State Consumer Disputes Redressal Commission
Yashmeen Kaur vs Moga Medicity (Multispeciality ... on 3 May, 2017
2nd ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Consumer Complaint No.62 of 2014
Date of institution : 31.03.2014
Reserved on : 19.04.2017
Date of decision : 03.05.2017
Yashmeen Kaur (4 and half years old, Minor) D/o Sh. Jaswinder Singh,
through her guardian, Maternal Uncle, Gurcharan Singh Bath S/o Sh.
Faqir Singh, Resident of IT Chowk, Kothe Rasoolpur, Barnala, District
Barnala.
....Complainant
Versus
Moga Medicity (Multispecialty Hospital), through its Managing Director,
Dutt Road, Mandir Wali Gali, Moga, District Moga.
....Opposite Party
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Gurcharan Singh Saran, Judicial Member
Present:-
For the complainant : Sh. Sarvinder Goyal, Advocate For the opposite party : Sh. Kulbir Singh Sekhon, Advocate. JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT :
This complaint, by Yashmeen Kaur, four and half years old minor complainant, under Section 17 of the Consumer Protection Act, 1986 against the opposite party, through her guardian maternal uncle, Sh. Gurcharan Singh Bath, is for compensation on account of the injury suffered as a consequence of alleged Consumer Complaint No.62 of 2014 2 medical negligent conduct of the medical staff in the employment of opposite party, who performed surgical procedure on her mother, Mrs. Paramjit Kaur, aged 42 years, now deceased. In human terms it is a tale, from the perspective of complainant, of dashed hopes and expectations, anguish and insensitivity, culminating into stressful litigation. What would have been joyful for the minor complainant and safe entry into the world, turned out to be a nightmare, as she has been deprived of love and affection of her mother, allegedly the result of sheer medical negligence on the part of opposite party hospital.
2. "We have not lost faith, but we have transferred it from God to medical profession." ...George Bernard Shaw.
A common man treats doctor as a God on the earth. One has tremendous faith in one's heart on the doctor. When one approaches a doctor, he completely surrenders to him/her. For this reason, medical professionals should shoulder their responsibilities with all care and caution to strengthen the doctor-patient relationship.
3. Brief facts, as set out in the complaint, are that on 31.08.2011, Paramjit Kaur, mother of the complainant, (since deceased, hereinafter to be referred as "patient") approached the opposite party-Hospital for check-up/treatment of her disease and got herself registered, vide Registration No.153. The doctors and the medical staff of the said hospital, after check-up, advised her and family members to remove the tumors immediately; otherwise it might be dangerous to her life. Thus, she was admitted in the opposite party- Hospital on the same day. On 01.09.2011, Laparotomy surgery was Consumer Complaint No.62 of 2014 3 done by the doctors and staff of the opposite party-Hospital and the patient was discharged on 07.09.2011. In the medical record, it was observed that "she underwent Laparotomy and uterus, along with ovarian tumor, removed as much as possible and sent for HPE, report awaited." On 10.09.2011, she complained of pain in her stomach and she was again admitted in the opposite party-Hospital on the same day, vide Registration No.170, and the doctors of opposite party- Hospital, after check-up, diagnosed only 'gastritis' and discharged her on 11.09.2011, without treating her satisfactorily. However, she continued to experience pain from time to time. In-spite of check-up by the doctors of the opposite party-Hospital, the abdominal pain continued to exist. The brother of the patient, Gurcharan Singh, through whom the present complaint has been filed, took her to Mohan Dai Oswal Cancer Treatment & Research Foundation, Ludhiana on 23.09.2011, where CECT, Whole Abdomen (Radio Diagnosis Report) of the patient was conducted under the advice of Dr.Tajinder Kaur, MD. Only thereafter, it came to the notice of the patient, now deceased, and her family members that uterus had been permanently removed, but cystic mass/tumor had not been fully removed and some foreign body part, called "Gossypiboma", had been left in her abdomen during the operation conducted by opposite party-Hospital, due to the negligence of its Medical Officers and nursing staff. Again being not satisfied with the report of above hospital, they approached Dr. Satpal Singh Virk of DMC, Ludhiana on 26.09.2011, who also diagnosed the patient, now deceased, to be suffering from Gossypiboma. They got Consumer Complaint No.62 of 2014 4 another ultrasound scan done from Amit Scan & X-ray Centre, Barnala on 30.09.2011, where identical report was given. On 12.10.2011, again the patient, now deceased, was got admitted in Mohan Dai Oswal Cancer Hospital, Ludhiana for management of pain and she was discharged on 13.10.2011. Ultimately, she visited PGI, Chandigarh on 17.10.2011 for treatment, vide Sr. No.59 File No.MEDGEN499317. She again visited PGI on 19.10.2011 and the doctors diagnosed her to be suffering from OOPHORECTOMY & GOSSYPIBOMA.
