ALEYAMMA VARGHESE vs DEWAN BAHADUR Dr. V. VARGHESE

BOTH these complaints relate to the same matter and, therefore, O.P. 190/93 is struck off from the file as unnecessary and we are disposing of O.P. 118/of 1993 on merits.

THE complainant is the wife of Sri P.M. Varghese and mother of two children aged 6 and 2. First two deliveries of the complainant were normal. THE complainant became pregnant for the third time and she was expected to deliver a child in the month of November 1992. THE complainant did not suffer any ailments or other complications of health during the previous deliveries and has enjoyed a uniform health. In the normal course, she would have continued to be in good health for many years. The first opposite party is a private hospital established and functioning at Thiruvalla and the second opposite party is a Gynaecologist working in the first opposite party''s hospital. The first opposite party hospital rendered service for consideration. On 8.10.92 at an advanced stage of pregnancy she went and met the second opposite party for consultation and advice and on examination the second opposite party opined that the complainant seems to enjoy normal health and in all probabilities the delivery would be normal. The second opposite party advised the complainant to consult her after a few days and accordingly on 16.10.92 the complainant met the second opposite party for further examination. The second opposite party advised the complainant to get herself admitted to the first opposite party''s hospital. She also expressed her opinion that the delivery of the child would be a caesarean one. Accordingly she got herself admitted to the hospital on 16.10.92. No particular treatment was given to her at that time except for mild hypertension. She was unable to understand why she was detained to the hospital before the actual date of delivery, as when she was not experiencing any ill health or complications of health. The expected date of delivery was 4th November 1992. But the actual delivery can take place on any day 7 to 19 days before or after the expected date of delivery. The second opposite party adopted procedure for inducing labour pain in the complainant on 27th and 28th of October, 1992, which was unnecessary because the expected date of delivery was then one week ahead. On 29th October, 1992 the second opposite party insisted that the complainant should undergo caesarean operation. The complainant was reluctant and on enquiries the complainant was not given any clear answer. Her husband was not then at Dubai. On 29th October, 1992, she was subjected to caesarean operation and she delivered a child on that day itself. On 29.10.92 she was interned at the intensive care unit. On 30.10.92 the complainant was brought to the Ward. On 31.10.92 she developed a slight pain in the chest. The paramedical staff who attended on the complainant ascribed the pain as some minor problem. But the pain became intensive and on 1.11.92 she was taken to the intensive care unit when she complained of recurring pain in the abdominal region. She started developing fever and her condition became very bad and she found it difficult to breath. A message was, therefore, conveyed to her husband to the effect that the condition of the complainant is critical and on receipt of the message on 2.11.92 her husband arrived at the hospital. He had to incur an expenditure of Rs. 24,000/- as airfare alone. On arrival he found the condition of the complainant very bad. The second opposite party after operation went on leave and the complainant was attended to by Dr. Gemini, Dr. Raju P. George, Dr. Sosa and other paramedical staff in the hospital. A detailed enquiry by the complainant''s husband did not elicit any positive response from the doctors. He was told that the complainant was suffering from a condition called ''Pulmonary Embolism''. He was also told that the complainant was suffering from ''Pneumonia''. Heavy dose of antibiotics was administered to the complainant and her condition became worse during the first week of November, 1992. She was not able to eat normal food. Finding her critical condition, her husband also suffered extreme mental agony. By 5th or 6th November 1992, her condition became very serious and the doctors at the hospital were not able to give any clear answer to the queries made by her husband and they also did not make any diagnosis. At last the complainant''s husband was told by the doctors that it would be better to take the complainant to some other hospital where better facilities are available and accordingly she was discharged from the first opposite party hospital on 6.11.92 in an extremely critical condition. On the night of 6.11.92 itself she was admitted to the Lisie Hospital, Ernakulam. Tests were started on 7.11.92. Very many tests were conducted by the doctors of the Lisie Hospital. But all this time her condition was not improved and the pain in the abdominal region was persisting. She also developed fever.

