State Consumer Disputes Redressal Commission
Ramtirath vs Dr. P.K. Pathak on 19 December, 2023
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/2606/2016 ( Date of Filing : 18 Oct 2016 ) (Arisen out of Order Dated 14/09/2016 in Case No. C/97/2015 of District Mainpuri) 1. Ramtirath Mainpuri ...........Appellant(s) Versus 1. Dr. P.K. Pathak Mainpuri ...........Respondent(s) BEFORE: HON'BLE MR. Rajendra Singh PRESIDING MEMBER HON'BLE MR. Vikas Saxena JUDICIAL MEMBER PRESENT: Dated : 19 Dec 2023 Final Order / Judgement राज्य उपभोक्ता विवाद प्रतितोष आयोग , उ0प्र0 , लखनऊ। सुरक्षित अपील सं0- 2606/2016 (जिला उपभोक्ता आयोग, मैनपुरी द्वारा परिवाद सं0-97/2015 में पारित प्रश्नगत निर्णय एवं आदेश दिनांक 14-09-2016 के विरूद्ध) रामतीर्थ आयु 53 वर्ष पुत्र लालता प्रसाद निवासी-मोहल्ला मैनपुरी रोड, भौगॉंव, जिला मैनपुरी। ...........अपीलार्थी/परिवादी। बनाम डॉ0 पी0के0 पाठक द्वारा पाठक हास्पिटल, कचहरी रोड, निकट डी0ए0वी0 इण्टर कालेज, मैनपुरी। ............ प्रत्यर्थी/विपक्षी। समक्ष:- 1.
मा0 श्री राजेन्द्र सिंह, सदस्य।
2. मा0 श्री विकास सक्सेना सदस्य।
अपीलार्थी की ओर से उपस्थित: श्री आलोक कुमार सिंह विद्वान अधिवक्ता।
प्रत्यर्थी की ओर से उपस्थित : श्री सुशील कुमार शर्मा विद्वान अधिवक्ता।
दिनांक : 17-01-2024.
मा0 श्री राजेन्द्र सिंह , सदस्य द्वारा उदघोषित निर्णय यह अपील उपभोक्ता संरक्षण अधिनियम, 1986 की धारा-15 के अन्तर्गत, जिला उपभोक्ता आयोग, मैनपुरी द्वारा परिवाद सं0-97/2015 में पारित प्रश्नगत निर्णय एवं आदेश दिनांक 14-09-2016 के विरूद्ध योजित की गयी है।
संक्षेप में अपीलार्थी का कथन है कि प्रश्नगत निर्णय एवं आदेश विधि विरूद्ध एवं तथ्यों से परे है। विद्वान जिला आयोग ने यह निष्कर्ष देने में त्रुटि की कि परिवादी ने किसी भी ऐसे डॉक्टर की आख्या प्रस्तुत नहीं की, जिसने परिवादी का इलाज पुष्पांजली हास्पिटल में किया और न ही कोई शपथ पत्र ही दिया। पुष्पांजली हास्पिटल की डिस्चार्ज समरी में यह लिखा है कि एक्सप्लोरेटरी लेप्रोटॉमी एक्सीजन (हर्निया सेक विद रिसेक्सन आफ द हेरिनेटेड बावेल) में देखा गया कि स्माल बावेल में फीकल लीक था। जांच में उन्होंने अम्बिलिकल हर्निया कटा हुआ पाया, जिससे यह लीकेज हो रहा था। डॉ0 पी0के0 पाठक ने यह कहा कि अम्बिलिकस एब्सेस पाया, जिसे काटकर बहाने की सलाह दी और लोकल एनेस्थेसिया के अन्तर्गत इसे किया गया। डॉ0 पी0के0 पाठक के यहॉं यह मरीज दिनांक 20-10-2014 से 23-10-2014 तक रहा और दिनांक 23-10-2014 को ही वह पुष्पांजली हास्पिटल पहुँचा। वहॉं डॉ0 मयंक जैन ने इसका इलाज किया और रिसाव को रोका। डॉ0 पी0के0 पाठक के यहॉं की बी0एच0टी0 प्रस्तुत नहीं की। इन तथ्यों को न देखते हुए परिवादी का परिवाद विद्वान जिला आयोग ने दिनांक 14-09-2016 को निरस्त कर दिया। अत: माननीय राज्य आयोग से निवेदन है कि विद्वान जिला आयोग का प्रश्नगत निर्णय अपास्त करते हुए अपील स्वीकार की जाये।
हमारे द्वारा अपीलार्थी के विद्वान अधिवक्ता श्री आलोक कुमार सिंह एवं प्रत्यर्थी के विद्वान अधिवक्ता श्री सुशील कुमार शर्मा की बहस विस्तार से सुनी गई तथा पत्रावली का सम्यक् रूप से परिशीलन किया गया।