4. Again on 22.10.2011, the patient, along with Sh. Gurcharan Singh, visited PGI, with all the reports of tests and ultrasound scans conducted upon her. The doctor, after going through the reports, prescribed some medicines and advised her to come for check-up on 03.11.2011. On 03.11.2011, Radiologist conducted CECT test and thereafter it was decided to conduct Laparotomy. Ultimately, on 08.11.2011, she was admitted in Gynae Ward of PGI for operation of the above disease, vide CR No.A4171137, and the Oophorectomy surgery was conducted on 14.11.2011 and ovary tumor was removed and a gauze piece was also removed. Thereafter, 'Gynaecologic Histopathology' Report dated 26.11.2011 was received, wherein it was reported as under:
"Received 3 containers, contain 1 foul smelling gauze piece, contain 2 received a segment of small intestine mass 50 cm length with luminal of 2-2.5 cm."Consumer Complaint No.62 of 2014 5
5. On 24.03.2012, Dr. S.S. Puri of PGI conducted the Radiotherapy, in which it was clearly mentioned that the patient, now deceased, was still suffering from Ovarian Carcinoma. She was discharged from the PGI on 24.03.2012. Thereafter, she underwent chemotherapy on various dates. The patient suffered from Gossypiboma, due to the negligence of the doctors of the opposite party-Hospital and its other staff, as a result of which the patient had to spend extra amount on her treatment. It did not try to find out the stage of Mucinous Tumor and conducted the surgery, without getting the proper and relevant tests. Firstly, it was required to diagnose the same and thereafter it should have proceeded further to conduct the surgery. The patient had got conducted the ultrasound on 27.08.2011, just two days before approaching the opposite party-Hospital. In that report, nothing like gauze was seen.
6. Accordingly, in the present complaint, complainant has sought issuance of following directions to the opposite party:
i) to pay a total compensation of ₹38,04,322/-, as per the following details:
a) ₹20,00,000/-, as compensation for mental and physical harassment, loss of love and affection;
b) ₹3,21,822/- plus ₹4,00,000/- towards treatment charges, special diet etc.;
c) ₹ 2,77,500/-, towards transportation charges;
d) ₹2,50,000/-, expenses incurred for providing attendant to the patient;
Consumer Complaint No.62 of 2014 6
e) ₹1,50,000/-, spent for special AC Room, chemotherapy, routine
sugar test etc.; and
f) ₹55,000/-, as litigation expenses.
7. In pursuance of the notice, the opposite party appeared and filed reply to the complaint, pleading that opposite party-Hospital is a highly reputed hospital, having qualified and experienced doctors and staff. The complaint is false, frivolous, illegal and has been filed with malafide intention to tarnish its image. It was admitted that patient, Paramjit Kaur, had approached the opposite party-Hospital on 31.08.2011 with severe pain in her stomach. She had already got conducted the ultrasonography of the abdomen on 27.08.2011, in which 'Impression' was mentioned as under:
"Hepatomegaly, Fatty Liver, Large Complex Multiloculated Pelvic Cystic Mass-? Mucinous Ovarian Tumor, ? Right Hydrosalphinx."
It was admitted that she was admitted on 31.08.2011 in the opposite party-Hospital and underwent Laparotomy on 01.09.2011, which was conducted by the team of doctors, consisting of Dr. Vinee, M.D. (Gynecology); Dr. H.S. Sidhu, M.S. (General Surgery); and Dr. Ramesh Thaper, M.D. (Anesthesia). During the surgery, uterus, along with ovarian tumor was removed as much as possible and was sent for HPE (Histopathological Examination). She was discharged on 07.09.2011. She was again admitted on 10.09.2011 and was discharged on 11.09.2011 in satisfactory condition. The HPE report dated 21.09.2011 revealed that she was suffering from Mucinous Cyst Consumer Complaint No.62 of 2014 7 Adenocarcinoma (Cancer). Her relatives were advised to approach the higher medical institution for further treatment. It was pleaded that the opposite party-Hospital was not negligent in any manner, while treating the patient. It was further pleaded that the patient had undergone two caesarean operations earlier, one in the year 2008 and the other in the year 2009, for removal of ovary (Oopherctomy). No medical evidence has been produced by the complainant to show that the patient died, due to the gauze left in her abdomen during surgery. Moreover, the alleged gauze present in abdomen was not the cause of her death. It was further pleaded that the surgery was conducted in the opposite party-Hospital by the qualified Gynecologist, along with other specialist doctors, as mentioned above, and no negligence was committed while performing surgery of the patient. All other allegations of the complaint were denied and it was prayed that the complaint be dismissed, with special costs.
