State Consumer Disputes Redressal Commission
Sunila Sharma vs Dr. Amrita Rai on 6 April, 2022
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UP C-1 Vikrant Khand 1 (Near Shaheed Path), Gomti Nagar Lucknow-226010 First Appeal No. A/213/2022 ( Date of Filing : 29 Mar 2022 ) (Arisen out of Order Dated 15/12/2021 in Case No. C/2020/208 of District Kushinagar) 1. Sunila Sharma Sunila Sharma w/o Sri Vinod Kumar Sharma Nirmal Patti Khairi Kushinagar ...........Appellant(s) Versus 1. Dr. Amrita Rai Dr. Amrita Rai Belva Chungi Baypass Road Padrauna District Kushinagar ...........Respondent(s) BEFORE: HON'BLE MR. Rajendra Singh PRESIDING MEMBER HON'BLE MR. SUSHIL KUMAR JUDICIAL MEMBER HON'BLE MR. Vikas Saxena JUDICIAL MEMBER PRESENT: Dated : 06 Apr 2022 Final Order / Judgement Reserved State Consumer Disputes Redressal Commission U.P. Lucknow. Appeal No. 131 of 2022 Dr. Amrita Rai c/o ShreejanHospital, Kasya Road, Padrauna, Kushinagar - 274304 ...Appellant Versus 1- Smt. Sunila Sharma , W/o Sri Vinod Kumar, R/o Sakin Juda-Chapra (Nimalpatti), Post- Kairi, District Kushinagar 2- ICICI Lombard ]Gen Insurance Company through its manager, ICICI Lombard House, 414, Veer Sawarkar Marg, near Siddhivinayak Temple, Prabhadevi, Mumbai - 400025 ...Opp. Parties. AND Appeal No. 213 of 2022 Smt. Sunila Sharma, aged about 33 years W/O Sri Vinod Kumar, R/o Sakin Juda - Chapra ( Nirmalpatti ), Post- Kairi, District -Kushinagar Versus Dr. Amrita Rai c/o Shreejan Hospital, Belwa Chungi, Bypass Road, Padrauna, Kushinagar Present:- 1- Hon'ble Sri Rajendra Singh, Presiding Member. 2- Hon'ble Sri Sushil Kumar, Member. 3- Hn'ble Sri Vikas Saxena, Member. Sri Sankalp Mehrotra,Advocate for complainant. Sri B K Upadhyaya, Advocate for the OP no.1. Date : 18.04.2022 JUDGMENT
Per Mr. Rajendra Singh, Member: the appeal number 131/2022 has been filed by the appellant Dr Amrita Rai under section 41 of the Consumer Protection Act 2019 against the judgement and order dt 15.12.2021 passed in the complaint case no 208 of 2020 , Dr Amrita Rai Vs Sunil Sharma by the learned District Commission Kushingar.
The main grounds of appeal are that, that the complainant has been filed by the complainant before the Learned District Consumer Redressal Commission, Kushinagar and subsequently the learned District Consumer Commission has arbitrarily and erroneously allowed the complaint of the complainant/respondent no.1 and passed ex-parte judgment and order dtd 15.12.2021 against the appellant. The impugned judgement and order has been passed in an illegal manner and without perusing the entire facts of the case and by erroneously presuming the service of notice of the complainant case sufficient on the appellant. The Learned Commission has erroneously held that the service on the appellant was sufficient, as a matter of fact, the appellant never received any notice as such could not appear and contest the case before the learned District commission. The appellant came to know about the said complaint case and the ex parte order, when the appellant received a copy of summon in respect of execution case filed by the opposite party no 1 before the Learned Commission, Kushinagar, which was arrested as Execution Case no 08/2022. The appellant was not able to present its case and file a second statement and evidence before the Learned District Commission, as such, the true anchor effects of the case could not come Before the Learned Commission has, the ex-parte judgment and order dated 15.12.2020 was passed erroneously by the Learned Commission. The appellant took professional indemnity insurance for doctor and medical practitioners from ICICI Lombard General Insurance Company bearing policy no 4021/1717 09553/00/000 for the period 14.06.2019 to 13.06.2020 as such if, at any point of time, the Hon'ble Commission reaches to the conclusion that liability arises out against the appellant the same can only be fastened on the ICICI Lombard Gen Insurance Company.
The liability is fastened on the appellant by the Hon'ble commission has that as per the ex parte judgement and order, as such the ICICI Lombard Gen Insurance Company is liable to indemnify the appellant and the said insurance company is proper and necessary party in the present matter and therefore, is impeded as opposite party no 2 in the present appeal. There is no wilful order deliberate attempt from the of the appellant to avoid the court proceedings therefore, in case the complaint case is not restored on its original number for adjudication on merits, the appellant will suffer irreparable loss and injury. There is no negligence on a deficiency in service on the part of the appellant as such no liberty can be fastened against the appellant/opposite party. The ex parte judgement and order dtd 15.12.2021 passed by the learned District commission care that is not sustainable in the eyes of law and same is liable to be recalled and set aside by the Hon'ble Commission and the complaint case may be restored to its original case number for adjudication on merits in in the interest of justice.
In appeal No.213 of 2022, the brief facts of the appeal are that, the opposite party, Dr caused extreme negligence in the operation and left a cotton pad of 6 inch X 3 inch X 1 inch in the lower abdomen after the cesarian delivery of child. The learned District commission care that has the opposite party liable for this negligence but imposed only a meagre amount of ₹4lakhs towards compensation. Theappellant/complainant demanded the compensation of Rs 15,39,752/ . Hence the present appeal is filed to enhance the compensation. After filing of the complaint before the learned District Consumer Commission, a notice has been sent to the opposite party through speed post on 04.01.2021. The address of the opposite party with PIN 274304 has been entered and the copy of the notice has been filed by the opposite party in her appeal no 131 /2022 , not only this, the opposite party has also filed the copy of the notice issued to her in the execution case no 08/2022 and admitted herself to receive the notice of the execution case. Same address has been entered in the execution case and also in the complaint case which clearly shows that the respondent/opposite party had received the notice of the complaint case and also the track report of the speed post is being filed here and she intentionally did not submit written statement in the complaint case. The service of notice had been presumed vide order dated 02.08.2021 and it is also clear from the questionnaire dated 26.03.2022 .So she has wrongfully stated that she did not get the notice of the complaint case.
The Hon'ble NCDRC has said that if the opposite party did not file its statement within 45 days from the date of service of notice, he/she cannot get benefit during appeal proceedings. Therefore it is very complete prayed that the compensation be enhanced from ₹ 400,000 ₹ 1,539,752 with interest at a rate of 12% from the date of filing of the complaint. Hon'ble the Supreme Court has stated that during COVID 19, the period shall be excluded from the limitation and also Hon'ble NCDRC has published separation in this regard. Hence this appeal is within time. Therefore it is very complete prayed from the Hon'ble State Commission to enhance the compensation from ₹ 4 lakhs to ₹ 15,39,752/with interest at a rate of 12% and also to award cost of the appeal be 2000/, cost for the mental agony ₹ 50,000/and cost of the case ₹ 2000/and also any other relief which the Hon'ble State Commission deems fit.
We have heard the learned counsel for the appellant/ Dr. Amrita Rai Sri Sankalp Mehrotra and learned counsel for the respondent/complainant Sri B.K. Upadhyay. We have also perused the evidence, pleadings and documents on record.