The complainant alleged that it was on account of efficient treatment and service meted out by the doctors and paramedical staff at the Lisie Hospital that the complainant survived. Otherwise she would have succumbed to the callous and negligent treatment meted out to her at the Thiruvalla Medical Mission Hospital. The doctors at the Lisie Hospital were desperately trying to diagnose the cause for complainant''s condition. They had various options with them and Dr. Joseph Kurian, Chief Physician of the Lisie Hospital, instructed the patient be subjected to a C.T. Scan. A C.T. Scan of the complainant''s lower abdominal region was taken. It was found that the root cause for all the suffering which the complainant had to undergo was insertion of a foreign body, namely a surgical sponge, in the abdominal cavity. Due to the callousness and negligence on the part of the second opposite party a surgical sponge happened to be left behind in the abdominal cavity of the complainant when she was subjected to caesarean operation on 29.10.92 and the sutures were made without removing this sponge. On the night intervening 23rd and 24th November 1992, a suture made at the lower abdominal region of the complainant burst and pus started oozing out. Approximately 7.5 liters of pus was collected. On the morning of the 24th, the result of the C.T. Scan was urgently called for and it was decided by the doctors of Lisie Hospital to subject the complainant to an emergency surgery. The complainant was operated upon on 24.11.92 by Dr. Rajan Thomas and Dr. Francis. The conclusion made on the basis of C.T. Scan was found to be correct and a foreign body, namely a surgical sponge was extracted from the complainant''s lower abdominal cavity. The operation was successful and the complainant was removed to the Ward. On 9.12.92 the complainant was discharged from the Lisie Hospital with instruction to take bed rest and not to undertake any activity for 2 months. She was also asked to report after two weeks.

THE complainant had to incur heavy expenditure for the treatment at the Lisie Hospital and also for buying medicines. Her husband and her three relatives were throughout attending on her at the hospital and was constrained to rent out rooms in a lodge and this entailed great expenditure on the part of the complainant. THE agony which the husband of the complainant suffered was extreme anxiety, tension and worry on seeing the agony suffered by his wife. THE children were left without mother for a considerable period. Altogether the complainant and her husband had to entail an expenditure of more than Rs. 1,20,000/by way of the expenditure for the treatment at the Medical Mission Hospital, Thiruvalla, and the Lisie Hospital, Ernakulam, for price of the medicines, for cost of the air ticket that the complainant''s husband was compelled to purchase, for the loss of salary suffered by the complainant''s husband for a period of two months solely on account of he being summoned at a stage at which the complainant became critically ill for the expenditure incurred on account of people having to stay in Ernakulam for a period of 32 days and for expenditure incurred for servants hired to look after the children as also the complainant and other incidental expenses. All this happened due to callous negligence of the opposite parties in leaving behind a sponge in the abodomen after caesarean operation by the second opposite party and therefore in the first instance the 2nd opposite party is liable to pay compensation to the complainant. THE first opposite party is the employer of the second opposite party and therefore 1st opposite party is vicariously liable for the wrong committed by the second opposite party. Moreover, even after the injury was inflicted on 29.10.92 the other doctors and the paramedical staff at the Thiruvalla Medical Mission Hospital were not able to cure the complainant or remedy the wrong. THE complainant also alleged that she is entitled to get an amount of Rs. 1,50,000/- as non-pecuniary damages for the pain and the mental agony suffered by her and her husband for loss of consortium, for the permanent disability and for the loss of amenities in life. Another amount of Rs. 1,20,000/- is liable to be paid by the opposite parties as compensation towards the actual expenditure incurred by the complainant and her husband for her medical expenses for her treatment and other incidental expenditure during the period from 16.10.92 to 9.12.92. THE complainant sought a direction to opposite parties to pay a sum of Rs. 2,70,000/- together with an amount of Rs. 750/- being cost of Lawyer''s notice and cost of these proceedings. In the version filed by the opposite parties it was contended that the complainant is not a consumer. It was also alleged that the first opposite party is a charitable hospital constituted under a Deed of Declaration of Trust dated 22.7.1940 and the first opposite party carries on charitable work without profit and it is also registered as a Charitable Society under the Travancore Cochin Literary Scientific and Charitable Societies Registration Act, 1955. The allegation in the complaint that since the first two deliveries of the complainant were normal the third delivery also should have been normal is baseless and untenable. As the mother''s age advances, complications like increased blood pressure etc. are likely to set in and this was in fact the complication as far as the complainant is concerned. Successive pregnancies and deliveries may also cause complication in childbirth and regular antenatal check up certainly prevents complications of delivery. The complainant had her first two deliveries in some other hospital and even for her third pregnancy she was consulting some other doctors and it was in the advanced stage of pregnancy after 36 weeks and precisely on 8.10.92 that the complainant came to the first opposite party''s hospital for the first time and consulted the 2nd opposite party. The expected date of delivery was 4.11.92 and the complainant had then informed the opposite parties that her first child was born six years before and the second child two years before. After necessary check up the complainant was asked by the second opposite party to come again for further check up after a week and the complainant accordingly came to the hospital on 16.10.92. Since the complainant had made only two ante-natal visits to the opposite parties it was not possible to say whether the complainant''s blood pressure was normal prior to attending the opposite parties ante-natal clinic. The blood pressure then noted was 140/90 especially the blood pressure during pregnancy is 100-130/9080. It is in those circumstances the complainant was directed to get herself admitted to the first opposite party hospital at the time of her second visit on 16.10.92.