परिवादी के कथनानुसार वह दिनांक 20-10-2014 को अपने असहनीय पेट दर्द के कारण विपक्षी के यहॉं भर्ती हुआ था तथा विपक्षी ने उसका परीक्षण करके तुरन्त ऑपरेशन कराने का निदान किया था और इस सम्बन्ध में उससे तीस हजार रूपया जमा कराकर आपरेशन के लिए भर्ती कर लिया था। विपक्षी ने उस राशि की कोई भी रसीद नहीं दी थी, विपक्षी ने अन्य कोई भी परीक्षण कराये बिना उसकी नाभि के ऊपर दोपहर में ही दिनांक 20-10-2014 को पेट का आपरेशन कर दिया था। इस सम्बन्ध में विपक्षी ने बताया था कि हर्निया का ऑपरेशन हुआ है, मरीज व डॉक्टर के परस्पर विश्वास जनित सम्बन्ध के अन्तर्गत परिवादी ने रसीद के लिये जोर विपक्षी पर नहीं दिया था। ऑपरेशन के बाद विपक्षी ने परिवादी के पेट में कोई सिलाई न करके पट्टियों से बांध दिया था। उक्त ऑपरेशन के लिये परिवादी के परिजन द्वारा विपक्षी के अस्पताल में स्थित दवाईयों की दुकान से दस हजार रूपये की दवाईयॉं व अन्य सामान भी खरीदा था, जिसके मांगने पर भी वितरक द्वारा रसीद नहीं दी गई। आपरेशन के करीब पॉंच घण्टे बाद परिवादी को रक्त की उल्टी हुई थी तथा पेट के चिरे हुये भाग से खून तथा मल निकलने लगा था, परिवादी के परिजनों ने विपक्षी को सेवारत कम्पाउडर से सूचना भिजवाई थी लेकिन रात भर मरणासन्न परिवादी को देखने के लिये विपक्षी ने आने की जहमत नहीं उठाई तथा परिवादी के अशिक्षित नर्स के द्वारा किये गये उपचार से परिवादी की हालत बिगड़ती चली गई।
इस अस्पताल से निकलने के बाद परिवादी आगरा के पुष्पांजली हास्पिटल एवं रिसर्च सेण्टर में पहुँचा। हमने पुष्पांजली हास्पिटल की डिस्चार्ज समरी का अवलोकन किया, जिसमें भर्ती की तारीख 23-10-2014 और डिस्चार्ज की तारीख 07-11-2014 अंकित है। इसमें मरीज के भर्ती के समय अम्बिलिकल हर्निया पाया गया और बाहर सूजन के स्थान पर एक चीरा मिला, जिससे फीकल पदार्थ बह रहा था। 07 दिनों से उसे दर्द की शिकायत थी। उसकी पल्स रेट 32 और रक्त चाप 110/70 पाया गया। मरीज का टैम्परेचर 102 डिग्री फारेनहाइट था।
हमने डॉ0 पी0के0 पाठक के पर्चे का अवलोकन किया, जिसमें अम्बिलिकस एब्सेस को दिनांक 20-10-2014 से बहाना लिखा है और फिर उसे उच्चीकृत केन्द्र को सन्दर्भित करना लिखा हुआ है। डॉ0 पी0के0 पाठक द्वारा प्रस्तुत लिखित कथन प्रस्तुत किया गया था, जिसमें उन्होंने प्रस्तर-12 में लिखा है कि परिवादी को दिनांक 20-10-2014 को सुबह 11.15 बजे नर्सिंग होम में भर्ती किया गया। जहॉं पर अम्बिलिकस के चारों ओर सूजन और दर्द की शिकायत थी। उस पर चीरा लगाकर मवाद को बहाने की सलाह दी गयी और उसे आई0वी0 इंजेक्शन तथा एण्टीबायोटिक भी दिये गये। इसके अतिरिक्त उसे इंजेक्शन के माध्यम से दर्द निवारक दवाऐं, उल्टी रोकने के इंजेक्शन तथा अल्सर रोकने के इंजेक्शन दिये गये। दिन के 2- 3 बजे तक वह लोकल एनेस्थेसिया के प्रभाव में था। उससे लगभग 250-300 एम0एल0 पस निकाला गया। इसके पश्चात् ड्रैसिंग कर दी गयी। रात 8 बजे पुन: देखा गया और पाया गया कि उसकी हालत ठीक है।
विपक्षी ने यह भी स्वीकार किया है कि पुन: दिनांक 21-10-2014 को सुबह 9.30 बजे मरीज का पुन: निरीक्षण किया गया और उसकी हालत में सुधार पाया गया। ड्रैसिंग, खून और पस से भीगा हुआ था। उल्टी की शिकायत होने पर उसे रोकने से सम्बन्धित इंजेक्शन दिया गया और ड्रैसिंग को बदला गया। उसी दिन रात 8.30 बजे पुन: निरीक्षण किया गया और उसकी हालत में सुधार पाया गया।