8. In order to substantiate her claim, the complainant tendered in evidence affidavit of Sh. Gurcharan Singh Bath Ex.CW-A; affidavit of Dr. Vanita Suri, Head, Department of Obstetrics & Gynaecology, PGIMER, Chandigarh as Ex.CW-B; affidavit of Dr. Rajinder Singh, Head, Department of General Surgery, PGIMER, Chandigarh as Ex.CW-C, along with documents Ex.C-1 to Ex.C-15.
9. Learned counsel for the opposite party closed the evidence of the opposite party, by making his statement on 17.03.2017, without tendering any affidavit or documents in evidence. However, the Consumer Complaint No.62 of 2014 8 opposite party already annexed Histopathology Report dated 21.09.2011 along with the reply.
10. We have heard learned counsel for the parties and have gone through the record carefully. We have also perused the written arguments submitted on behalf of the complainant.
11. Learned counsel for the complainant vehemently contended that before approaching the opposite party-Hospital, patient Paramjit Kaur (since deceased) had got the ultrasonography done on 27.08.2011 from Sidhu Diagnostic Centre, vide report Ex.C-1. The learned counsel argued on the same lines, as averred in the complaint. The learned counsel further vehemently contended that the gauze was left by the doctors of the opposite party, while performing the surgery upon the patient and they were negligent in this regard. They did not take proper care to identify the cause of pain, in-spite of the fact that after discharge from its hospital on 07.09.2011, the patient had visited again on 10.09.2011, complaining of pain in her abdomen. The opposite party- hospital did not make any attempt for conducting CECT, whole abdomen, which was got done at Mohan Dai Oswal Cancer Hospital, Ludhiana on 23.09.2011. It was further contended that the possibility cannot be ruled out that just to conceal the negligence on the part of its doctors, the opposite party did not disclose the presence of Gossypiboma in the body of the patient to her, which was ultimately brought to her notice, after the tests were conducted at Mohan Dai Oswal Cancer Hospital, at DMCH by Dr. Satpal Singh Virk, at Amit Scan & X-ray Centre as well as at PGI. Consumer Complaint No.62 of 2014 9 Prior to the admission of the patient in the opposite party-Hospital, ultrasound test was got conducted and no such abnormal thing, like Gossypiboma, was visible. The same only became visible after conducting the surgery at the opposite party-Hospital. This clearly indicates the fault/negligence on the part of the doctors of opposite party-Hospital, which amounts to deficiency in service. No proper and due care, which is expected from a hospital and its doctors, was taken while treating the patient at the opposite party-Hospital. Later on the patient died on 23.12.2012 and the complainant, who is a minor of tender age, has been deprived of the love, affection of the mother; for which she deserves to be suitably compensated, as now she is with her maternal uncle and her future is bleak, without her mother.
12. Per contra, learned counsel for the opposite party-Hospital vehemently contended that there is nothing on the record to prove that the opposite party left the gauze in the abdomen of the patient, now deceased, mother of the complainant, while performing the surgery. There is also no document on the record to prove the cause of death. There is no report of CT Scan on record to prove that the gauze was not present before 01.09.2011. The patient had undergone two caesarean operations, one in the year 2008 and the other in the year 2009, for removal of ovary (Oopherctomy). She was suffering from cancer, as is clear from the report dated 21.09.2011, which is the biopsy report taken after the removal of the tumor from her uterus. The gauze was found near her naval, four inch above the place of cut given by the opposite party, while performing the surgery on the body Consumer Complaint No.62 of 2014 10 of the patient and there is no possibility of any gauze being left inside the body of the patient by the doctors of the opposite party. Even there is no evidence on the record to prove the age of the gauze. Learned counsel further submitted that Dr. Vanita Suri, from PGI, Chandigarh, in the report dated 12.07.2016, submitted vide dated 13.07.2016, has admitted that she cannot say how old was the gauze. Moreover, the alleged gauze present in abdomen was not the cause of her death. It was further contended that the surgery was conducted in the opposite party-Hospital by the qualified Gynecologist, along with other specialist doctors, as mentioned above, and no negligence was committed while performing surgery of the patient. The complainant is not entitled to any relief and the complaint is liable to be dismissed.
13. We have given our anxious thoughtful consideration to the arguments addressed by the learned counsel for the parties and perused the record.
14. The undisputed facts within a narrow compass are that the patient (now deceased) had undergone ultrasonography test from Sidhu Diagnostic Centre on 27.08.2011 before visiting the opposite party hospital. In the ultrasonography report of Sidhu Diagnostic Centre, Ex.C-1 the "Impression" given reads as under:
"Hepatomegaly, fatty liver fatty liver, large complex multi- loculated pelvic cystic mass-? Mucinous ovarian tumour,? Right hydrosalphinx."