THE allegation in paragraph 4 of the complaint that the second opposite party expressed opinion that the delivery of the child might be a caesarean is not correct and is denied. A caesarean operation would be advised or done only if there was no possibility of a normal delivery. THE remedy for pregnant patients with high blood pressure at an advanced stage of pregnancy is to deliver the patient early since high blood pressure could be dangerous for both the mother and the child. THE complainant was, therefore, induced for delivery on 22.10.92 with syntocinon. In this condition a pregnancy induced hypertension patient will not have any symptoms. This is a disease of signs and if the patient is not made to deliver early, both the mother and the child are likely to have complications. THE mother may develop convulsions and the foetus may die introuterine. Hence owing to this high blood pressure the complainant was induced on 22nd and 28th October, 1992, but since she still did not have any labour pain and since in the meantime she developed albumin in the urine which is a sign of severe pregnancy induced hypertension (PIH) it was decided to do a caesarean operation on 29.10.92 in the best interest of the complainant. In fact the complainant was informed about this and the operation was also fully explained to the complainant before doing the caesarean. THE allegation that the complainant was not given any clear answer is patently false and is denied. Caesarean operation was accordingly done and the baby was taken out of the uterus after which the abdomen was closed and sutured up. THE sponges and instruments are always counted prior to and after the surgery. THE count was confirmed as correct by the nurse who had scrubbed for the surgery and it was also recorded in the operation theatre. In the first opposite party hospital all patients are sent to the intensive care unit for post operative care since there is no separate recovery room. In the case of the complainant on the 3rd post operative day she had dysponges and tachycardia for which she was seen by the physician and a provisional diagnosis of ''pulmonary embolism'' was made. THE complainant was well looked after by the Gynaecologist and the physician of the Hospital, Dr. Raju. P. George, Dr. Gemini and Dr. Sosa who are all consultants of the first opposite party''s Hospital, the first being a physician and the other two consultant in the Department of Gynaecology. THE allegation that the complainant was looked after only by the paramedical staff was baseless and incorrect and was denied. THE allegation that the husband of the complainant was not given any clear indication regarding condition and diagnosis of the complainant is not correct. THE condition was clearly explained to him and that she was improving with antibiotics. THE sutures were removed on the 8th post-operative day by which time the wound had healed well and there was no discharge. On the 9th post-operative day at the request of the complainant she was discharged from the first opposite party hospital. At the time of discharge she was having normal food. She was fully conscious and aware of everything. THE complainant only insisted on going to Lisie Hospital, Ernakulam and on the same day she went there and got admitted. The allegation that she was told at the first opposite party hospital that she required prolonged treatment was false and denied. The allegation that the complainant was in a serious condition was also denied. She was not in any sort of serious condition or in any discomfort to undertake journey from Thiruvalla to Ernakulam. The allegation that the treatment at the hospital was extremely perfunctory was denied and such allegations are mere figments of the complainant''s imagination. It was also denied that the opposite parties were negligent. Proper and timely medical attention were given and the opposite parties had given all possible treatment according to accepted medical practice and ethics. The second opposite party was very able and efficient obstetrician having about 25 years'' experience in the field. The opposite parties have not committed any wrong to the complainant and there was no defect or deficiency in service. The complainant has not suffered any mental suffering of agony. The opposite parties have not committed any tortuous act. It was also alleged that the opposite parties are covered by a valid insurance with M/s. United India Insurance Co. Ltd., Branch Office, 2nd Floor, VII/4440, Doctors Tower, Changanacherry, under Insurance Policy No. 592 Tr. Code II Dept. Code 46 of the year 1992 and if at all any amount is found payable to the complainant it has to be recovered from the said Insurance Company. Ultimately it was contended that there is no merit in the complaint and it is liable to be dismissed. On the basis of the averments contained in the version that the opposite parties are covered by Insurance Policy, the third opposite party was implicated.