पुन: दिनांक 22-10-2014 को सुबह 10 बजे उसका निरीक्षण किया गया और पाया गया कि उसकी स्थिति सामान्य हो रही है। उसी दिन 10.30 बजे पुन: निरीक्षण किया गया और उसकी हालत ठीक पायी गयी। दिनांक 23-10-2014 को परिवादी ने विपक्षी को सुबह 7.30 बजे बुलाया और जांच में उसे ठीक पाया गया। उसने यह शिकायत की कि उसकी नाभि के पास से फीकल पदार्थ डिस्चार्ज हो रहा है। इसको घाव से निकाला गया और ड्रैसिंग की गयी। बड़ी सर्जरी की सुविधा अस्पताल में नहीं थी, इसलिए उसे सलाह दी गयी कि वह उच्चीकृत अस्पताल जाये।
विपक्षी ने यह स्पष्ट रूप से स्वीकार किया है कि परिवादी उसके यहॉं दिनांक 20-10-2014 से 23-10-2014 तक भर्ती रहा। इन्हीं तथ्यों के परिप्रेक्ष्य में विपक्षी का पत्रावली पर जो प्रेस्क्रिप्शन प्रस्तुत किया गया है वह किस दिनांक का है यह स्पष्ट नहीं है, किन्तु विपक्षी की स्वयं की स्वीकारोक्ति से यह स्पष्ट है कि मरीज विपक्षी के नर्सिंग होम में दिनांक 20-10-2014 से 23-10-2014 तक भर्ती रहा।
दौरान् बहस कहा गया कि वह प्रत्यर्थी के यहॉं भर्ती नहीं रहा, जबकि प्रत्यर्थी की स्वयं की स्वीकारोक्ति से यह स्पष्ट है कि मरीज इनके यहॉं भर्ती रहा। नाभि के पास सूजन और फोड़े के मवाद को चीरा देकर निकाला गया और उसकी ड्रैसिंग की गयी। उसी स्थान से फीकल पदार्थ बाहर आने लगा, जो प्रत्यर्थी की लापरवाही को स्पष्ट करता है। प्रत्यर्थी ने यह स्वीकार किया है कि उसके यहॉं बड़ी सर्जरी से सम्बन्धित सुविधा नहीं है, फिर भी उन्होंने लोकल एनेस्थेसिया देकर मरीज के मवाद को निकाला और अपने यहॉं लगभग 04 दिन भर्ती रखा। अगर आपरेशन छोटा था तब 04 दिन भर्ती रखने की आवश्यकता नहीं थी।
जब कोई डॉक्टर मेडिकल प्रोफेशन में प्रवेश करता है उस समय वह एक शपथ लेता है, जो निम्नप्रकार है :-
As per guidelines of MCI, Every member should get it framed in his or her office and 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."
अब हम विचार करते हैं कि इस मामले में डॉक्टर की लापरवाही और उससे सम्बन्घित सिद्धान्त रेस इप्सा लाक्युटर के बारे में, जो निम्नप्रकार से है :-
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. Santha 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, 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.
DOCTRINE OF RES IPSA LOQUITAR The thing speaks for itselfis the gist of the maxim Res Ipsa Loquitur Maxim. What are the essentials of this 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.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 ipsa loquitur 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 Rs.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 ave 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 negligenceleads 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 Hon'ble 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 Hon'ble 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. Kaushik Nandy 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 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."