First we discuss about the ex parte judgment as alleged by the appellant in appeal no 131/2022. In the connected appeal copy of the receipt of the speed post has been filed and also the copy of track report of the speed post of the execution case has been filed which shows that the item delivery confirmed on 27 January 2022. We have seen the address as written on the complaint case which is "Dr. Amrita Rai Srijan Hospital, BelwaChungi Bypass Road, Padrauna, District -Kushinagar". The appellant in her appeal shows the following address of herself Dr. Amrita Rai C/o Srijan Hospital, Kasya Road, Padrauna, District -Kushinagar". The appellant has filed the copy of the noticewill her appeal in which the address shown is "Dr. Amrita Rai Srijan Hospital, Belwa Chungi Bypass Road, Padrauna, District-Kushinagar". When the notice of execution has been delivered on her with the same address as that of the complainant filed before the Learned District Commission, so there is no ambiguity in the address of the appellant. Both addresses are the same. Hence to say that she did not get the notice of the complaint case is false and frivolous. The appellant has also filed the copy of the order sheet of the complaint case with her appeal. We perused the order sheet and that the notice has been issued on 21 November 2020. So many dates have been fixed in the complaint case and ultimately on 02.08.2021 the learned District commission presumed the service of notice sufficient on the opposite party which is just and legal. So there is no force in the allegation of the appellant that she did not get the notice of the complaint case.
Now we come to the appeal of the complainant which has been filed to enhance the compensation. The appellant has stated that she has conceived for the first time and went to the opposite party Dr. Amrita Rai, Srijan Hospital on 07.05.2020. Dr. Amrita Rai called her on 25 May 2020 and she was told the expected date of delivery as 25 May 2020. The appellant/complainant went to the Dr. Amrita Rai on 25th May 2020 and she was admitted in the hospital and she was told that the childbirth would take place through cesarean. The husband of the complainant has given his consent for cesarean operation. ₹ 4000 has been deposited with the hospital. She gave birth a child on 25th May 2020 and she was told by Dr Amrita Rai that because harm has been caused to the uterus, therefore, Don't think about the second issue .She was discharged on 31 May 2020 and she was told that the drain pipe will be removed after five days. She again visited Dr Amrita Rai on 05 June 2020 with the complain of fever and stomachache. She was again admitted by Dr Amrita Rai in the hospital and she was medicated for three days but did not get any relief. Ultrasound was performed but the respondent/opposite party did not give her the report of the ultrasound. Thereafter complainant has been referred to Savitri Hospital, Gorakhpur by Dr. Amrita Rai. The husband of the complainant to her to the Savitri Hospital, Gorakhpur where she was examined by Dr MujeedAsraf through sonography and other tests. It has been found a case of "Gossypiboma" . The concerned Dr told that there is some foreign article left in the stomach due to negligence of the previous Dr during operation and it should be removed by an operation.
On 09 June 2020 she was operated by Dr. Rajive Shahi and a cotton pad of dimensions 6 inch long, 3 inch filed and 1 inch thick from the stomach which has been left during the first operation. She was discharged on 19 June 2020. She spent ₹ 199,752/Adhi Gowda for which includes all the expenses and go for. In addition to it ₹ 1 lakh has also been spent on folding lodging and caretaker et cetera. She filed a complaint case before the learned District Commission and demanded ₹ 1,539,752/in different heads but she was only awarded ₹ 4 lakhs at all. It is necessary to enhance the compensation because she suffered a lot .Therefore it is most humbly prayed that the Hon'ble State Commission may please to enhance the compensation from 4 lakhs to 15,39,752/-.
We have seen the judgement of the learned District commission dtd 15.12.2021. The learned District Consumer Commission has held that the opposite party has shown highest degree of carelessness during the operation and it is clear case of deficiency in service. Thereafter the learned District Consumer Commission has awarded ₹ 4 lakhs only though the complainant has prayed for ₹ 1,539,752/.
Now first of all we have to see that what is "Gossypiboma".
A mass formed around a cotton matrix left within the body is termed gossypiboma or textiloma. It is a rare complication of surgery most commonly seen after abdominal surgery. The time of presentation may range from early post-operative period to several decades later. We herein report on a case of gossypiboma. A 42-year old woman admitted to our hospital with abdominal mass. She had undergone a caesarean operation 2 years previously. The mass in the right quadrant was suspected by abdominal ultrasound and magnetic resonance imaging. The mass was removed by laparoscopy excision and the final diagnosis was gossypiboma.(V Bilali, S Bilali, A Mitrushi, R Pirushi, H Nina, E Ktona) Gossypiboma is a sponge or a swab retained involuntarily within the body during a surgical procedure. The incidence of retained surgical items is difficult to estimate due to under-reporting of cases due to medico legal implications. The reported incidence varies from 1 per 3000 to 5000 procedures.1 The wide variation in the incidence depends on the type of procedure, operation theatre personnel, experience of the surgeon, frequency of reporting of adverse incidents and hospital policies. The diagnosis is challenging because of variation in clinical and imaging presentation depending on time elapsed after surgery. Ultrasonography (USG), computerized tomography (CT) and magnetic resonance imaging are usually used as important diagnostic tools. The incidence of this catastrophic complication can be significantly reduced by strictly adhering to World health organization (WHO) surgical safety checklist. 2 Awareness among surgeons and radiologists can lead to early diagnosis and intervention, preventing further complications.
CASE REPORT A 23 years old P1L1 female with history of gestational hypertension presented on day 18 post Lower segment cesarean section (LSCS) with complaints of fever and generalized pain abdomen for 10 days. She had delivered a healthy 2.7 kg, male baby, at 36 weeks period of gestation via emergency LSCS in view of premature rupture of membranes (PROM) with gestational hypertension, 18 days back. One blood transfusion was done post LSCS. Patient was kept at that hospital for 8 days post LSCS and was discharged thereafter with no complaints. The day after discharge, she developed fever with chills and rigor followed by pain abdomen and abdominal distension for which outpatient management was done. Thereafter, patient went to another hospital for same, she was admitted and was managed conservatively. As the symptoms were not subsiding, she was referred to our hospital for further management. On examination- patient had high grade fever, with moderate degree of anemia with pedal edema. Abdomen was distended, generalized tenderness was present and the uterus could not be palpated. On pelvic examination, the cervical os was closed, size of the uterus could not be appreciated due to tenderness and lochia was healthy. On investigation hemoglobin was 8.9 gm% with normal leucocyte count and platelet count- 6,65,000. Ultrasonography showed peritonitis with large multiple loculated collections in the perihepatic, perisplenic space, paracolic gutter and the pelvis; with the largest collection measuring approximately 500 cc on the left side for which a pigtail catheter was inserted and the pus was drained, by the sonologist.