THE third opposite party filed a version stating that the complaint was not maintainable and a direction may be given to the complainant to approach a Civil Court. It was also averred that there was no cause of action against the additional third opposite party as there is no consumer relationship between the additional third opposite party and the complainant. It was also contended that they were impleaded at a very late stage. As per Clause 10(1) professional negligence insurance policy the insured shall give written notice to the insurer as soon as any claim is made against the insured. THE insured has violated the above mandatory provision and therefore the third opposite party is not liable to pay any compensation. THEre is no cause of action for the complainant against the opposite parties 1 and 2. THEre is no defect, deficiency or shortcoming in the services rendered by opposite parties 1 and 2. It was in the best interest of the complainant that caesarean operation was conducted and the fact was really explained to the complainant before conducting operation. THE operation was done and the baby was taken out of the uterus after which the abdomen was closed and sutured up. THE instruments and sponges were counted and the correctness was confirmed and recorded. THE allegations of the complainant to the contrary are not correct. THE other allegations contained in the complaint were also denied. THE complainant should be put to strict proof of the allegations made in the complaint.

I.A. No. 363/95 was filed by the Counsel for the complainant praying that Commission may be appointed for examining PW 2 for and on behalf of the complainant along with an affidavit. On behalf of the complainant, the complainant''s husband was examined as PW 1 and Exts. P1 to P10 were marked. In addition to this Dr. Rajan Thomas, the Head of the Department of Surgery, Lisie Hospital, was examined on behalf of the complainant as PW 2. On behalf of the respondent RW 1, the second opposite party, was examined and Exts. R1 to R5 were marked.

The following points arise for consideration: (i) Whether the complainant is a consumer? (ii) Whether there is any deficiency or defect in the service rendered by the opposite parties? (iii) Whether the complainant is entitled to any relief? (iv) Whether the 3rd opposite party is liable to indemnify as insurer? (v) What is the order as to the cost ?

THE first question to be considered is whether the complainant is a consumer. In the version filed by the opposite party they have contended that the Thiruvalla Medical Mission Hospital is a charitable institution and was run under a trust deed and to substantiate that Exbts. R2, R3 and R4 were relied on. However, we find from Exbts. P1(a) to P1(g) series that the treatment was done for consideration. In the circumstances it cannot be said that service was rendered free of charge. THErefore the complainant is a consumer It is contended in the version filed by the third opposite-party, the Insurance Company, that large volume of evidence is required and the matter can be properly decided only by a Civil Court. We are unable to accept this contention as we find that no such volume of evidence is required in the matter. We answer this point also in favour of the complainant.

