and that the appeal for enhancement has been filed subsequently. While the award of the State Commission has not been challenged, the appeal for enhancement has been strongly opposed. Nevertheless, during the course of the present proceedings, learned counsel for the Respondents/OPs was advised to seek instructions whether the OPs were willing to offer any additional ex-gratia amount in full and final settlement and subject to the Complainant withdrawing the allegation of medical negligence. The Commission was informed that the OPs were not willing to seek any amicable settlement of the dispute.
13. During the course of these proceedings, learned counsel for the appellant/complainant was permitted to submit details regarding the condition of the complainant after the surgery in an additional affidavit, with a copy to the other side. This affidavit states that with swelling of the abdomen in the area of surgery, she is unable to lead normal life. Being unable to digest normal food (roti, dal, subzi etc), she has to live on semi-solid food (khichri). For several years now she is on pain killers and antibiotics, which are harming other organs of her body. As per this affidavit, her son, who is the sole provider for her family, is meeting her medical expenses of about Rs.10,000/- a month. In support, records of medicines prescribed and purchased have been filed. But we find that these records are for the period upto 2004 and not beyond. Thus, the expenditure claim of Rs.10,000/- per month remains unsubstantiated. Therefore, we find no case for enhancement of compensation on account of future medical expenses.
14. The appellant has also sought punitive damages to be imposed on the ground that the case is one of gross negligence. This evidently refers to negligence in leaving the surgical needle holder inside the abdomen of the complainant. As per evidence referred to earlier in this order, there was evidence from the ultrasound before the surgery at OP-2/Lords Hospital to show absence of any metallic object in her abdomen and there was evidence from X-Ray, ultrasound and CT scan, a day before the subsequent surgery at Wockhardt, to show its presence therein. The surgery of 1.4.2003 at OP-2/Hospital falls in between the diagnostic tests of 29.3.2003 and 19.9.2003. It is thus a case where the facts would speak for themselves that is a case of 'Res Ipsa Loquitur'.
15. Hon'ble Supreme Court considered the applicability of Res Ipsa Loquitur to the case of medical negligence in Jacob Mathew (Dr.) Vs. State of Punjab & Anr., III (2005) CPJ 9 (SC) and has observed:
"27. No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitur is not of universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors. Else it would be counter productive. Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur."
28. Res ipsa loquitur is a rule of evidence which in reality belongs to the law of torts. Inference as to negligence may be drawn from proved circumstances by applying the rule if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant."
16. In the case before us, the only reasonable explanation for the presence of the surgical needle holder in the abdomen of the Complainant is that it was left there in the surgery of 1.4.2003. Therefore, in our view, the finding of negligence in conduct of the surgery at OP-2 remains un-assailed. Further, absence of any evidence of effective diagnosis from 17.3.2003 to 19.3.2003 would make it a case of gross medical negligence.
17. We also deem it necessary to look at the pleadings of OP-1 before the State Commission from another standpoint, viz of professional ethics. In his written statement before the State Commission Dr. K.P. Haridas/OP-1 has not stopped at denial but has gone on to claim that "pre-operative and postoperative instrument count was taken at the time of surgery on complainant at the Lord's Hospital. No instrument was missing at the Lord's Hospital. The instrument alleged to have been recovered from the complainant's abdomen definitely does not belong to Lord's Hospital." This is nothing short of an admission of what had happened. If he was absolutely certain, as claimed here, that no instrument was left behind in the abdomen of the complainant, there was no reason for him to ascertain the marking on the instrument which was eventually recovered from her abdomen. It is shocking, to say the least, that a surgeon who did not consider it necessary to take an X-Ray or Ultra sound despite specific, post-operative complaint of the patient, found it necessary to ascertain the marking on the surgical instrument recovered from her abdomen, in a subsequent surgery performed elsewhere. We therefore, have no hesitation to reject this claim of Dr. K.P.Haridas as factually and ethically unacceptable.
18. As observed earlier in this order, stark reality is that had the requisite diagnostic tests mentioned earlier, been done when the complainant had returned to the OPs on 17.3.2003, presence of the surgical needle holder in the abdomen of the complainant would have been detected, just as it happened five months later at Wockhardt Hospital, Mumbai. The complainant would have been spared the pain and suffering of five months. In this view of the matter, the question that arises is whether the complainant has been adequately compensated or not.
19. Dr Balram Prasad Vs Kunal Saha 2013 (13) SCALE is a landmark decision, pronounce by Hon'ble Supreme Court of India on 24.10.2013. The decision makes a wholistic review of the principles involved in determination of compensation in cases of medical negligence. It was a case where the hospital and the treating doctors were held liable for medical negligence involving wrong diagnosis and faulty treatment. 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)
20. Applying the above principles to the facts and circumstances of the case before us, we are of the view that award of Rs 50,000/- towards 'Mental agony and Suffering' in the impugned order, falls well short of being 'just and reasonable' compensation for what the complainant has undergone. We therefore enhance this part of the compensation from Rs.50,000/- to Rs. 3,00,000/-. 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. Consequently, the total award amount stands enhanced from Rs.3,46,000/- to Rs.6,96,000/-. The same (excluding the amount already paid) shall be paid to the appellant/complainant within two months. Failing this, it shall carry interest at 10% per annum. No change in the amount awarded towards costs.
21. The appeal is allowed in the aforesaid terms.
......................J D.K. JAIN PRESIDENT ...................... VINAY KUMAR MEMBER