अब हमने पुष्पांजलि हास्पिटल की डिस्चार्ज समरी का अवलोकन किया, जहॉं पर रोगी दिनांक 23-10-2014 को भर्ती हुआ और दिनांक 07-11-2014 को वहॉं से डिस्चार्ज हुआ। वहॉं के परीक्षण में यह पाया गया कि irreducible umbilical hernia था और वहॉं पर एक कट का निशान पाया गया जहॉ से लैट्रिन का रिसाव हो रहा था। बाद में इसको "exploratory laparotomy excision of the hernia sac with resection of the herniated bowel." किया गया। इससे स्पष्ट है कि यह मामला अम्बिलिकस हर्निया का था न कि नाभि के आस-पास सूजन का।
अब हम यह देखते हैं कि विपक्षी के नर्सिंग होम में क्या हुआ। विपक्षी ने कहा कि परिवादी की आयु लगभग 60 वर्ष है और दिनांक 20-10-2014 को उसके नर्सिंग होम में भर्ती हुआ। नाभि के चारों ओर पिछले 06 दिनों से सूजन और लालिमा थी। इसको कहा गया कि यह अम्बिलिकस एब्सेस है और उसे तुरन्त चीरा लगाकर मवाद बहाने की सलाह दी गयी। परिवादी को इन्ट्रावेनस इंजेक्शन, एण्टीबायोटिक इंजेक्शन, दर्द निवारक इंजेक्शन, उल्टी रोकने के इंजेक्शन तथा अल्सर निरोधी इंजेक्शन दिये गये तथा हालत सामान्य होने पर उसे लोकल एनेस्थेसिया देते हुए मवाद को बहाया गया और लगभग 250 - 300 एम0एल0 मवाद उसकी नाभि के आस-पास से बहाया गया। उसके पश्चात् इसे हाइड्रोजन परऑक्साइड यूसोल से धोते हुए उसकी ड्रैसिंग की गयी। दिनांक 23-10-2014 को परिवादी ने सुबह 7.30 बजे विपक्षी को बुलाया। परिवादी का पुन: परीक्षण किया गया और पाया गया कि उसकी सामान्य हालत पहले से अच्छी है। परिवादी ने यह शिकायत की कि उसकी नाभि के पास लगे चीरे से फीकल मैटर बह रहा है। विपक्षी ने कहा कि ऐसा इसलिए हुआ कि परिवादी ने उसकी सलाह को नहीं माना और अपने को लैट्रिन करते समय नियन्त्रण में नहीं रखा। तुरन्तही घाव को खोला गया और फिर इसकी ड्रैसिंग की गयी। विपक्षी के यहॉं बड़ी सर्जरी की व्यवस्था नहीं थी इसलिए उसको विपक्षी ने सलाह दी कि वह उच्चीकृत केन्द्र में जाकर अपना इलाज कराये। विपक्षी ने यह भी कहा कि उसने पूरी ईमानदारी और गम्भीरता के साथ परिवादी का इलाज किया और इसमें न तो उसके द्वारा सेवा में कोई कमी की गयी और न ही कोई उपेक्षा दिखायी गयी। विपक्षी ने पूरी सुरक्षा के साथ परिवादी के फोड़े से मवाद निकाला। इसीलिए परिवादी दिनांक 20-10-2014 से 23-10-2014 तक ठीक था और जो भी परेशानी उत्पन्न हुई वह परिवादी की अपनी उपेक्षा और लापरवाही के कारण हुई, क्योंकि उसको विपक्षी की सलाह को नहीं माना।
विपक्षी ने परिवादी को ही दोषी बना दिया, यह कहते हुए कि उसने उनकी बातों को नहीं माना लेकिन नर्सिंग होम में सारा तन्त्र विपक्षी के अधीन कार्यरत था और वहॉ पर परिवादी, रोगी के रूप में भर्ती था।
Health care professionals involved in rehabilitation are often involved in discharge planning for patients. When considering patient discharge, there are a number of factors to take into consideration: the patient's current state, their place of residence and the type of support available. When considering the patient's current state, although the patient may be eligible for discharge it is important to examine factors such as the likelihood of re-injury to avoid higher health care costs. Patients' homes should also be visited and examined before they are discharged from the hospital to determine any immediate challenges and corresponding goals, adaptations and assistive devices that need to be implemented. Follow-up appointments should also be coordinated with the patient prior to discharge to monitor the patient's progress as well as any potential complications that may have arisen. This case it is really strange that the diagnosis was only for umbilical abscess while in the subsequent higher centre it was diagnosed as umbilical hernia. In this case it is clear that there was lack of post-operative care in the complainant's Hospital. In cases of the release of pus from an abscess generally the patients are discharged on the same day but in this case the patient was admitted as indoor patient in the hospital so all the responsibility will be of the hospital staff. The opposite party cannot say that the patient did not comply his advice. Compliance of advice of the concerned Dr remains on the paramedical staff of the hospital. It has not been disclosed as to which advice was not followed.