POINT Nos. 2 & 3-PW 1 the husband of the complainant gave evidence is terms of the complaint. He stated that he was employed in Dubai. He deposed that his wife, was admitted to the first opposite party hospital on 16.10.1992 for third delivery. He also stated that first two deliveries were normal. On 29.10.92 a caesarean operation was conducted and the condition of his wife became very serious. She had pain in the abdomen and also fever. She was admitted to the Intensive Care Unit. He was informed of the serious and critical condition of the complainant by a message and therefore he came to the hospital. The second opposite party was not in the hospital and she had gone to Angola. The doctors at Thiruvalla Hospital told him that she was suffering from pulmonary embolism and pneumonia. She had fever and pain in the abdomen and she was given antibiotics. Many injections were given and the patient was mentally broken and she told him that she may be taken to some other hospital. He was by the side of the patient from 2nd to 6th. She was admitted to the Lisie Hospital. In the referal letter it was stated that the complainant was treated for septicemia, pulmonary embolism, plural effusion, fever, stomach-pain etc. The doctors at the Lisie Hospital conducted several tests and fluid was taken from the chest and it was subjected to test at the Cancer Centre and it was found normal. Therefore abdominal fluid was taken and it was also tested and it was found that it contained pus. Dr. Joseph Kurian advised to take a C.T. Scan and accordingly CT Scan was taken. From the front portion where the caesarean operation was done pus of 3 litres came out. The CT Scan report revealed that there was sponge in the abdomen and there was infection around it. In the CT Scan report and Discharge Certificate this has been mentioned. On 24th the complainant was again subjected to an operation and the sponge was taken out. He further stated that it is on account of callous negligence and deficiency of the opposite parties that the complainant suffered all the complications and had to incur huge expenditure and the complainant and witness had to suffer great mental agony. In Ext. X-1, case sheet, mention has been made regarding the foreign body, which was removed by operation at the Lisie Hospital. The complainant is therefore entitled to get compensation of Rs. 2,70,000/-. He further stated that she had loss of memory and she was not able to nurse the children and he had to remain there and lost his job in the Gulf. Exts. P1(a) to P1(g) 21 Nos. are the bills and tickets issued from the Thiruvalla Medical Mission Hospital and Ext. P2 is the discharge summary. Exts. P3(a) to Ext. P3(r) are the OP tickets, bills, prescriptions (51 Nos.) issued from the Lisie Hospital. Expt. P4 is the receipt issued from the Regional Cancer Centre and Ext. P5 is the bill for Rs. 3,000/- for the CT Scan and Ext. P6 is the CT Scan report and Ext. P7 is the discharge summary, Ext. P8 is the job termination certificate issued from Gulf, Ext. P8(b) is the Boarding Pass issued from Gulf flight and Ext. 9 is the copy of the Suit Notice and Ext. P10 is the expenditure statement. He has not claimed any compensation for loss of employment. In the cross-examination it was suggested that the patient was admitted to the hospital on 16.10.92 due to blood pressure. The witness replied that complainant had blood pressure which a normal pregnant would have and he does not know what exactly was the position of the pressure. He also stated that the discharge certificate issued from the Thiruvalla Medical Mission Hospital revealed that the complainant was induced for delivery. He admitted the question whether a caesarean operation is necessary has to be decided by the doctor. After the operation, the complainant lost consciousness and she was taken to Lisie Hospital in Ambulance in a stretcher. She was not able to walk. He did not see the foreign body and he came to know about it from the doctors. At the time of discharge from the Lisie Hospital, she was very week and she was given medicines for pain. She has memory lapse and mental shock. He further stated that these complications might be due to administration of antibiotics. After loss of job he spent without any job for some time and thereafter he got another job. Ext. P 8(a) does not give any reason for termination of his employment. He has produced bills relating to expenditure and apart from those bills there were no documents to support Ext. P10 statement. Dr. Rajan Thomas, Head of the Department of Surgery, Lisie Hospital, was examined through Advocate Commissioner. In his evidence he stated that he has passed out from Kasturba Medical College, Mangalore and F.R.C.S. from Glasgow and he had nearly 21 years of experience after M.B.B.S. Ext. X-1 series is the case sheet of the Lisie Hospital and Ext. X2 is the continuation chart and Ext. 3 is the scan report and 9 C.T. scan films. To a question whether on looking into the case-sheet can he tell when the patient was admitted to the Lisie Hospital he answered that she was admitted on 7.11.92 at 7.05 p.m. and the case sheet contains brief narration of the treatment, diagnosis and surgery done at the Lisie Hospital. He saw the patient only on 17.11.92 at 7.15 p.m. and before that as written in the case history, the patient underwent Lower Segment Caesarean Section on 29.10.92 at Medical Mission Hospital, Thiruvalla. It is also written in the chart that the patient developed breathlessness and right side chest pain on 31.10.92 and the patient was treated for pulmonary embolism. Since 4th day, the patient developed mild breathlessness, cough with copius amounts of sputum and was found to have bilateral plural effusion on chest. At 11.30 a.m. they got the C.T. Scan Report. It is written in the chart CT impression, foreign body abscess. Immediately after getting the report he posted the case for exploration of the wound. Patient was brought to the theatre. General Anaesthesia was given by Dr. Joshi, M.D. Case was assisted by Dr. Joseph Francis, Secior Lea, theatre in-charge and staff nurse Dily. Previous scar was opened, collection of pus in the pelvis, was found and a large sponge was removed from lower abdomen. He informed the Medical Superintendent and specimen sent to the Pathology Lab. Patient did well post-operatively and was discharged. Ext. P 2 was shown to the doctor and he was asked to explain what does it mean. He replied septiceamia had already developed. It is stated that the patient got an infection in the blood. If it was a localised collection it could have been possible to control with conservative management but this was not such a case. To a question had a second surgery not been done and the foreign body was not removed what would have been the consequences he answered that foreign body abscess and many of the complications associated with retained foreign body would be consequence. He treated the patient with full care and caution on surgical side. In the course of cross-examination, PW 2, stated that the complainant was conscious at the time of examination and was co-operative to examinations. He also stated that for the first 10 days the patient was in the Medical Department and he cannot say anything about the treatment there. In answer to another question, he answered it was not a guage piece, but a large sponge made of cotton and the exact dimension is not recorded. It was sent to Pathology Laboratory. He further stated that the count was taken by the two scrub nurses and floor nurse and only after they confirmed abdomen was closed. To a question about the condition of the patient on the date of discharge he replied that her general condition must have been Okay and if there was any abnormality they would have recorded it. He also stated that the patient had not come back for review after the discharge.

