National Consumer Disputes Redressal
Dr. Yoginiben N. Patel vs Smt. Dakshaben on 17 February, 2010
RP 2509 / 2002 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 215 OF 2005 (From the order dated 28.04.05 in Compl. No. 57/1996 of Gujarat State Consumer Disputes Redressal Commission) Dr. Yoginiben N. Patel Kanta Lakshmi Hospital Desai Vado, Nadiad, Gujarat Appellant Versus Smt. Dakshaben W/o Mr. Hasmukh Modi, DAZ 76/A, Adipur, Kachchh, Gujarat Respondent BEFORE:- HONBLE MR. JUSTICE ASHOK BHAN, PRESIDENT HONBLE MR. B.K. TAIMNI, MEMBER For the Appellant : Mr. Yogender Handoo, Advocate Mr. Sumit Bhatia, Advocate Ms. Pratibha Singh, Advocate For the Respondent : Mr. K.P. Toms, Advocate Mr. Vipin Nair, Advocate PRONOUNCED ON 17th FEB. 2010 O R D E R
MR. B.K. TAIMNI, MEMBER Appellant was the opposite party before the State Commission, where the respondent / complainant had filed a complaint alleging medical negligence on the part of the appellant.
Undisputed facts of the case are that the respondent / complainant approached the appellant for purpose of delivery, for which she was admitted on 28.10.94, whereafter a caesarean-section operation was done on 31.10.94 resulting in, giving birth a baby girl. It was the case of the complainant that she had abdominal pain after delivery, for which she consulted the appellant. When the pain was not subsiding, the complainant was taken by her husband and they approached Dr. Paruben Raiyani of Gandhidham, who after getting a sonography report, carried out second surgery to remove the swab (piece of napkin like cloth of white colour). According to the complainant this was a clear case of negligence as the appellant / opposite party after carrying caesarean section for delivering the child left behind the swab affecting her health in the days to come. It is in these circumstances, a complaint was filed.
The case was contested by the appellant by filing written version. Evidence were also filed from both the sides and deponents were cross-examined. The State Commission, after hearing the parties, allowed the complaint and directed the appellant to pay Rs.1,50,000/- as compensation alongwith interest @9% p.a. from the date of filing of complaint till payment. A cost of Rs.5,000/- was also awarded. Aggrieved by this order, this appeal has been filed before us.
We heard the Ld. Counsel for both the parties and perused the material on record.
The only point of issue is whether the appellant left behind swab after carrying out the surgery on 31.10.94 or not?
We see that the main defence put forward by the appellant, is that sonography reports carried out subsequent to the operation, have not been produced, to prove the case of the complainant, thus, in their view, the complainant has not been able to prove the case of medical negligence, vis--vis, the appellant.
We have very carefully gone through the written version filed by the appellant before the State Commission and we find that no such plea finds any mention in the written version. They have denied the allegation that any swab was left in the cavity of the complainant while performing the surgery on 31.10.94. There is no reference to non-production of sonography reports in the written version. To the contrary what is stated in para 7 is, ..The complainant informed the opponent that she had consulted Dr. Trivedi and X-ray, abdominal scan and blood, urine tests were carried out and the same were normal.. In the affidavit as well as in cross-examination of the complainant, it has been specifically averred that she had not gone to Dr. Trivedi for any sonography. In Para 3 of the cross-examination, the complainant has stated, After showing to Dr. Yoginiben Patel, I had gone to Dr. Trivedi for examination not for sonography. It is not true, if it is said that I had told Dr. Yoginiben Patel that according to opinion of Dr. Trivedi, everything is alright So much for the sonography report especially of Dr. Trivedi, in our view, the most important examination evidence is of Dr. Paruben Raiyani, which reads as under:-
Smt. Dakshaben Modi had come to me on 26.12.1994 for examination. Her operation stitches condition had become worse and pus was present and foul smell was coming out.
Therefore, advice was given for her ultra sonography, from which it certain F.B. was found in abdomen. Due to much pus, higher antibiotics had been given and dressing was done for about 7 8 days. First pus level became low and thereafter it again increased and as such other General Surgeon Dr. Y.B. Joshi was consulted and thereafter lepotomy operation was performed on 6.1.95 with the help of Dr. Y.B. Joshi. Much foul smell came out on making cut during operation.
In the abdomen, napkin size Gause came out and intolerable smell was coming out. There was one finger size hole in the large intestine and the remaining intestines and opener had affixed with each other. We opened all adhesion. Considering that patient is not in general condition, we put stitches on the hole of large intestine and after taking our napkin and clearing all parts properly completed the operation. Opener, large intestine and womb have formed a separate cavity by affixing with each other.