The very important aspect of a hospital delays to the preoperative and post-operative care of the patient. In this case as no operation was performed in the hospital of the opposite party but after giving local anaesthesia his so-called umbilical abscess was punctured and pus was drained out. So first we see that what is a medical hernia.
What is an umbilical hernia?
The umbilical cord connects a mother and her fetus while in the womb. Babies' umbilical cords pass through a small opening between their abdominal wall muscles. In most cases, the hole closes soon after birth. An umbilical hernia occurs when the abdominal wall layers don't join completely, and the intestine or other tissues from inside the abdominal cavity bulge through the weak spot around the belly button. About 20 percent of babies are born with an umbilical hernia.
Umbilical hernias are generally painless and don't cause any discomfort. About 90 percent of umbilical hernias will eventually close on their own, according to Johns Hopkins Medicine. If an umbilical hernia doesn't close by the time a child is 4 years old, it will require treatment.
What causes umbilical hernias?
An umbilical hernia occurs when the opening in the abdominal muscle that allows the umbilical cord to pass through fails to close completely. Umbilical hernias are most common in babies, but they can also occur in adults.
African-American babies, premature babies, and babies born at a low birth weight are at an even higher risk of developing an umbilical hernia. There is no difference in occurrence between boys and girls, according to Cincinnati Children's Hospital Center.
An umbilical hernia in adults usually occurs when too much pressure is put on a weak section of the abdominal muscles. Potential causes include:
being overweight frequent pregnancies multiple gestation pregnancies (having twins, triplets, etc.) excess fluid in the abdominal cavity abdominal surgery having a persistent, heavy cough What are the symptoms of an umbilical hernia?
Umbilical hernias can usually be seen when your baby is crying, laughing, or straining to use the bathroom. The telltale symptom is a swelling or bulge near the umbilical area. This symptom may not be present when your baby is relaxed. Most umbilical hernias are painless in children.
Adults can get umbilical hernias as well. The main symptom is the same -- a swelling or bulge near the navel area. However, umbilical hernias can cause discomfort and be very painful in adults. Surgical treatment usually is required.
The following symptoms may indicate a more serious situation that requires medical treatment:
the baby is in obvious pain the baby suddenly starts vomiting the bulge (in both children and adults) is very tender, swollen, or discolored How doctors diagnose umbilical hernias A doctor will perform a physical exam to determine if an infant or adult has an umbilical hernia. The doctor will see if the hernia can be pushed back into the abdominal cavity (reducible) or if it is trapped in its place (incarcerated). An incarcerated hernia is a potentially serious complication because the trapped part of the herniated contents may become deprived of a blood supply (strangulated). This can cause permanent tissue damage.
Your doctor may take an X-ray or perform an ultrasound on the abdominal area to ensure that there are no complications. They may also order blood tests to look for infection or ischemia, especially if the intestine is incarcerated or strangulated.
Are there any complications associated with umbilical hernias?
Complications from umbilical hernias rarely occur in children. However, additional complications can occur in both children and adults if the umbilical cord is incarcerated.
Intestines that can't be pushed back through the abdominal wall sometimes don't get adequate blood supply. This can cause pain and even kill the tissue, which could result in a dangerous infection or even death.
Abdominal hernias involving a strangulated intestine require emergency surgery. Contact your doctor or go to the emergency room immediately if the intestine becomes obstructed or strangulated.
Symptoms of a strangulated umbilical hernia include:
fever constipation severe abdominal pain and tenderness nausea and vomiting a bulging lump in the abdomen redness or other discoloration Can umbilical hernias be repaired?
In young children, umbilical hernias often heal without treatment. In adults, surgery is usually suggested to make sure that no complications develop. Before choosing surgery, doctors will normally wait until the hernia:
becomes painful is bigger than one-half inch in diameter doesn't shrink within one or two years doesn't go away by the time a child is 3 or 4 years old becomes trapped or blocks the intestines Before surgery You will need to fast before the surgery, according to the surgeon's instructions. But you likely can continue to drink clear liquids until up to three hours before surgery.
During surgery The surgery will last about an hour. The surgeon will make an incision near the belly button at the site of the bulge. Then they'll push the intestinal tissue back through the abdominal wall. In children, they'll close the opening with stitches. In adults, they'll often strengthen the abdominal wall with mesh before closing with stitches.
Recovering from surgery Usually, the surgery is a same-day procedure. Activities for the next week or so should be limited, and you shouldn't return to school or work during this time. Sponge baths are suggested until three days have passed.
The surgical tape over the incision should fall off on its own. If it doesn't, wait to have it removed at the follow-up appointment.