RW 1 stated that she is the Chief Gynaecologist at the first opposite party hospital since 1947 and she had M.B.B.S. Degree from Punjab University and DGO from Madras University and DFP from College of Physicians and Surgeons, Bombay. She stated that she saw the complainant on 8th October, 1992 in the O.P. Department. She came with advance pregnancy. It was her 3rd pregnancy. She did not find anything abnormal and she was advised to come after one week. On 16th of October she came and she was examined and she was found to have BP and swelling of the foot. In pregnant women 80 should be the upper limit of diabolic pressure. In her case it was 140/90. Since she had got the condition called pregnancy induced hypertension, she was admitted to the hospital and treatment was started. BP was raised and if it remained so in spite of treatment it was harmful to the baby as well as to the mother. As the mother was likely to get ecclemptic convulsion (fits) it may result to intra utrine death of the baby. In the circumstances they decided to induce labour. On 22nd October they attempted induction but it failed and therefore to save the mother and child they decided to have a caesarean section and it was done on 29th October. The baby was taken in good condition. She was normal and baby was healthy. For a caesarean operation they need minimum of 2 qualified nurses, a scrub nurse and a second floor nurse. The scrub nurse along with us surgeons wears sterilised gowns and gloves and the scrub nurse sets the trolley with instruments sponges, swab and needles. Before starting surgery the scrub nurse counts each item and the floor nurse records in a book, the number. of each item. Then only they start surgery. They opened the abdomen and uterus, took the baby out, blood clots and amniotic fluid were all cleaned off and uterus was closed and on either side of the uterus organs are inspected for any abnormality. Outside of the uterus was also cleaned and they waited for the scrub nurse to count the instruments, sponges, swabs and needles. It was checked and confirmed correct and recorded in the same book. Then only they closed the abdomen. This is the routine procedure and in the instant case also such procedure was adopted as can be seen from Ext. Rl. She also stated that she exercised due care and caution during the surgery to the utmost of her knowledge and experience. After surgery the patient was shifted to intensive care unit. She did well on the first day. On the 30th morning she examined her and shifted her to the ward. On 31st morning she developed some chest pain and difficulty in breathing and she was transferred to intensive care unit and a medical consultation with their physicians Dr. Raju P. George was done. After investigating, the diagnosis of pulmonary embolism was done and adequate treatment was instituted. She became better and on the 3rd November she was transferred back to the ward. But on the 3rd night she felt uncomfortable feeling on the chest and she was transferred back to intensive care unit and she was monitored there. On 4th and 5th she was comfortable and on 6th they removed the stitches. Union of the wound was good. But she had cough with expectoration. She was kept in the intensive care unit itself. On the 7th morning her husband wanted to take her to Lisie Hospital, Ernakulam. Though they insisted that she needs ultra sonography, her husband refused to investigate and took the patient to Lisie Hospital on 7th day by their van. On 29th was the surgery. On 30th night she went to Karnataka to see her brother who was seriously sick. She returned on 3rd November and she was attending on her afterwards. During her absence her colleagues and other qualified gynaecologists Dr. Gemini and Dr. Shosha were looking after her. At the time of discharge on 7th she was well except slight cough. It was not correct to say that her husband advised to take the patient to some other hospital. She enquired about the patient after the discharge. On 26th of November she was well and walking around. She saw her in her house also. There were good response from her and she offered coffee. She did not find any abnormality and she was looking after her children and after that she was seeing her in the Court only. She found she was put on some weight. Otherwise she was normal. She proved Exts. R2, R3, R4 and R5 testified that Thiruvalla Medical Mission Hospital is a charitable institution.