DISCUSSION A retained surgical sponge or gossypiboma is an underreported complication occurring most commonly after abdominal surgeries. The clinical appearance of gossypiboma can vary from being asymptomatic to vagueand varied symptoms like fever, abdominal pain, distension, nausea, vomiting, discharge from stitch site, weight loss, palpable mass. Retained surgical items can cause two different types of tissue reaction; first is exudative reaction which presents early in the postoperative period, and the second is aseptic fibrous reaction, which is slow and can remain asymptomatic for years.3 Stawicki et al showed that the most common clinical and diagnostic findings were focal pain, fluid or abscess collection or mass, and the most common pathological findings were exudative reaction, fibrosis, purulence, or abscess.4 CT scan is the first-choice diagnostic imaging technique for excluding gossypibomas because of its higher sensitivity, which shows typical spongiform pattern or heterogeneous central areas due to gas, calcification, and radiopaque markers.5,6 Ultrasound can also be used as a diagnostic tool which shows a poorly defined echogenic area with intense posterior acoustic shadowing.7 Prevention is always better than cure and that too in a scenario where surgical removal is the cure. WHO surgical safety checklist should be used to reduce reliance on memory. Counting mops and instruments before operation, just before closing abdomen and after the operation should be made a routine. The avoidance of conditions leading to human error like, fear, anxiety, anger, time pressure, interruptions; avoidance of nursing staff change in between the operation decrease such mishaps. In case of necessity of nursing staff change in between the surgery due to unavoidable circumstances, proper handover about the counts should be given. Computer-assisted system can be used for counting sponges using barcodes, which can detect significantly more counting discrepancies compared to traditional counting protocols and can further decrease the incidence of such events.
CONCLUSION WHO surgical safety checklist should be strictly adhered to. In case of discrepancy in count, appropriate action should be taken immediately to decrease morbidity of the patient. In case, patient presents with post-operative complications like fever with abdominal pain or discharge from wound, a high index of suspicion for retained sponge should be considered.
A Case Study :
A 27-year-old lady presented with discomfort in periumbilical area since one month ago. The only positive point in her previous history was a cesarean section five years back. Vital signs were normal. On abdominal examination, a round mobile mass was palpable. All routine lab data were normal. Abdominal X-ray was in favor of retained sponge (figure 1). CT scan confirmed the diagnosis (figure 2). Exploratory laparotomy revealed an encapsulated sponge surrounded by omentum, which was removed (figure 3, 4). Postoperative course was uneventful.
Abdominal CT scan showing a round well-defined soft-tissue mass containing an internal high-density area in the mid-abdomen.
Mini-laparotomy revealed gossypiboma (grasped by the clamp).
Surgical specimen (gossypiboma).
The possibility of a RFB should be in the differential diagnosis of any postoperative patient who presents with pain, infection, or palpable mass. The first diagnostic modality to rule out a RFB should be a CT scan and often it will be the only test needed. The CT findings of a sponge usually describe a rounded mass with a dense central part and an enhancing wall. Other features of retained sponges or towels include a whorl-like appearance with trapped air bubbles and cystic masses with infolded densities. MRI features can be confusing because the radiopaque marker is not magnetic or paramagnetic so is not visible.
Clinicians usually think that the diagnosis of a RFB on an intraoperative radiograph is easy and obvious, but often this is not the case. Intraoperative radiographs can be of poor quality, especially in obese patients. Correctly identifying a sponge on a radiograph can be difficult. The surgical markers may become twisted or folded and present an unusual image. For instance, in a report of 13 patients with a retained sponge, the radiopaque marker inside the sponge was seen in only 9 radiographs and even then was not immediately recognized for what it was. Markers have been misinterpreted as calcifications, intestinal contrast material, wires, or surgical clips.
The usual treatment of a RFB is removal. Reopening the previous operative site is one possibility, but endoscopic or laparoscopic approaches may be attempted.
One possible complication during surgical removal of RFB is perforation of adherent bowels, which may be missed. We had another case with retained two surgical towels during emergency cesarean section. Her surgeon removed the towels through a small incision. However, she was admitted in our service three days later with clinical picture of generalized peritonitis. Explorative laparotomy revealed a missed small bowel perforation.
In some instances the attempt to remove the retained foreign body may cause more harm than the item itself, although in these circumstances the foreign body is usually a needle or small part of a surgical item. In these cases, removal is not recommended. Rarely is this an appropriate course of action for a retained sponge, which should always be removed.
Recently, New England Journal of Medicine published an article about risk factors of RFBs. Of the 8 risk factors the authors identified (emergency operation, unexpected change in operation, more than one surgical team involved, change in nursing staff during procedure, body mass index (BMI), volume of blood loss, female sex, and surgical counts) only 3 were found to be statistically significant by multivariate logistic regression. The 3 significant risk factors were emergency surgery, unplanned change in the operation, and BMI. The counting of sponges and instruments was not a significant predictor in the multivariate model. Although all 3 factors were significant, the 9-fold increase in risk associated with emergency surgery was impressive. In addition, in 88% of the cases where there was a RFB and counts were performed, the counts were falsely called correct. The authors recommended "radiographic screening" at the end of high risk cases as a possible adjunct to improve detection of RFB. Surgeons should place radiologically detectable sponges and towels in the surgical site, carefully consider the use of small sponges in large cavities, and perform a methodical wound examination each and every time before they begin to close the wound.
New technologies are being developed that will hopefully decrease the incidence of RFB. An electronic article surveillance system has been examined which uses a tagged surgical sponge that can be identified electronically. Bar codes can be applied to all sponges, and with the use of a bar code scanner the sponges can be counted on the back table. The use of radiofrequency identification systems holds much hope for application in the area of detection of sponges.
Now let us see the oath taken be a doctor before entering the nobel profession of the Medical World. As per guidelines of MCI, Every member should get it framed in his or her office it should never be violated in its letter and spirit.
"I solemnly pledge myself to consecrate my life to service of humanity.
Even under threat, I will not use my medical knowledge contrary to the laws of Humanity.
I will maintain the utmost respect for human life from the time of conception.
I will not permit considerations of religion, nationality, race, party politics or social standing to intervene between my duty and my patient.
I will practice my profession with conscience and dignity.
The health of my patient will be my first consideration.
I will respect the secrets which are confined in me.
I will give to my teachers the respect and gratitude which is their due.
I will maintain by all means in my power, the honour and noble traditions of medical profession.
I will treat my colleagues with all respect and dignity.
I shall abide by the code of medical ethics as enunciated in the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002.
I make these promises solemnly, freely and upon my honour."
The complexity of the human body and the uncertainty involved in the medical procedure are of such great magnitude that it is impossible for a Doctor to guarantee a successful result; and the only assurance that he can give, or can be understood to have given by implication is that he is possessed of requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him, he would be exercising his skills with reasonable competence. An ordinary physician or surgeon is not expected to be either a clodhopper or feckless practitioner of profession, as much as, he is not expected to be a paragon, combining qualities of polymath or prophet as in the realm of diagnosis and treatment, there is ample scope for genuine difference of opinion; and a Doctor cannot be treated as negligent merely because his conclusion differs from that of other persons in the profession, or because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care. Furthermore, a golden principle of law has been laid down by the Hon'ble Apex Court in Jacob Mathew Vs. State of Punjab, (AIR 2005 SC 3180) that 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 loquitor is not an 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 loquitor. Yet, another golden principle of law has been laid down by the Hon'ble Apex Court in Indian Medical Association Vs. V.P. Santha's III (1995) CPJ 1 (SC) at para 37 that "it is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all complaints about deficiency rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out patient card containing the warning or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. Furthermore, it has been observed in Malay Kumar Ganguli's case (AIR 2010 SC 1162) that" charge of professional negligence on a medical person is a serious one as it affects his professional statusand reputation and as such, the burden of proof would be more onerous. A doctor cannot be held negligent only because something has gone wrong. He also cannot be held liable for mischance or misadventure or for an error in judgment in making a choice when two options are available. The mistake in diagnosis is not necessarily a negligent diagnosis." In the instant matter, thus a simple test, in the light of aforesaid observations, needs to be conducted in order to ascertain whether the Doctor is guilty of any tortious act of negligence/battery amounting to deficiency in conducting a surgery in the delivery of child and not properly attending the patient, the complainant and consequently, liable to pay damages for leaving cotton mass in the abdomen / stomach due to failure in surgery and deteriorating condition of the patient.