Surgical risks Complications are rare, but can occur. Contact your doctor if you notice the following symptoms:
infection at the wound site recurrence of the hernia headache numbness in the legs nausea/vomiting fever What is the long-term outlook for umbilical hernias?
The majority of cases in babies will resolve on their own by age 3 or 4. If you think your baby may have an umbilical hernia, speak with your pediatrician. Seek emergency care if your baby seems to be in pain or the bulge becomes very swollen or discolored. Adults with a bulge on their abdomen should also see a doctor.
Hernia repair surgery is a fairly simple and common procedure. While all surgeries have risks, most children are able to return home from an umbilical hernia surgery within a few hours. Mount Sinai Hospital recommends waiting three weeks after surgery to engage in heavy physical activity. It's unlikely that the hernia will reoccur once it's properly reduced and closed.
Umbilical Hernia Causes As in Adults In adults, umbilical hernias happen when pressure in your abdomen causes weaknesses in your abdominal wall muscles. Parts of your small intestine and related tissue can bulge through the weakened muscle.
Several factors that can increase your risk, including :
Sex people AFAB are more likely to get diagnosed with reducible umbilical hernias. However, people AMAB are more likely to have incarcerated hernias requiring immediate surgery.
Obesity . Umbilical hernias are more common in adults with a BMI greater than 30.
Multiple pregnancies - people who have given birth multiple times are at increased risk of umbilical hernias.
Fluid buildup in your abdomen (ascites)-the set is common among people with cirrhosis of the liver, who are at greater risk of developing umbilical hernias.
Previous abdominal surgeries - procedure on your abdomen that we can the muscle wall can increase your risk.
What are the complications of an umbilical hernia?
In adults especially, reducible hernias can become incarcerated. The small intestine can get stuck in the hernia, causing problems like a small bowel obstruction (a blockage in your intestine close bracket. It can also progress to strangulation which causes tissue die.
It's important for you and your provider to monitor your hernia and time treatment to prevent a serious complications.
Complications can affect children, but this is rare. In children complication rate for incarceration are as low as .07% to .3%.
What is an umbilical hernia?
Unlike most hernias, which develop in adolescence or adulthood, 20 percent of babies are born with umbilical hernias. An umbilical hernia occurs at the umbilicus (belly button) when a loop of intestine pushes through the umbilical ring, a small opening in a fetus' abdominal muscles through which the umbilical cord--which connects a fetus to its mother while in the womb--passes. Umbilical hernias occur most often in newborns, and 90 percent will naturally close by the time the child reaches 5 years of age.
Umbilical Hernia Causes After birth, the umbilical cord is no longer necessary, and the opening in the abdominal muscles closes as the baby matures. Sometimes, these muscles do not meet completely, leaving a small hole or gap. A loop of intestine can move into and even penetrate the opening between abdominal muscles and cause a hernia.
Umbilical hernias occur most often in infants but can also occur in adults. The most common causes of umbilical hernias in adults are:
Chronic health conditions that raise abdominal pressure, including:
Carrying excessive belly fluid (ascites) Chronic cough Difficulty urinating due to an enlarged prostate Prolonged constipation Repetitive vomiting Obesity Straining such as during child birth or weight lifting Umbilical Hernia Diagnosis Hernias are usually diagnosed during a physical examination by a health care provider. The provider will look and feel for a bulge or swelling in the belly button area. The swelling may be more noticeable when a baby cries and may get smaller or go away when a baby relaxes or rests on its back. During the examination, the provider will determine if the hernia is reducible--if it can be pushed back into the abdominal cavity.
The provider will also look for and complete a medical history to determine if the umbilical hernia has become incarcerated (trapped within the abdominal opening), a serious medical condition in which the protruding intestine becomes trapped and deprived of blood supply. The intestine can quickly become necrotic if not repaired, which requires surgical removal of the affected intestine. Symptoms of a strangulated umbilical hernia include:
Abdominal pain and tenderness Constipation Fever Full, round abdomen Red, purple, dark or discolored bulge Vomiting The provider may order blood tests to look for signs of infection resulting from the strangulated intestine. They may also order a barium X-ray, ultrasound, MRI or CT to examine the intestine more closely, especially if the hernia is no longer reducible.
Umbilical Hernia Treatments Specific umbilical hernia treatment and timing will be determined by the surgeon based on multiple factors such as the child's age, general health, medical history and whether the hernia is reducible or strangulated. By age 1, many umbilical hernias will have closed on their own without surgery. Nearly all umbilical hernias will have closed without surgery by age 5.