Thereafter, the patient visited the opposite party-Hospital on 31.08.2011 and underwent a Laparotomy surgery on 01.09.2011 for Consumer Complaint No.62 of 2014 11 removal of mucinous ovarian tumour at the opposite party-Hospital. By 07.09.2011 she appeared to have recovered and was discharged. On 10.09.2011 she was re-admitted in the opposite party-Hospital with severe abdominal pain and after examination by the medical staff, was assured that nothing was amiss and that it was just gastritis and was discharged on 11.09.2011 and sent to home. But she did not find any relief and abdominal pain continued. On 23.09.2011, Gurcharan Singh brother of the patient, through whom present complaint has been filed, took her to Mohan Dai Oswal Cancer Treatment and Research Foundation, Ludhiana, where "Contrast Enhance Computerized tomography" examination (in short "CECT") of whole abdomen of the patient was conducted under the advice of Dr.Tejinder Kaur, MD, who suspected foreign body in the abdomen of the patient. Its report Ex.C-4 reads as under:
"History: operated case of ca ovary (status hysterectomy + BSO) Technique: Transaxial helical multislice spiral CT Scan (whole abdomen) has been performed in contract dynamic mode. Non Ionic contrast has been given.
Findings: Study reveals a large heterogeneously enhancing mixed attenuating mass lesion having soft tissue & Cystic components at pelvis measuring about 90 x 77 x 70 mm (AP x TR x CC) in size. The mass is having multiple internal septations & appears to be multiloculated. Anteriorly the fat planes with posterior wall of urinary bladder & posteriorly with Consumer Complaint No.62 of 2014 12 the rectum are effected. Few small lymph nodes are seen at B/L obturator, largest one is of size about 14 x 10 mm at right side.
Multiple enlarged lymph nodes are seen at aorto-caval, pre aortic, left para aortic level & right common iliac vessels, the largest one is of size about 20 x 14 mm."
15. Further on the second page of the above report, it was mentioned as under:
"Note is made up of a large well defined cystic attenuating sol having internal air densities is noted in abdomen adjacent to bowel loops? Nature ?? Gossypibioma."
16. On 26.09.2011, she further visited Dr. Satpal Singh Virk of Dayanand Medical College and Hospital, Ludhiana, who in his note, which is part of Ex.C-5, also mentioned the impression as "? Gossypiboma". The patient further got another ultrasonography scan on 30.09.2011 from Amit Scan & X-ray Centre, Barnala, which also gave the identical report. On 12.10.2011 again the patient was got admitted in Mohan Dai Oswal Cancer Treatment and Research Foundation, for management of abdominal pain and was discharged on 13.10.2011. Thereafter, on 17.10.2011 and 19.10.2011, the patient visited PGI, Chandigarh for treatment, where various tests were carried out and ultimately it was diagnosed for treatment of 'Oophorectomy' and Gossypiboma'. Again on 22.10.2011, the patient visited PGI along with all reports, scans and tests. The doctor at the PGI, after going Consumer Complaint No.62 of 2014 13 through the reports, scans and tests prescribed some medicines and advised to visit for checkup on 03.11.2011. On 03.11.2011, Radiologist at PGI conducted CECT and thereafter it was decided to conduct Laparotomy. Ultimately, on 08.11.2011 the patient was admitted in the Gynaecology Ward of the PGI for surgery. On 14.11.2011 Oophorectomy surgery was conducted and remaining part of ovarian tumour was removed and gauze piece (Gossypiboma) was also removed from her abdomen. The removed material was sent for histopathological examination and report of PGI dated 26.11.2011, Ex.C-11, reads as under:
"Gross:
Received 3 containers.
Contain 1 foul smelling gauze piece.
Contain 2 received a segment of small intestine meas 50 cm length with a luminal of 2-2.5cm.
Serosal aspect is congested and contains exudates. Adhesions are seen 30cm from one end 5cm from outer end, there are occasional interlacing adhesions. On opening mucosa is edematous. No uterus or growth is identified; the wall of the intestine is thickened and irregular at places. Sections from different areas of intestine. Contains 3 received 2 irregular tissue piece grey white in colour meas 1 x 0.5cm each.
Micro:Consumer Complaint No.62 of 2014 14
Section studied from the bowel show intact columnar lining epithelium. The submucosa shows mild lymphlasmacytic infiltrate and mild oedema. The serosa shows dense inflammatory infiltrate and foreign body type of giant cells. There is evidence of organizing inflammation with lymphoplasmacytic infiltrate, macrophages, oedema alongwith dilated and congested vessles and lympatics. Features are of organizing serosites. Focally the inflammation is seen extending trasmurally. The resection margins of the bowel are viable. The omentum yielded lymphnode showing reactive changes.
Section from the tissue sent as left adnexal mass shows fibrocollagenous tissue with multiple a cystic spaces lined by mucinous lining epithelium showing focal nuclear atypia and gland like structures indicating residual tumor. Diagnosis:
Bowel Mass : Serositis organizing
Adnexal mass, left : Descriptive, See Above."