Due to presence of foul smell pus, tissue fibres have been there and due to bad condition of the patient it was not possible to separate al adhesions. Her blood was 6 gm and as such three bottles before operation and two bottles after operation, i.e., in total five bottles of blood had been given.
Even after five days of operation due to coming out of pus, the patient was transferred to Jamnagar Irwin Hospital in an ambulance along with medical notes and further treatment was done there.
Due to coming out of very foul smell pus she was daily given higher antibiotics medicines and injections.
She has clearly supported the contention of the complainant in her cross-examination, meaning thereby that the case of the respondent / complainant about the swab having been left behind post surgery, is clearly proved by the evidence of Dr. Paruben Raiyani. On the other hand, we have only the evidence of the appellant to rebut by way of blank denial. Despite clear direction that the appellant should complete the record by filing pleadings, affidavit, evidence and other material, which were before the State Commission, Appellant has not produced on record the evidence by way of affidavit filed by the appellant before the State Commission.
What has been brought on record on her behalf is further examination and cross-examination on a limited point only, which does not help the case of the appellant. Adverse inference has to be drawn against the Appellant on this account. If it was the case of the appellant that the swab could have been left in the intervening period where two more surgeries were carried out, but then in such a case, it was for the appellant to prove that such a thing happened else where and not during surgery carried out by her.
Least, the appellant could have done was to produce the evidence of nurse(s) or any other assistant Doctor, who assisted the appellant in carrying out caesarean section, to state that all the material like swab which were used had been accounted for, to support her case, that swab was not left in the body of the complainant at the time of surgery in their hospital. No independent evidence has been led by the appellant to prove her case.
In our view, the complainant was able to prove her case of medical negligence on the part of the appellant by her own evidence as well as of Dr. Paruben Raiyani. On record, we see no request made by the appellant made before the State Commission to either summon the record or examine the Doctors who examined the patient in between.
We are further supported by the judgement of the Honble Supreme Court in the case of Achutrao haribhau Khodwa & Ors. Vs. State of Maharashtra & Ors. [(1996) 2 SCC 634], in which the Honble Supreme Court has held as under:-
Chandrikabai had had a minor operation on 13th July, 1963 and due to the negligence of respondent no.2 a mop (towel) was left inside her peritonial cavity. It is true that in a number of cases when foreign bodies are left inside the body of a human being either deliberately, as in the case of orthopaedic operations, or accidentally no harm may befall the patient, but it also happens that complications can arise when the doctor acts without due care and caution and leaves a foreign body inside the patient after performing an operation and it suppurates. The formation of pus leaves no doubt that the mop left in the abdomen caused it, and it was the pus formation that caused all the subsequent difficulties. There is no escape from the conclusion that the negligence in leaving the mop in Chandrikabai's abdomen during the first operation led, ultimately, to her death. But for the fact that a mop was left inside the body, the second operation on 19th July, 1963 would not have taken place. It is the leaving of that mop inside the abdomen of Chandrikabai which led to the development of peritonitis leading to her death. She was admitted to the hospital, on 10th July, 1963 for a simple case of delivery followed by a sterilization operation. But even after a normal delivery she did not come out of the hospital alive. Under these circumstances, and in the absence of any valid explanation by the respondents which would satisfy the court that there was no negligence on their part, we have no hesitation in holding that Chandrikabai died due to negligence of respondent nos. 2 and 3.
Even if it be assumed that it is the second operation performed by Dr. Divan which led to the peritonitis, as has been deposed to by Dr. Purandare, the fact still remains that but for the leaving of the mop inside the peritoneal cavity, it would not have been necessary to have the second operation. Assuming even that the second operation was done negligently or that there was lack of adequate care after the operation which led to peritonitis, the fact remains that Dr. Divan was an employee of respondent no.1 and the State must be held to be variously liable for the negligent acts of its employees working in the said hospital. The claim of the appellants cannot be defeated merely because it may not have been conclusively proved as to which of the doctors employed by the State in the hospital or other staff acted negligently which caused the death of Chandrikabai. Once death by negligence in the hospital is established, as in the case here, the State would be liable to pay the damages. In our opinion, therefore, the High Court clearly fell in error in reversing the judgment of the trial court and in dismissing the appellants' suit.
In the case before us Dr. Paruben Raiyani, has clearly stated in her evidence the foul smell was coming out of wound as a result of pus formation on account of swab having been left inside the body of the complainant after surgery. This case is fully covered by the judgement (supra).
In the aforementioned circumstances, we find no merit in this appeal.
Dismissed.
No order as to costs.
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(ASHOK BHAN, J.) PRESIDENT ..
(B.K. TAIMNI) MEMBER RS/