In general, if the hernia becomes bigger with age, is not reducible or is still present after age 3, the child's provider may suggest that the hernia be repaired surgically. If the hernia is strangulated and cannot gently be pushed or massaged back into its proper place within the abdomen, the surgeon will generally recommend immediate surgery.
Under general anesthesia, a small incision is made in the umbilicus (belly button). The loop of intestine is placed back into the abdominal cavity, and the incision closed. Sometimes a piece of mesh material is used to help strengthen the area where the muscles are repaired.
We did not find any ultrasonographic report. The opposite party did not show any ultrasound report meaning thereby that the opposite party without any clinical examination or pathological in commission, game local anaesthesia to the patient and put an incision near umbilicus to drain out the pus. No reason has been shown by the opposite party regarding oozing of faecal matter from umbilicus after draining out the pus. It clearly shows that there was no proper post-operative treatment present in the hospital which is very necessary for a nursing home.
Wound dressing Following surgery, keep the wound clean and dry.
The dressing should be removed and wounds covered with adhesive bandages on the first or second day after surgery.
Do not remove the paper strips or cut any of the visible sutures.
Reapply the ace wrap, if applicable, for 5-7 days to control swelling.
Wounds should be kept dry for 48 hours.
Unless otherwise instructed, the 5th day after surgery the wound may be exposed in the shower, taking care not to scrub the area.
The wound should not be submerged in a bathtub or pool until the sutures are removed.
Icing It is very important to apply ice for the first 5-7 days after surgery.
While the post-op dressing is in place, application of ice should be continuous.
Once the dressing is removed on the first or second day, ice should be applied for 20-minute periods, 3-4 times per day.
Care must be taken with ice to avoid frostbite.
Mobility Follow weight bearing instructions you were given at discharge.
Crutches or a cane may be necessary to assist walking.
Elevate the operated limb elevation for the first 72 hours to minimize swelling.
Post-surgery The anesthetic drugs used during your surgery may cause nausea for the first 24 hours.
If nausea occurs, drink only clear liquids (i.e., Sprite or 7-up).
The only solid food that should be eaten is dry crackers or toast.
If nausea and vomiting become severe or the patient shows sign of dehydration (lack of urination) please call the doctor or the surgery center.
A low-grade fever (100.5) is not uncommon in the first 24 hours, but is unusual beyond.
Please call the doctor with any temperature over 101.0 degrees.
If a spinal anesthetic was used, patients may suffer a spinal headache. Please call the surgery center should this occur and does not relieve the pain with ibuprofen or your pain medication.
You may take a baby aspirin (81 mg) daily until the sutures are removed in the office, as this may lower the risk of a blood clot developing after surgery.
Should severe pain in the affected limb or significant swelling of the joint occur, please call the doctor.
Pain medication Local anesthetics (i.e., Novocaine) are put into the incision after surgery.
It is not uncommon for patients to encounter more pain on the first or second day after surgery. This is the time when swelling peaks.
Taking pain medication before bedtime will assist in sleeping.
It is important not to drink alcoholic beverages or drive while taking narcotic medication.
If you were prescribed narcotic medication (i.e., vicodin, hydrocodone, darvocet) you can supplement those medications with 200 mg or 400 mg of ibuprofen every 4-6 hours.
You should resume your normal medications for other conditions the day after surgery.
Activities Most patients are able to drive if surgery does not involve their right leg as soon as they stop taking narcotic pain medication.
Driving while under the influence of narcotic pain medication is dangerous, illegal and greatly discouraged.
Returning to school or work also depends on the degree of postoperative pain and the demands of your job or classes.
Pain is generally a good guide as to whether you can return or not.
Follow-up The doctor will need to re-examine you in 7-10 days after surgery. Please contact us to schedule an appointment.
If unexpected problems, emergencies or other issues occur and you need to talk to the doctor, call the cartilage center's administrative assistant. After hours our answering service will route your call to a physician who will be able to advise you concerning your problem.