Now, it is required to be seen whether an expert report is necessary in each and every case relating to medical negligence or not ? It has been observed by the Hon'ble Apex Court in Indian Medical Association Vs. V.P. SanthaIII(1995) CPJ 1 (SC) at para 37 that "it is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all complaints about deficiency rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out patient card containing the warning or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. Furthermore, in B. Krishna Rao Vs. Nikhil Super Speciality Hospital 2010 (V) SCC513 at para 40 the Hon'ble Apex Court was pleased to hold that it is not necessary to have opinion of the expert in each and every case of medical negligence. The Hon'ble Apex Court was pleased to further hold in Nizam Institute of Medical Sciences Vs. Prashant S. Dhananka and others 2009 (VI) SCC 1 that "in a case of medical negligence, once initial burden has been discharged by the complainant by making of a case of negligence on the part of the hospital or the doctor concerned, the owner then shifts on the hospital or to the attending doctors and it is for the hospital to satisfy the court that there was no lack of care or diligence".
A doctrine or rule of evidence in tort law that permits an inference or presumption that a defendant was negligent in an accident injuring the plaintiff on the basis of circumstantial evidence if the accident was of a kind that does not ordinarily occur in the absence of negligencea plaintiff who establishes the elements of res ipsa loquitur can withstand a motion for summary judgment and reach the jury without direct proof of negligence-- Cox v. May Dept. Store Co., 903 P.2d 1119 (1995).
In Byrne vs Boadle, this maxim was used for the first time where the complainant was injured by a barrel that dropped from the window of the defendant. In the abovementioned case, Pollock, C. B., said "here are many incidents from which no presumption of negligence can arise, but this is not true in every case. It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out and I think that such a case will, beyond all doubt, afford prima facie proof of negligence."
This doctrine intends to help direct the court proceedings to a conclusion, especially if it is established through the implication of this doctrine's rule that the injury caused to the claimant would not have occurred or taken place if the defendant wasn't negligent.This also gives enough cause and evidence to hold the defendant liable for his negligent actions.
Essentials of Res Ipsa Loquitur Maxim The injury caused to the plaintiff shall be a result of an act of negligence.
There is a lack of evidence, or the evidence presented before the court is insufficient to establish the possibilities of the fault of the plaintiff or third party.
The defendant owes a duty of care towards the plaintiff, which he has breached.
There is a significant degree of injury caused to the plaintiff.
Applicability of Doctrine of Res Ipsa Loquitur The maxim of res ipsa loquitur came into force to benefit the plaintiff as he can use circumstantial evidence to establish negligence.
Consequently, it shifts the burden of proof on the defendant, logic being, where there is an event of unexplained cause, usually, the one that does not occur without the defendant's negligence in controlling the action which has caused the injury to the claimant or destroyed his goods.
In this scenario, the court shall presume negligence on the part of the defendant in such a case unless it includes an appropriate explanation compatible with his taking reasonable care.
In Achutrao Haribhau Khodwa and Others vs State of Maharashtra and Others, it was considered that the maxim should not be applied in the case of general incidences of neglect and shall only be reflected when there is a significant degree of injury caused.
Section 106 of the Indian Evidence Act Section 106 of the Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Res ipsa loquitur is a Latin phrase that means "the thing speaks for itself." In personal injury law, the concept of res ipsa loquitur (or just "res ipsa" for short) operates as an evidentiary rule that allows plaintiffs to establish a rebuttable presumption of negligence on the part of the defendant through the use of circumstantial evidence.
This means that while plaintiffs typically have to prove that the defendant acted with a negligent state of mind, through res ipsa loquitur, if the plaintiff puts forth certain circumstantial facts, it becomes the defendant's burden to prove he or she was not negligent.
Res Ipsa Loquitur and Evidence Law Accidents happen all the time, and the mere fact that an accident has occurred doesn't necessarily mean that someone's negligence caused it. In order to prove negligence in a personal injury lawsuit, a plaintiff must present evidence to demonstrate that the defendant's negligence resulted in the plaintiff's injury. Sometimes, direct evidence of the defendant's negligence doesn't exist, but plaintiffs can still use circumstantial evidence in order to establish negligence.
Circumstantial evidence consists of facts that point to negligence as a logical conclusion rather than demonstrating it outright. This allows judges and juries to infer negligence based on the totality of the circumstances and the shared knowledge that arises out of human experience. Res ipsa is one type of circumstantial evidence that allows a reasonable fact finder to determine that the defendant's negligence caused an unusual event that subsequently caused injury to the plaintiff.
This doctrine arose out of a case where the plaintiff suffered injuries from a falling barrel of flour while walking by a warehouse. At the trial, the plaintiff's attorney argued that the facts spoke for themselves and demonstrated the warehouse's negligence since no other explanation could account for the cause of the plaintiff's injuries.
As it has developed since then, res ipsa allows judges and juries to apply common sense to a situation in order to determine whether or not the defendant acted negligently.
Since the laws of personal injury and evidence are determined at the state level, the law regarding res ipsa loquitur varies slightly between states. That said, a general consensus has emerged, and most states follow one basic formulation of res ipsa.
Under this model for res ipsa, there are three requirements that the plaintiff must meet before a jury can infer that the defendant's negligence caused the harm in question:
The event doesn't normally occur unless someone has acted negligently;
The evidence rules out the possibility that the actions of the plaintiff or a third party caused the injury; and The type of negligence in question falls with the scope of the defendant's duty to the plaintiff.
As mentioned above, not all accidents occur because of someone else's negligence. Some accidents, on the other hand, almost never occur unless someone has acted negligently.
Going back to the old case of the falling flour-barrel, it's a piece of shared human knowledge that things don't generally fall out of warehouse windows unless someone hasn't taken care to block the window or hasn't ensured that items on the warehouse floor are properly stored. When something does fall out of a warehouse window, the law will assume that it happened because someone was negligent.
Top of Form Bottom of Form The second component of a res ipsa case hinges on whether the defendant carries sole responsibility for the injury. If the plaintiff can't prove by a preponderance of the evidence that the defendant's negligence cause the injury, then they will not be able to recover under res ipsa.
States sometimes examine whether the defendant had exclusive control over the specific instrumentality that caused the accident in order to determine if the defendant's negligence caused the injury. For example, if a surgeon leaves a sponge inside the body of a patient, a jury can infer that the surgeon's negligence caused the injury since he had exclusive control over the sponges during the operation.
In addition to the first two elements, the defendant must also owe a duty of care to protect the plaintiff from the type of injury at issue in the suit. If the defendant does not have such a duty, or if the type of injury doesn't fall within the scope of that duty, then there is no liability.
For example, in many states, landowners don't owe trespassers any duty to protect them against certain types of dangers on their property. Thus, even if a trespasser suffers an injury that was caused by the defendant's action or inaction and that wouldn't normally occur in the absence of negligence, res ipsa loquitur won't establish negligence since the landowner never had any responsibility to prevent injury to the trespasser in the first place.