IN the cross-examination by the Counsel for complainant she stated that it was a case of elective caesarean. To a question that in the version filed she has not stated the name of the scrub nurse and the number of swabs and instruments used for surgery she admitted that was not stated. She also stated that the normal practice of counting the swabs and instruments used for surgery was followed in the instant case also. She stated that nurses would count and recount after surgery. She further stated that the complainant husband told her about the surgery conducted at the Lisie Hospital. Her friends at the Lisie Hospital said they removed a surgical sponge and she cannot say anything more about that. On 7th she was discharged and taken to Lisie Hospital. IN her absence from 30th to 3rd of November she did not know what happened to the complainant and she had no direct knowledge. She stated that they worked as a team and in one''s absence the others look after the patient and they report when she came back as to what happened during her absence. She admitted that they diagnosed her ailment as pulmonary embolism, plural effusion, technycardia and scepticemia. She stated that pulmonary embolism is a condition where bits of close dilodge from where it occurred and enter into pulmonary circulation and clinically characterised by technycardia, chest pain and little bit of plural effusion. To a question on what date did the scepticemia develop she stated on 31st. IN the case sheet the cause for scepticemia is not mentioned. She denied the suggestion that the patient was taken to Lisie Hospital on their advice. Pulmonary embolism is having high mortality rate. Scepticemia does not have that much mortality because of the modem powerful antibiotics. IN the referal letter to the Lisie Hospital she has stated that complainant had pulmonary embolism, plura, effusion and scepticemia. She was asked the question whether a large piece of Surgical sponge was removed from the abdominal cavity of the patient through a surgery and this surgical sponge was left by her at the time of caesarean operation, she replied that she had nothing to say except that she had taken all precautions. To a question whether she meant to say her scrub nurse committed a mistake in the count, she replied that she has nothing to say. To a suggestion that because of her negligence and the negligence of the staff of Thiruvalla Medical Mission Hospital that the swab was left behind after operation leading to the complications in the patient she replied that she had taken all precautions. IN the re-examination she stated that Ext. R 1 contains the name of the doctors and nurses of Thiruvalla Medical Mission Hospital. The crucial question to be considered is whether there is any negligence on the part of the opposite parties in leaving behind a large sponge before closing abdomen after caesarean operation. That a large sponge was left behind cannot be disputed as it is proved beyond doubt by the evidence of PW 2 Doctor Rajan Thomas, the Head of the Department of Surgery, Lisie Hospital, and also from the CT Scan Report evidenced by Ext. P6 and also Ext. P7 discharge summary. Though RW 1 stated that it was the normal practice to count the instruments and sponges before the abdomen was closed after the operation and such procedure was followed in this case also we are unable to accept that part of evidence as it is established beyond doubt in the instant case that there was foreign body namely a large sponge in the abdomen and that led to all complications which could not be diagnosed by the doctors at the first opposite party hospital. There was no attempt for taking CT Scan of the abdomen. Normally the counting is done by the nursing staff and the doctors cannot be expected to do that and therefore we cannot say that there is any negligence on the part of the doctors in failing to count the sponges. Both by Dr. Rajan Thomas, the Head of the Surgery of the Lisie Hospital and also RW 1 have deposed that the counting was done by the scrub nurse. In the circumstances we can only hold that there is negligence on part of scrub nurse in counting the sponges, which led to the complications. We have therefore no hesitation to hold that the first opposite party as employer is vicariously liable to compensate the complainant for all the loss suffering and complications sustained by the patient.