17. Dr. Vanita Suri, Head, Department of Obstretrics & Gynaecology, PGIMER, Chandigarh, in her affidavit Ex.CW-B, in answer to Question No.2 (iii), clearly deposed as under:
"Exploratory Laparotomy + Adhesiolysis + Removal of Gossypiboma + resection and end to end anastomosis of perforation bearing proximal jejunum + resection of residual Consumer Complaint No.62 of 2014 15 ovarian mass + peritoneal lavage + peritoneal drainage (Annexure I)."
Further Question No.2 (ix) and the Answer thereto are given below:
ix) When the Surgery has been conducted, what was the foreign particle removed from the stomach of the patient?
Answer: Gossypiboma.
18. From the above affidavit of Dr. Vanita Suri, it is evident that Gossypiboma was removed from the stomach of the patient, while performing surgery in PGI besides ovarian tumor partially removed by opposite party. Similar is the deposition made by Dr. Rajinder Singh, Head, Department of General Surgery, PGIMER, Chandigarh in his affidavit Ex.CW-C.
19. Perusal of all the above reports as well as affidavits of the above said doctors of the PGI, Chandigarh clearly proves that the gauze was found present in the body of the patient, after the Laparotomy surgery done in the opposite party-Hospital, which was removed while conducting the surgery at PGI, Chandigarh.
20. In Medical Term, the problem of retained Surgical Sponge is known as "Gossypiboma". Cotton foreign bodies surrounded by foreign body reacts on inside the body are called "Gossypiboma". Such material causes a septic reaction, which may result into peritonitis acute abdominal pain, intra-peritoneal abscess or intestinal obstruction or perforation.Consumer Complaint No.62 of 2014 16
21. Now, the crucial point to be considered is, whether there is medical negligence on the part of the opposite party-Hospital in leaving inside the body of the patient a large piece of gauze before closing the abdomen after conducting Laparotomy surgery upon her on 01.09.2011? The piece of gauze left inside the abdomen of the patient cannot be disputed, as it is proved beyond doubt by the evidence put forth by the doctors of the PGI, Chandigarh and other reports, as mentioned above. At the cost of repetition, it is relevant to mention that on 27.08.2011, in the ultrasonography report of Sidhu Diagnostic Centre Ex.C-1, no foreign particle, like gauze, was found in the abdomen of the patient. The opposite party has not produced any material evidence on the record, such like x-ray, ultrasound report done on 01.09.2011 (date of surgery) and 07.09.2011 (date of discharge), to prove otherwise. It also did not produce any record of admission/discharge of the patient in its hospital on 10.09.2011 and 11.09.2011, when she was admitted there with complaint of pain in abdomen, just after three days of the surgery.
22. We are not in a position to accept the version of the opposite party that she had undergone caesarean sections, i.e. one in the year 2008 and the other in the year 2009, for removal of ovary (Oophorectomy). If some foreign particle/gauze was left on above two occasions, then the same must have become visible in the ultrasonogarphy report dated 27.08.2011, Ex.C-1, but no such thing is mentioned in that report. Otherwise also, before conducting the surgery, the opposite party-Hospital must have conducted requisite Consumer Complaint No.62 of 2014 17 tests, such like x-ray, ultrasound, CT Scan etc. and those documents could have been the best evidence with the opposite party to prove its version, but the same have not been produced on the record, for the reasons best known to the opposite party. In the absence of any such type of evidence on behalf of the opposite party, an adverse inference is to be taken against it. Moreover, when it is clearly mentioned in the Ultrasonography Report Ex.C-1 that the patient was having "Hepatomegaly, fatty liver, large complex multiloculated pelvic cystic mass? Mucinous ovarian tumor". In such circumstances, it was the bounden duty of the opposite party to conduct the requisite medical tests/ultrasound/CT scan etc. to further investigate the matter before going for surgery upon the patient, but there is no evidence on record to show that the same was done.
23. The real issue is, whether the complainant has been able to discharge the onus of medical negligence? Further, it is to be seen, whether the maxim 'res ipsa loquitur' (the thing speaks for itself) is applicable in the present case? The application of the maxim in medical negligence cases can be with a caveat that it can only be applied if the alleged negligence is derived from something absolute and the occurrence could not reasonably have taken place without negligence.
24. The general rule is that he/she, who asserts, must prove. In the present case initially it was the duty of the complainant to prove that the damage to her mother was caused due to the negligence of opposite party-Hospital. There is failure on the part of doctors and Consumer Complaint No.62 of 2014 18 others supporting staff to adhere to the ordinary level of skill and diligence possessed and exercised at the same time by them. It is true that medical professionals are not expected to be of highest possible degree of professional skills, but they are bound to employ reasonable skill and care. Now the question remains, whether the opposite party and its staff exercised reasonable skill and care, in other words whether or not the medical staff of opposite party-Hospital fell below the standard of a reasonably competent professional in their field?