Res ipsa only allows plaintiffs to establish the inference of the defendant's negligence, not to prove the negligence completely. Defendants can still rebut the presumption of negligence that res ipsa creates by refuting one of the elements listed above.
For example, the defendant could prove by a preponderance of the evidence that the injury could occur even if reasonable care took place to prevent it. An earthquake could shake an item loose and it could fall out of the warehouse window, for instance.
A defendant could also demonstrate that the plaintiff's own negligence contributed to the injury. To go back to the flour-barrel example, if the defendant shows that the plaintiff was standing in an area marked as dangerous it could rebut the presumption of negligence created by res ipsa.
Finally, the defendant could establish that he did not owe the plaintiff a duty of care under the law, or that the injury did not fall within the scope of the duty owed. For example, if the law only imposes a limited duty on the defendant not to behave recklessly, then res ipsa will not help the plaintiff by creating an inference of negligence since a negligent action would not violate the duty owed to the plaintiff.
According to the Blacks Law Dictionary the maxim is defined as the doctrine providing that, in some circumstances, the mere fact of accidents occurrence raises an inference of negligence so as to establish a prima facie (at first sight) case. It is a symbol for that rule that the fact of the occurrence of an injury taken with the surrounding circumstances may permit an inference or recipes omission of negligence, or make out a plaintiff's prima facie case and present a question of fact for defendant to meet with and explanation. It is merely a short way of saying that the circumstances attendant on the accident are of such a nature to justify a jury in light of common sense and past experience in inferring that the accident was probably the result of the defendant's negligence, in the absence of explanation or other evidence which the jury believes.
Its use in clinical negligence gained some traction before Bolam and Bolitho. Mahon v Osborne [1939] 1 All ER 535, is an early example of the application of res ipsa loquitur in a case where a surgical swab had been left inside a patient's body.
In Clarke v Worboys (1952) Times, 18 March, CA, a patient noticed burns on her buttock shortly after surgical excision of a breast tumour. The surgery involved cauterisation. The Court of Appeal held that this was a case where res ipsaloquitur applied. The outcome was not one that would ordinarily occur in the absence of negligence, and the surgical team were unable to explain how the injury was caused.
In Cassidy v Ministry of Health [1951] 2 KB 343, Denning LJ succinctly summarised the maxim's application to clinical negligence.
cases: "I went into hospital to be cured of two stiff fingers. I have come out with four stiff fingers and my hand is useless. That should not happen if due care had been used. Explain it if you can."
Ng Chun Pui Vs Lee Chuen Tat, the first defendant was driving a coach owned by the second defendant westwards in the outer lane of dual carriageway in Hong Kong. Suddenly the course across the central reservation and collided with a public bus travelling in the inner lane of the other carriageway, killing one passenger in the bus and injuring the driver and three others on the bus. The plaintiff could not prove that the defendants were negligent and had caused the accident. They however proceeded on the basis of Res Ipsa Loquitur and shifted the onus on the defendants to prove that they were not negligent. However, they failed to do so. And the judicial committee of the Privy Council held the defendants liable for the plaintiffs injuries. { MarkLuney and Ken Opliphant , Tort Law Text And Materials (Oxford University Press, New York, 2000) pp 173-175 } In A.S. Mittal &Anr Vs State Of UP &Ors , AIR 1979 SC 1570 , the defendants had organised an eye camp at Khurja along with the Lions Club. 88 low risk cataract operations were undertaken during the period of the camp. It was however, disastrous as many of those who had been operated upon lost their eyesight due to post medical treatment. Proceedings against the government initiated for negligence of the doctors. Damages worth ₹ 12,500/- were paid as interim belief to each of the aggrieved. The decision was on the basis of Res Ipsa Loquitur as the injury would not have occurred had the doctors not been negligent in not having followed up with post-operation treatment. Res Ipsa Loquitur can be applied in matters where are the procedures have not been followed and is not just limited to the commission of an act.
We can define 'Medical negligence' as the improper or unskilled treatment of a patient by a medical practitioner. This includes negligence in taking care from a nurse, physician, surgeon, pharmacist, or any other medical practitioner. Medical negligence leads to 'Medical malpractices' where the victims suffer some sort of injury from the treatment given by a doctor or any other medical practitioner or health care professional.
Medical negligence can occur in different ways. Generally, it occurs when a medical professional deviates from the standard of care that is required.
So, we can say that any kind of deviation from the accepted standards of medication and care is considered to be medical negligence and if it causes injury to a patient then the doctor who operated on him, other staff and/or hospital may be held liable for this.
Some of the common categories of medical negligence are as follows:
Wrong diagnosis - When someone goes to a hospital, clinic or medical room, etc. the first step after admittance is the diagnosis. Diagnosing symptoms correctly is critical and important to provide medical care to any patient. However, if a patient is not treated properly due to any mistake in diagnosis, the doctor can be made liable for any further injury or damages caused as a result of the wrong diagnosis.
Delay in diagnosis - A delayed diagnosis is treated as medical negligence if another doctor would have reasonably diagnosed the same condition in a timely fashion. A delay in diagnosis can cause undue injury to the patient if the illness or injury is left to worsen with time rather than being treated. Obviously, any delay in the identification and treatment of an injury can reduce the chance of recovery for the patient.
Error in surgery - Surgical operations require an enormous level of skill and it should be done with due care and caution because even the slightest mistakes can have profound effects on the patient. The wrong-site surgery, lacerations of any internal organ, severe blood loss, or a foreign object being left in the body of the patients, all this comes under Surgical error.
Unnecessary surgery - Unnecessary surgery is usually associated with the misdiagnosis of patient symptoms or a medical decision without proper consideration of other options or risks. Alternatively, sometimes surgery is chosen over conventional treatments for their expediency and ease compared to other alternatives.
Errors in the administration of anesthesia - Anesthesia is a risky part of any major medical operation and requires a specialist (anesthesiologist) to administer and monitor its effect on the patient. Prior to any medical procedure requiring anesthesia, the anesthesiologist has to review the patient's condition, history, medications, etc. to determine the most suitable of all the medicine to use. Anesthesia malpractice can happen even during the pre-operation medical review or during the procedure itself.
Childbirth and labor malpractice - Childbirth is a difficult event for a woman and it becomes worse if not handled properly by the doctors and nurses. There are many instances of medical negligence during childbirth including the mishandling of a difficult birth, complications with induced labor, misdiagnosis of a newborn medical condition, etc. Long-Term negligent treatment - Medical negligence can also occur in subtle ways over the course of a long treatment period. Usually, the negligence can take the shape of a failure to follow up with treatment, or a doctor's failure to monitor the effects of the treatment properly.
A standard of care specifies the appropriate treatment and medication procedure as per the requirements that should be taken into account by a doctor while providing the treatment to his patients. The care should not be of the highest degree nor the lowest.Here, the degree means the level of care an ordinary health care professional, with the same training and experience, would render in similar circumstances in the same community. This is the critical question in medical malpractice cases and if the answer is "no," and you suffered injury as a result of the poor treatment, you may file a suit for medical malpractice.
In the case of Dr. Laxman Balkrishna Joshi Vs. Dr. TrimbakBapu Godbole and Anr.[ 1969 AIR 128], the Supreme Court held that a doctor has certain aforesaid duties and a breach of any of those duties can make him liable for medical negligence. A doctor is required to exercise a reasonable degree of care that is set for this profession.