We are unable to find any deficiency on the part of the second opposite party in conducting caesarean operation. It is established that the patient had abnormal B.P. and the evidence of RW 1 shows that pregnancy was induced and on failure they decided to have a caesarean operation as they found otherwise it may cause danger to the mother as well as the child. The evidence clearly indicates that the case was one which warranted a caesarean section and we are unable to see any deficiency on the part of the 2nd opposite party in her judgment to do caesarean operation or in conducting caesarean operation. We, therefore, hold that 2nd opposite party is not liable to pay any compensation.

THE next question to be considered is what is the relief to which the complainant is entitled. In our view the caesarean operation was necessary. THE expenditure incurred in connection therewith cannot be said to be one expended as a result of the negligence of the opposite parties. However the subsequent expenditure has to be considered as unnecessary expenditure incurred because of the negligence on the part of the hospital staff in leaving behind a large sponge. The next question to be considered is what is the relief to which the complainant is entitled. The complainant had to undergo another operation at Lisie Hospital and had to suffer physical strain and mental agony as a result of the negligence and deficiency. We, therefore, award Rs. 40,000/on this count.

THE other items of compensation claimed are contained in Exbt. P10 statement furnished by the complainant. THE first item is an expenditure of Rs. 10,185/- at Thiruvalla Medical Mission as per bill No. 7824. It is supported by Exbt. P1(d). However we find a part of expenditure related to the period before the caesarean operation. We find it difficult to separate from the total bill the expenditure incurred after surgery. After discussion, we thought that it would be reasonable to estimate approximately half of its as expenditure incurred as result of complications arising from the negligence in leaving behind a large sponge in the abdomen. We, therefore, estimate it at Rs. 5,000/-. THE second item related to expenditure prior to surgery and we do not think that the complainant is entitled to get this amount as such expenditure was necessary. THE 3rd item related to the expenditure incurred after surgery and the complainant is entitled to that amount viz. Rs. 1,441.05. That expenditure is covered by P1(f) to (g). THEre is no evidence to support the claim contained in item 4 and therefore we reject that claim. Part of expenditure contained in item No. 5 related to the period prior to surgery at opposite parties hospital. We fix the expenditure incurred after surgery at Rs. 2,000/- and the complainant is entitled to this amount. Travelling expense claimed is Rs. 2,000/- but after discussion we thought that it would be fair and reasonable to award an amount of Rs. 1,000/- on this count. Items 7, 8 and 9 are all expenditures supported by the bills produced. All this expenditure was incurred at the Lisie Hospital therefore and the complainant is entitled to get Rs. 16,225/- on this count. Item No. 10 related to room rent of Rs. 1,980/- But after discussion we feel that it would be reasonable to fix the compensation on this count at Rs. 1,000/-. We also feel that it would be reasonable to fix Rs. 3,000/- in regard to expenditure claimed as item 11. Regarding item No. 12 also we feel it would be fair to fix at Rs. 1,000/- and complainant is entitled to this amount. Though the complainant has claimed Rs. 5,000/- towards telephone charges etc., we feel that it would be reasonable to allow only Rs. 500/- on this count. We do not find any ground to award compensation on the ground that the husband of the complainant lost his salary for 2 months. We have no acceptable evidence to show that the complainant lost his salary for two months. However we are inclined to allow the travel expense incurred by him as he had to rush to the hospital from Gulf as the condition of the complainant became very serious. We allow a compensation of Rs. 24,240/- on this count. THEre is no evidence regarding other expenditures. THE complainant also will be entitled in addition to these amounts a sum out Rs. 4,000/- towards costs which included remuneration of Rs. 3,000/- paid to the Commissioner. Thus the total amount payable comes to Rs. 98,506/-. It has come out that the first opposite party has insured with the 3rd opposite party. Though in the version the third opposite party has raised a contention that intimation of the claim was given late, and therefore, they have no liability no evidence was adduced to substantiate this contention. In the circumstances the 3rd opposite party is liable to pay Rs. 98,506/- to the complainant together with interest at the rate of 12% from the date of petition. This amount will be paid within one month. THE O.P. is disposed of as above. O.Ps. disposed of.