प्रत्यर्थी ने यह कहा कि शल्य क्रिया से उसका कोई सम्बन्ध नहीं है। उसने यह भी कहा कि परिवादी की जांच पुन: की गयी थी और बार-बार इस वाक्यांश का प्रयोग लिखित कथन में किया गया है, जिससे यह स्पष्ट होता है कि प्रत्यर्थी ने ही अपीलार्थी का परीक्षण किया था। यदि अस्पताल में कार्यरत कोई भी डॉक्टर कोई कार्य करता है, तो उसके लिए अस्पताल का दायित्व होता है, जैसा कि वाइकेरियस लायबिलिटी का सिद्धान्त कहता है।
इस मामले में प्रत्यर्थी/विपक्षी शल्य क्रिया के पश्चात् प्रदाने करने वाली देख-भाल के प्रति पूर्ण रूप से असफल रहा, जिसका तात्पर्य यह हुआ कि इस अस्पताल में चिकित्सीय सुविधाओं की कमी है। यह भी आश्चर्यजनक है कि प्रत्यर्थी/विपक्षी बीमारी को ढंग से पहचना नहीं सका। अभिकथनों और साक्ष्यों से स्पष्ट है कि विपक्षी ने लैप्रोस्कोपिक मामला होने के बाबजूद भी पेट में चीरा लगाया और फिर उसमें टांके लगा दिये। परिवादी को अम्बिलिकल हर्निया था और इसका इलाज उचित प्रकार से न करके पेट में चीरा लगा दिया और वहॉं पर टांके लगा दिये,, जिससे फीकल पदार्थ बहने लगा और इसको विपक्षी नियन्त्रित करने में पूर्ण रूप से असफल रहा क्योंकि विपक्षी के अस्पताल में आपरेशन के पश्चात् की सुविधाओं का नितान्त अभाव था। ऐसी स्थिति में इस मामले में रेस इप्सा लाक्युटर का सिद्धान्त लागू होता है।
इस प्रकार यह स्पष्ट होता है कि विद्वान जिला आयोग ने इस सब तथ्यों को ध्यान में रखा और प्रश्नगत निर्णय एवं आदेश पारित किया, जो विधि सम्मत न होने के कारण अपास्त होने योग्य है और वर्तमान अपील स्वीकार होने योग्य है।
आदेश वर्तमान अपील स्वीकार की जाती है। जिला उपभोक्ता आयोग, मैनपुरी द्वारा परिवाद सं0-97/2015 में पारित प्रश्नगत निर्णय एवं आदेश दिनांक 14-09-2016 अपास्त किया जाता है। प्रत्यर्थी/विपक्षी डॉ0 पी0के0 पाठक, पाठक हास्पिटल, कचहरी रोड, निकट डी0ए0वी0 इण्टर कालेज, मैनपुरी को आदेश दिया जाता है कि वह अपीलार्थी/परिवादी रामतीर्थ को 55,000/- रू0 और इस पर दिनांक 20-10-2014 (प्रत्यर्थी/विपक्षी के अस्पताल में भर्ती होने का दिनांक) से 12 प्रतिशत वार्षिक साधारण ब्याज इस निर्णय के 30 दिन के अन्दर अदा करे अन्यथा ब्याज की दर 15 प्रतिशत होगी जो दिनांक 20-10-2014 से वास्तविक भुगतान की तिथि तक देय होगी।
प्रत्यर्थी/विपक्षी डॉ0 पी0के0 पाठक को आदेश दिया जाता है कि वह अपीलार्थी/परिवादी को चिकित्सीय व्यय, मानसिक यन्त्रणा, अवसाद व हानि तथा वाद व्यय के मद में कुल 10.00 लाख रू0 और इस पर दिनांक 20-10-2014 (प्रत्यर्थी/विपक्षी के अस्पताल में भर्ती होने का दिनांक) से 12 प्रतिशत वार्षिक साधारण ब्याज इस निर्णय के 30 दिन के अन्दर अदा करे अन्यथा ब्याज की दर 15 प्रतिशत होगी जो दिनांक 20-10-2014 से वास्तविक भुगतान की तिथि तक देय होगी।
अपील व्यय उभय पक्ष पर।
उभय पक्ष को इस निर्णय की प्रमाणित प्रति नियमानुसार उपलब्ध करायी जाय।
वैयक्तिक सहायक से अपेक्षा की जाती है कि वह इस निर्णय को आयोग की वेबसाइट पर नियमानुसार यथाशीघ्र अपलोड कर दें।
(विकास सक्सेना) (राजेन्द्र सिंह) सदस्य सदस्य
निर्णय आज खुले न्यायालय में हस्ताक्षरित, दिनांकित होकर उद्घोषित किया गया।
(विकास सक्सेना) (राजेन्द्र सिंह) सदस्य सदस्य दिनांक : 17-01-2024. प्रमोद कुमार, वैय0सहा0ग्रेड-1, कोर्ट नं.-2. [HON'BLE MR. Rajendra Singh] PRESIDING MEMBER [HON'BLE MR. Vikas Saxena] JUDICIAL MEMBER