Dr. Kunal Saha vs Dr. Sukumar Mukherjee on 21 October, 2011 ( NC) original petition number 240 OF 1999 is one of the most important case regarding medical negligence. The brief facts of the case are-
Toxic Epidermal Necrolysis (TEN) is a rare and deadly disease. It is an extoliative dermatological disorder of unknown cause. A patient with TEN loses epidermis in sheet-like fashion leaving extensive areas or denuded dermis that must be treated like a larze, superficial, partial-thickness burn wound. The incidence of TEN has been reported at 1 to 1.3 per million per year. The female-male ratio is 3:2. TEN accounts for nearly 1% of drug reactions that require hospitalization. TEN has a mortality rate of 25 to 70%.
Smt. Anuradha Saha (in short Anuradha), aged about 36 years wife of Dr. Kunal Saha (complainant) became the unfortunate victim of TEN when she alongwith the complainant was in India for a holiday during April-May 1998. She and the complainant although of Indian original were settled in the United States of America. The complainant is a doctor by profession and was engaged in research on HIV / AIDS for the past fifteen years. Anuradha after acquiring her Graduation and Masters Degree was pursuing a Ph.D. programme in a university of U.S.A. She was a Child Psychologist by profession. Anuradha showed certain symptoms of rashes over her body and received treatment at the hands of Opposite Parties and some other doctors as outdoor patient uptil 10.05.1998 and she was admitted in Advanced Medicare and Research Institute Limited, Calcutta (for short, AMRI), on 11.05.1998, where she was treated by the above-named Opposite Parties and other doctors uptil 16.05.1998. As there was no improvement in her condition, she was shifted to Breach Candy Hospital, Mumbai, on 17.05.1998 by an air ambulance. She was treated in Breach Candy Hospital from 17.05.1998 evening till she breathed her last on 28.05.1998.
Our Complainant as husband of Anuradha felt that the doctors who treated Anuradha and the hospitals where she was treated were grossly negligent in her treatment and her death was occasioned due to gross negligence of the treating doctors and hospitals. Complainant, accordingly, got issued a legal notice to as many as 26 persons i.e. various doctors who treated Anuradha between end of April to the date of her death alleging negligence and deficiency in service on their part and claiming a total compensation exceeding Rs.55 crores from them. Complainant, thereafter filed the present complaint on 09.03.1999 before this Commission claiming a total compensation of Rs. Rs.77,07,45,000/- ( Seventy Seven Crores Seven Lakhs Fourty Five Thousand only). Later he also filed another complaint no. 179 of 2000 in this Commission against Breach Candy Hospital, its doctors and functionaries claiming a further compensation of Rs.25.30 crore ( though the said complaint was later on withdrawn), thereby making claim of compensation exceeding Rs.102 crores, perhaps the highest ever claimed by any complainant for medical negligence before any consumer fora established under the provisions of Consumer Protection Act, 1986 ( in short, the Act). These are some of the facts which make the present case extra ordinary.
The present complaint was filed by the complainant against the above-named opposite parties, namely, Dr. Sukumar Mukherjee, Dr. B. Haldar (Baidyanath Halder), Advanced Medicare and Research Institute Limited ( in short the AMRI Hospital ) and Dr. Balram Prasad and Dr.Abani Roy Chowdhury (physician) and Dr.KaushikNandy (plastic surgeon), the Directors of the AMRI Hospital and others claiming a total compensation of Rs. Rs.77,07,45,000/- under different heads alleging various acts of commission and omission on the part of the doctors and hospital amounting to negligence and deficiency in service. Complainant through his brother-in-law Malay Kumar Ganguly also filed criminal complaint against some of the doctors and the hospital under section 304A IPC.
The complaint was resisted by the doctors and the hospital on a variety of grounds thereby denying any medical negligence or deficiency in service on their part. Parties led voluminous documentary and oral evidence and testimonies of some of the witness were even recorded through video conferencing through a Local Commissioner. After a protracted trial and hearing and on consideration of the evidence and material so produced on record and taking note of the legal position governing the question of medical negligence, this Commission ( by a three Member Bench presided over by the then President) dismissed the complaint by an order dated 01.06.2006 holding as under:
In the result, we reiterate that Doctors or Surgeons do not undertake that they will positively cure a patient. There may be occasions beyond the control of the medical practitioner to cure the patients. From the record, it would be difficult to arrive at the conclusion that the injection Depo-Medrol prescribed by Dr. Mukherjee was of such excessive dose that it would amount to deficiency in service by him which was his clinical assessment.
Thereafter, with regard to the alleged deficiency in the treatment given to Mrs. Anuradha by Opposite Party Doctors 2, 3, 5 and 6, there is no substance. The contention against the hospital that it was not having Burns-Ward, and therefore, the deceased suffered is also without substance. Hence, this complaint is dismissed. There shall be no order as to costs.
Aggrieved by the dismissal of his complaint, the complainant filed Civil Appeal (No. 1727 of 2007) in the Honble Supreme Court. It would appear that even before the said appeal was filed before the Honble Supreme Court, the Supreme Court was seized of the matter in Criminal Appeal Nos. 1191-94 of 2005 filed by Malay Kumar Ganguly, the complainant in the criminal complaint, against the Orders passed by the Calcutta High Court. Since the Criminal Appeals and the Civil Appeal filed by the complainant in the present complaint raised the same questions of fact and law, the Honble Supreme Court heard all the appeals together and decided the same by means of a detailed judgment dated 07.8.2009. By the said order, the Apex Court dismissed the Criminal Appeals filed by Shri Malay Kumar Ganguly but allowed the Civil Appeal No. 1727 of 2007 filed by the complainant and set aside the order dated 01.6.2006 passed by this Commission dismissing the complaint and remanded the matter to this Commission for the limited purpose of determining the adequate compensation, which the complainant is entitled to receive from the subsisting opposite parties by observing as under:
So far as the judgment of the Commission is concerned, it was clearly wrong in opining that there was no negligence on the part of the Hospital or the doctors. We, are, however, of the opinion, keeping in view the fact that Dr.KaushikNandy has done whatever was possible to be done and his line of treatment meets with the treatment protocol of one of the experts viz.. Prof. Jean Claude Roujeau although there may be otherwise difference of opinion, that he cannot be held to be guilty of negligence.
We remit the case back to the Commission only for the purpose of determination of the quantum of compensation.
We, keeping in view the stand taken and conduct of AMRI and Dr. Mukherjee, direct that costs of Rs.5,00,000 and Rs.1,00,000 would be payable by AMRI and Dr. Mukherjee respectively.
We further direct that if any foreign experts are to be examined it shall be done only through video conferencing and at the cost of the respondents.
Summary In view of the foregoing discussion, we conclude as under:
The facts of this case viz., residence of the complainant and Anuradha (deceased) in USA and they working for gain in that country; Anuradha having been a victim of a rare and deadly disease Toxic Epidermal Necrolysis (TEN) when she was in India during April-May 1998 and could not be cured of the said disease despite her treatment at two superspeciality medical centres of Kolkata and Mumbai and the huge claim of compensation exceeding Rs.77 crores made by the complainant for the medical negligence in the treatment of Anuradha makes the present case somewhat extraordinary.