25. The maxim 'res ipsa loquitur' is used to describe the proof of facts which are sufficient to support an inference that the opposite party was negligent and thereby to establish a prima facie case against it. It is not a presumption of law, but a permissible inference, which Commission/Court may draw, if upon all the facts, it appears to be justified. It is invoked in the circumstances, when the known facts relating to negligence consists of the occurrence itself or where occurrence may be of such a nature as to warrant an inference of negligence. The maxim alters neither the incidence of onus nor the rules of pleading.
26. In case "Malay Kumar Ganguly Vs Dr. Sukumar Mukherjee & Ors.", 2009(4) RCR (Criminal)-1(SC), Hon'ble Supreme Court dealt with the criminal negligence and civil negligence, opinion of expert witness and in Para no.48, observed as follows:-
"48. In Nizam Institute of Medical Sciences Vs. Prasanth S. Dhananka & Others, 2009(3) RCR (Criminal)- 124: 2009(3) RCR (Civil)-174 : [2009(7)SCALE-407], this Court held as under:-Consumer Complaint No.62 of 2014 19
"32. We are also cognizant of the fact that in a case involving medical negligence, once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts on to 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.
27. The contention of the opposite party that the cut was given four inches below naval, so gauze could not have moved upward, cannot be accepted as it can migrate due to the peristaltic movement of the body. The foreign particle can move to various parts of the body. After the surgery, when foreign particle was found in the body, it is known as "retained surgical item". Such a mistake was preventable and this is referred to in the medical term as "never events". It simply is not supposed to happen. When post-operation abdominal pain is complained, then the doctors and the hospital staff were required to ascertain the cause of such abdominal pain. Gauzes are used to soak the blood and other fluids. The consequences of leaving the same in the abdomen are enormous, such like soaring pain, infection, etc. No evidence has been brought on the record by the opposite party to show that they conducted any ultrasonogarphy test to ascertain the cause of post operative abdominal pain. Rather the voluminous evidence produced by the complainant on the record clearly speaks about the negligence on the part of the opposite party-Hospital. It would be appropriate to elaborate that the Laparotomy was conducted on 01.09.2011 by the surgeons, theatre staff in a manner, which Consumer Complaint No.62 of 2014 20 constitutes negligence. The conduct of the hospital surgeons and theatre staff of the opposite party-Hospital clearly shows that appropriate degree of professional skill, which may be the indicative of reasonable skill and degree, was not applied in this case and this is not expected from a reputed hospital, like the opposite party. It certainly fell below the standard of a reasonably competent staff in the concerned field in the said hospital. Principle of res-ipsa-loquitur (things speak itself) is sufficient to describe the proof of the fact, which is sufficient to support an inference that the opposite party was negligent, thereby establishing a prima facie case against it of the negligence.
28. The facts and evidence, as discussed above, clearly make out that such occurrence of leaving the foreign particle (Gossypiboma), is of such a nature as to warrant an inference of negligence against the opposite party. The complainant has led the evidence, having regard to all the allegations and she has discharged the onus of proving her case of negligence on the part of the opposite party, as averred in the complaint. The said evidence proves that the patient had to undergo another operation for removal of Gossypiboma, which was left by the doctors of the opposite party, while performing the surgery on 01.09.2011. The medical negligence on the part of the doctors and staff of the opposite party is clearly established from the facts, circumstances and evidence produced on the record.
29. The ratio of the law laid down by the Hon'ble Supreme Court in Dr. V.N. Shrikhande v. Mrs. Anita Sena Fernandes Civil Consumer Complaint No.62 of 2014 21 Appeal No.8983 of 2010 (arising out of SLP (C) No.5479 of 2009) decided on 20.10.2010, which has been relied upon by the learned counsel for the opposite party, is not applicable to the facts and circumstances of the present case, because in that case, the complainant was a nurse employed in a Government Hospital. Here is the minor (complainant), who is claiming the compensation.
30. The following leading cases give sufficient guidance about the proper approach to the drawing of inferences and use of the maxim 'res-ipsa-loquitur':
i) Hon'ble Supreme Court in Achutrao Haribhau Khodwa & Ors. v. State of Maharashtra & Ors. 1996 (2) CPSC 419 held the respondents guilty of medical negligence, as they left mop in the body of patient during operation, which led to death of the patient.
ii) Hon'ble National Commission in K. Ravindra Nath (Dr.) & Anr. v. Vitta Veera Surya Prakasam & Ors. IV (2006) CPJ 105 (NC), in similar set of circumstances, where surgical mop was left in the abdominal cavity of the complainant, which resulted in complication and necessitated second surgery, held the appellants of guilty of medical negligence and directed them to pay compensation of ₹3.5 Lakh.