The findings given and observations made by the Supreme Court in its judgment dated 07.08.2009 are absolutely binding on this Commission not only as ratio decidendi but also as as obiter dicta also, the judgment having been rendered by the Supreme Court in appeal against the earlier order passed by a three Member Bench of this Commission and, therefore, no attempt can be allowed to read down / dilute the findings and observations made by the Supreme Court because the Supreme Court has remitted the complaint to this Commission only for the purpose of determination of the quantum of compensation after recording the finding of medical negligence against the opposite parties and others.
The task entrusted to the Commission may appear to be simple but the facts of the present case and the voluminous evidence led on behalf of the complainant has made it somewhat arduous. Still difficult was the task of apprortionment of the liability to pay the awarded amount by the different opposite parties and perhaps it was for this reason that the Supreme Court has remitted the matter to this Commission.
Multiplier method provided under the Motor Vehicles Act for calculating the compensation is the only proper and scientific method for determination of compensation even in the cases where death of the patient has been occasioned due to medical negligence / deficiency in service in the treatment of the patient, as there is no difference in legal theory between a patient dying through medical negligence and the victim dying in industrial or motor accident. The award of lumpsum compensation in cases of medical negligence has a great element of arbitrariness and subjectivity.
The foreign residence of the complainant or the patient and the income of the deceased patient in a foreign country are relevant factors but the compensation awarded by Indian Fora cannot be at par which are ordinarily granted by foreign courts in such cases. Socio economic conditions prevalent in this country and that of the opposite parties / defendants are relevant and must be taken into consideration so as to modulate the relief. A complainant cannot be allowed to get undue enrichment by making a fortune out of a misfortune. The theoretical opinion / assessment made by a Foreign Expert as to the future income of a person and situation prevalent in that country cannot form a sound basis for determination of future income of such person and the Commission has to work out the income of the deceased having regard to her last income and future prospects in terms of the criteria laid down by the Supreme Court.
There exists no straight jacket formula for apportionment of the awarded compensation amongst various doctors and hospitals when there are so many actors who are responsible for negligence and the apportionment has to be made by evolving a criteria / formula which is just going by the nature and extent of medical negligence and deficiency in service established on the part of different doctors and hospitals.
On a consideration of the entirety of the facts and circumstances, evidence and material brought on record, we hold that overall compensation on account of pecuniary and non pecuniary damages works out to Rs.1,72,87,500/- in the present case, out of which we must deduct 10% amount on account of the contributory negligence / interference of the complainant in the treatment of Anuradha. That will make the net payable amount of compensation to Rs.1,55,58,750/- (rounded of to Rs.1,55,60,000/-). From this amount, we must further deduct a sum of Rs.25,93,000/- which was payable by Dr. Abani Roy Chowdhury (deceased) or his Legal Representative as the complainant has forgone the claim against them.
In view of the peculiar facts and circumstances of the case and as a special case, we have awarded a sum of Rs. 5,00,000/- as cost of litigation in the present proceedings.
The above amount shall be paid by opposite parties no. 1 to 4 to the complainant in the following manner:
(i). Dr. Sukumar Mukherjee-opposite party no.1 shall pay a sum of Rs.40,40,000/- (Rupees Forty Lakh Forty Thousand only) i.e. [Rs.38,90,000/- towards compensation and Rs.1,50,000/- as cost of litigation] .
(ii) Dr. B. Haldar (Baidyanth Halder)-opposite party no.2 shall pay a sum of Rs.26,93,000/- (Rupees Twenty Six Lakh Ninety Three Thousand only) i.e. [Rs.25,93,000/- towards compensation and Rs.1,00,000/- as cost of litigation]
(iii) AMRI hospital-opposite party no.3 shall pay a sum of Rs.40,40,000/- (Rupees Forty Lakh Forty Thousand only ) i.e. [Rs.38,90,000/- towards compensation and Rs.1,50,000/- as cost of litigation]
(iv) Dr. Balram Prasad-opposite party no.4 shall pay a sum of Rs.26,93,000/- (Rupees Twenty Six Lakh Ninety Three Thousand only) i.e. [Rs.25,93,000/- towards compensation and Rs.1,00,000/- as cost of litigation] The opposite parties are directed to pay the aforesaid amounts to the complainant within a period of eight weeks from the date of this order, failing which the amount shall carry interest @ 12% p.a. w.e.f. the date of default.
The opposite party no. 1 is the Dr cum hospital where the aggrieved person was admitted and operated. What are the basic needs of such a hospital dealing with Maternity Care.
Healthcare set-ups are constantly evolving and providing advanced services and medical care. You may be spoilt for choice, but to give you a general idea, we've listed out five essential facilities that you should look out for when choosing a maternity hospital or nursing home.
1. A neonatal intensive care unit (NICU) If your baby is premature, or unwell after she is born, she might need special medical care. To handle such situations, the hospital or nursing home of your choice should have a neonatal intensive care unit (NICU).The NICU should have special medical equipment such as ventilators, incubators, feeding tubes, phototherapy lights, respiratory monitors, cardiac monitors and so on.Babies in the neonatal intensive care unit need constant monitoring and 24-hour care from different healthcare professionals. There are also medical staff members whose role is to help you with specific concerns. They'll be valuable sources of information in the days or weeks your baby stays in the NICU.
Also, every NICU is not the same. Some hospitals are equipped to take care of the tiniest babies while others can only care for those 32 weeks and beyond and will need to transfer those more premature.
2. In-house blood bank, laboratory services and pharmacy Blood bank.
Having access to a blood bank is vital. If you bleed excessively after the birth, you may need a blood transfusion. Make sure well in advance that the hospital or nursing home has access to your blood type. Most hospitals only release blood from their blood bank if the equivalent amount is donated. It's a good idea to have some blood donors ready in case the need arises.
Laboratory services Having an accredited in-house lab can help with timely tests and reports. This can be convenient for both patients and doctors, especially when urgent diagnosis is needed.
Pharmacy A well-stocked pharmacy in the hospital premises will save you the bother of running around if you need any prescription medication. Most in-hospital pharmacies also stock up on toiletries and baby care items. This can be a great time-saver!
3. Good hospital hygiene and healthcare practices The quality of a hospital or nursing home can be gauged from the level of hygiene of the building, staff, equipment, rooms, corridors, waiting areas and bathrooms.
Strict adherence to hygiene and healthcare practices is vital for preventing the transmission of infections. The hospital environment must be safe for patients, doctors, healthcare workers and visitors.
So, always look out for these things when you take a tour of a nursing home or hospital. If possible, get feedback about the hospital wards, rooms, NICU, and operation theatres.
4. Dedicated round-the-clock ambulance service It's best to go with a hospital or nursing home that has its own ambulance service.
If there are complications when you're in labour, you may need to be transferred to a better-equipped hospital. Having an ambulance on call can help make the transfer quicker and seamless.
Some hospitals also have dedicated, specialised transport to handle critical care cases and premature baby transfers.
5. Emergency back-up power system As power cuts are quite common, ensure that your maternity hospital has a 100 per cent power back-up.It's not just lifts, lights, air-conditioning and fans that will not work if the power is out. Critical care equipment, incubators, and ventilators all need uninterrupted power supply. If these stop working, even a delay of a few seconds can be fatal.A power outage can also affect round-the-clock water supply, refrigeration, sterilisation technology, communications and access to electronic medical records and data, among other things.
Reputation and quality care are paramount, and some hospitals and clinics do a better job than others. It's a good idea to research and get feedback from friends and family. You could also speak to other parents and parents-to-be in our helpful community.