31. The medical staff, who treated the patient, now deceased, were professionals in the employment and service of the opposite party-Hospital and acted within the course and scope of their employment as such similarly placed were the other assisting nursing staff etc. The doctors and the medical nursing staff owed a duty of care Consumer Complaint No.62 of 2014 22 to ensure that she was provided with proper and skilled medical treatment, including other health services and care in accordance with the generally accepted standards. The doctors and assisting medical staff of the hospital, who conducted surgery of the patient, acted negligently and in breach of accepted standards of duty of care. They failed to ensure that all surgical swabs/gauzes used in the surgery/operation had been counted before the abdomen of the patient, now deceased, was closed. The radiological images reports of various diagnostic centres/hospitals and PGI, Chandigarh surgery notes, referred to above, clearly show that hospital staff of the opposite party failed to remove all surgical swabs/gauzes from patient's abdomen. As a result of aforementioned negligent conduct of the employees of the opposite party-Hospital, the patient developed the complication referred in the foregoing paragraphs and had to visit various hospitals, as detailed above and had to undergo another Laparotomy surgery at PGI, Chandigarh.
32. Medical negligence cases do sometimes involve questions of factual complexity and difficulty and may require the evaluation of technical and conflicting evidence. In the present case complainant has been able to discharge the onus of proving on a balance of probabilities, the negligence averred against the opposite party. It appears that at the conclusion of laparotomy surgery, one of the gauzes was overlooked and remained in the abdomen of Paramjit Kaur, patient. In no other way, it could have been found its way into her abdomen.
Consumer Complaint No.62 of 2014 23
33. In addition to the various scan reports, specifically report dated 27.08.2011 Ex. C-1 and the evidence of Dr.Vanita Suri, Gynaecologist, who performed the subsequent Laparotomy when ovarian tumor and gauze was removed, testify the same. No witness was called on behalf of the opposite party-Hospital nor has any evidence been led by it. The patient, now deceased, could not have known, what happened because the relevant procedure was an operation /surgery carried out under anaesthesia. In this case, the opposite party-Hospital has been sued in its capacity, as employer of all the medical staff, who at the relevant time, attended on Smt. Paramjit Kaur during the course of surgery. What they did or did not do was exclusively within their direct knowledge, but none of those medical professionals have been called to testify. The opposite party took the risk of calling no factual evidence, when such evidence may be available with it. Now there is no doubt that it was the duty of operating surgeon and supporting medical staff to use reasonable skill and care to remove the gauze from the abdomen of the patient, before they proceeded to stitch. The indifference in the present case clearly leads to the conclusion that the opposite party was guilty of negligence. From the evidence on record led by the complainant, the inference apparently acceptable from the circumstances can be drawn. The opposite party failed to adduce any evidence to show that while Paramjit Kaur, patient was undergoing surgery, reasonable care had indeed been exercised by its medical professionals. Moreover, no explanation was advanced, as to why the medical staff, who attended Consumer Complaint No.62 of 2014 24 the patient, were not summoned as witnesses or their evidence by way of affidavit was not tendered. Furthermore, no records of the hospital have been annexed, to show how they proceeded with the case of the patient now deceased. Thus keeping in view the evidence on record, preponderance of probability and inferences, we hold that the complainant has been able to prove her case. Resultantly, complaint must succeed.
34. Now the issue of quantum of compensation needs to be examined.
35. Human life is most precious. It is extremely difficult to decide on the quantum of compensation in the medical negligence cases, as the quantum is highly subjective in nature. Different methods are applied to determine compensation.
36. Hon'ble National Commission in Dr. (Mrs.) Indu Sharma v. Indraprastha Apollo Hospital & Others Consumer Case No.104 of 2002, decided on 22.04.2015, observed in Paras No.53, 59 & 60 as follows:
53. A decision in the case of Spring Meadows Hospital & Anr.
v. Harjol Ahluwalia through K.S. Ahluwalia & Anr reported in (1998) 4 SCC 39. Their Lordships observed as follows:
" Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned. In the former case a court Consumer Complaint No.62 of 2014 25 can accept that ordinary human fallibility precludes the liability while in the latter the conduct of the defendant is considered to have gone beyond the bounds of what is expected of the skill of a reasonably competent doctor."
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59. Nizam Institute Case- 2009 Indlaw SC 1047:
In the Nizam Institute case 13, the Supreme Court did not apply the multiplier method. In 1990, twenty-year old Prasant S. Dhananka, a student of engineering, was operated upon at the Nizam Institute of Medical Sciences, Hyderabad. Due to medical negligence of the hospital, Prasant was completely paralysed. Compensation was claimed, and the matter finally reached the Supreme Court. The court did not apply the multiplier method and awarded a compensation of Rs. 1 crore plus interest. The court observed:
"Mr. Tandale, the learned counsel for the respondent has, further, submitted that the proper method for determining compensation would be the multiplier method. We find absolutely no merit in this plea. The kind of damage that the complainant has suffered, the expenditure that he has incurred and is likely to incur in the future and the possibility that his rise in his chosen field would now be restricted, are matters which cannot be taken care of under the multiplier method.