It was the duty of the hospital to provide all the basic facilities and emergency facilities in case of any untoward happenings. It is the duty of the Dr that she should stay all the time opposite the bed of the patient unless and until the operation is over and the patient has been allowed to go to ICU or Ward. In this case the hospital is also negligent because they want to make money and they have four gotten their oath which was taken before entering into the medical profession. All the above mentioned facilities should be there and if anyone lacks, it will come under the deficiency of service and negligence. It is not clear that whether in addition to a surgeon, there was any Cardiologist, Anaesthesist, and life-saving equipments. It is clear by the averments made that there was Anaesthesist managing the situation and Dr was not there.
We have seen the oath which has been prescribed for the doctors entering into the medical profession. They have to take oath to maintain respect for human life and to practice the profession with cautious and dignity and the health of their patient will their first consideration. Now in this case these three points of the oath has been violated because the concerned doctor did not pay full attention towards her patient and she left a bundle of cotton in the abdomen of the patient showing that she was totally negligent at the time of operation.
In the Complaint Case No.32 of 2013 Smt. Sabiha Hamid Versus Dr. M. Khan Hospital Stadium Road, Bareilly,&Ors, this commission has given its judgement dated 06.10.2021 and held the Dr negligent in a similar case of which one paragraph is quoted here:
"On 22.06.2011 the complainant was operated by the doctors of SGPGI MS and the bundle of cotton has been removed. The doctors informed her that the track by which the stool of the body passes have been infected badly as such the whole track cannot be used by the body naturally and the doctors will have to make another artificial track for the discharge of the stool by another operation. It was not possible for the complainant to get herself operated immediately. For the time being, by way of second operation the doctors of the SGPGI inserted another pipe in the body of the complainant which was connected with a bag. As such the complainant was forced to hang the bag with her body so that the stool of the body may be collected in the bag. The condition of the complainant remained SUCH till 6 January 2012, when the complainant was operated for the third time again and the doctors of the Institute installed a side track in the body of the complainant by which the stool of the body can pass."
This commission passed the following order in the above mentioned case:
ORDER The Complaint Case is allowed with cost. The opposite parties no.1 and 3 are jointly and severally liable to pay ₹ 50 lakhs as compensation with interest at the rate of 12% from 01.11.2010 till the date of actual payment. They are also jointly and severally liable to pay ₹3,90,107.28 to the complainant for various charges received by them during operation and also incurred by the complainant after discharge for her travelling, check up and medication. They are also jointly and severally liable to pay ₹84,000.00 for mental agony in addition to ₹ 1 lakh as cost of the proceedings. All these amount will carry interest at the rate of 12% from 01.11.2010 till the date of payment. This order shall be complied with within 30 days from the date of judgment otherwise the rate of interest will be 15% per annum. The opposite parties shall be indemnified to the extent they were insured by the opposite parties no.6 and 7. If the order is not complied with in 30 days, the complainant will be free to move an application for execution at the cost of the opposite parties no. 1 and 3."
From the above discussion it has been clear that the opposite party has shown negligence of the extreme level and she did not care about the post-operative care. She could not maintain the high dignity of a doctor and also could not maintain the words of the oath taken by her when she entered in this noble medical profession. Circumstances itself speak and in this case all the circumstances through the medical negligence caused by the opposite party during the operation and after the operation. When after the operation the patient came to her for checkup she must have known about the negligent shown by her and in spite of that she referred to another hospital.
We have seen all the circumstances, pleadings and documents on record this clearly shows that in appeal no 131 of 2022 the appellant/full party had knowledge of the complaint case and she had received a notice but did not appear before the learned District commission for submitting her written statement and the case was considered ex parte against her, which was justified in the circumstances and the judgement passed by the learned District Commission was justified. This appeal has no ground and liable to be dismissed with costs. As far as appeal no 213 of 2022 is concerned, it is very well clear that the respondent has shown negligent which has already supported by collaborative evidence documentary as well as oral. All the circumstances also the negligence of the respondent/opposite party. Post-operative care was totally lacking in the said hospital and the respondent could not control the post-operative precautions and complications. This is a clear-cut case of " Gossypiboma". As discussed and shown by various articles, images and case history, the respondent is liable for carelessness and negligence. The learned District commission because the held that it is extremely negligent on the part of the opposite party and in spite of of it the learned District commission awarded on ₹ 4 lakhs which is a drop in the ocean. Due to this carelessness the complainant could be collapsed because it might cause septicaemia resulting in death of the patient. So the courts should be cautious in awarding the composition when all the facts show the negligence just like an open and shut case. So considering all the circumstances of this case we are of the opinion that the impugned judgement and order passed by the learned District commission is nothing but a drop in the bucket and is liable to be set aside.
Now we discuss about compensation to be awarded in this particular case. We have seen the relief clause of complaint. The complainant has prayed for an amount of ₹ 1,539,752/ with interest for the loss occurred by her and also she prayed any relief which this commission think fit. Keeping in view of the judgement passed by this commission in the Complaint Case No.32 of 2013 Smt. Sabiha Hamid Versus Dr. M. Khan Hospital Stadium Road, Bareilly, & Ors., this commission has given its judgement dated 06.10.2021, the appellant/complainant is entitled for the following relief:
she is entitled to a sum of ₹ 15,39,752/with interest at a rate of 10% from 01.12.2020 till the date of actual payment and this amount shall be paid within 60 days from the date of this judgement otherwise the rate of interest shall be 15% rom 01.12.2020 till the date of actual payment.
The appellant/complainant is also entitled to get ₹ 30 lakhs towards mental torture, anxiety, harassment, cost of the case, with interest at a rate of10% from 01.12.2020 till the date of actual payment and this amount shall be paid within 60 days from the date of this judgement otherwise the rate of interest shall be 15% from 01.12.2020 till the date of actual payment.
The appeal is liable to be allowed and the impugned judgement and order is liable to be set aside.
The appeal is allowed with costs. The impugned judgement and order of the learned District commission dated 15.12.2021 in set aside . The opposite party is directed to pay to a sum of ₹ 15,39,752/- to the complainant with interest at a rate of 10% from 01.12.2020 till the date of actual payment and this amount shall be paid within 60 days from the date of this judgement otherwise the rate of interest shall be 15% from 01.12.2020 till the date of actual payment.
The opposite party is also directed to pay₹ 30 lakhs to the complainant towards mental torture, anxiety, harassment, cost of the case, with interest at a rate of10% from 01.12.2020 till the date of actual payment and this amount shall be paid within 60 days from the date of this judgement otherwise the rate of interest shall be 15% rom 01.12.2020 till the date of actual payment.
The opposite parties shall be indemnified by the insurance company if any, to the extent for which she is insured.
The stenographer is requested to upload this order on the Website of this Commission today itself.
Certified copy of this judgment be provided to the parties as per rules.
A certified copy of this judgment be placed on the record of appeal no.213 of 2022.
(Vikas Saxena) (Sushil Kumar) (Rajendra Singh) Member Member Presiding Member Judgment dated/typed signed by us and pronounced in the open court. Consign to the Record Room. (Vikas Saxena) (Sushil Kumar) (Rajendra Singh) Member Member Presiding Member DATE: 18.04.2022 Jafri, PA II, Court no 2 [HON'BLE MR. Rajendra Singh] PRESIDING MEMBER [HON'BLE MR. SUSHIL KUMAR] JUDICIAL MEMBER [HON'BLE MR. Vikas Saxena] JUDICIAL MEMBER