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60. Kunal Saha's Case (2014) 1 SCC 384 :
The Supreme Court rejected the multiplier method in this case and provided an illustration to show how useless the method can be for medical negligence cases. Hon'ble Justice Mr.V.Gopala Gowda opined that;:
"The multiplier method was provided for convenience and speedy disposal of no fault motor accident cases. Therefore, obviously, a "no fault" motor vehicle accident should not be compared with the case of death from medical negligence under any condition. The aforesaid approach in adopting the multiplier method to determine the just compensation would be damaging for society for the reason that the rules for using the multiplier method to the notional income of only Rs.15,000/- per year would be taken as a multiplicand. In case, the victim has no income then a multiplier of 18 is the highest multiplier used under the provision of Ss. 163 A of the Motor Vehicles Act read with the Second Schedule.... Therefore, if a child, housewife or other non- working person fall victim to reckless medical treatment by wayward doctors, the maximum pecuniary damages that the unfortunate victim may collect would be only Rs.1.8 lakh. It is stated in view of the aforesaid reasons that in today's India, Hospitals, Nursing Homes and doctors make lakhs and crores of rupees on a regular basis. Under such scenario, allowing the multiplier method to be used to Consumer Complaint No.62 of 2014 27 determine compensation in medical negligence cases would not have any deterrent effect on them for their medical negligence but in contrast, this would encourage more incidents of medical negligence in India bringing even greater danger for the society at large."
37. Admittedly, the deceased was of 42 years old female and the complainant is her legal heir, who was a child of less than 5 years at the time of death of her mother. We are of the definite view that motherly care and affection is indispensible for healthy growth of minor. The selfless interest of mother for welfare of her children is by and large found to be part of her nature. No one else can provide love and affection to a female child, as a mother can; as the lap of mother is God's own cradle for children.
38. Keeping in view the facts and evidence produced on the record, besides the tender age of the minor complainant, the welfare of the minor, specifically keeping in view her future, studies etc, ordinary contentment, health, education, intellectual development and favourable circumstances, over and above physical comforts, the moral and ethical values have also to be taken into consideration, while awarding compensation. The female child of five years of age, in our opinion, needs most tender affection, the caring hand and company of her natural mother, which she has been deprived, because she is no more. Neither her father nor any of her relations, howsoever close, well meaning and affectionate may be towards the minor, can Consumer Complaint No.62 of 2014 28 appropriately serve as a substitute for the minor's natural mother. When a female child grows up she needs special care, many things she can only share with natural mother and not even with father or any other female relations.
39. In the present case, the mother, aged 42 years, of the complainant has died due to medical negligence of the opposite party- Hospital and the complainant has been deprived of all the above mentioned comforts and care at present and in future. Although, no amount of money would be sufficient to compensate the loss of mother for a minor child, yet we assess ₹18,00,000/-, as compensation for loss of mother, her love, affection, future care, mental agony, harassment etc., along with interest and costs. The complainant has produced list of the bills Ex.C-13, along with copies of bills from Serial No.1 to 175- A, showing the total medical expenses of ₹3,21,822.91P. In our view, ₹3,00,000/- would be just and proper amount to be awarded towards medical expenses incurred on the treatment of the mother of the complainant.
40. In view of our above discussion, the complaint is allowed and following directions are issued to the opposite party-Hospital:
i) to pay ₹18,00,000/-, as compensation for loss of mother, her love, affection, future care, mental agony, harassment etc., along with interest at the rate of 9% per annum from the date of death of the deceased i.e. 23.12.2012 till realization;
ii) to pay ₹3,00,000/- in lumpsum towards medical bills; and
iii) to pay ₹30,000/-, towards litigation expenses. Consumer Complaint No.62 of 2014 29
The opposite party is directed to comply with this order within a period of one month of the receipt of certified copy thereof. The opposite party is further directed to deposit the entire amount in the shape of FDR in a nationalized Bank, in favour of the minor complainant, which may earn maximum interest and the complainant shall be entitled to withdraw the amount of interest accrued on the said FDR, from time to time, for her daily pursuits, through her guardian. The complainant shall be entitled to withdraw the entire outstanding amount of the FDR, when she will attain the age of 21 years.
41. The complaint could not be decided within the stipulated timeframe, due to heavy pendency of Court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (GURCHARAN SINGH SARAN) JUDICIAL MEMBER May 03, 2017.
(Gurmeet S)