Dakshabencomplainant vs Yoginiben N Patel

BY way of this complaint, the complainant has prayed for compensation in the sum of Rs. 10,00,000/ - and cost of the complaint on following brief allegations of facts.

THE complainant belonged to Nadiad but was given in marriage to one Mr. Hasmukh Modi of Adipur, Kachchh and she was staying with her husband at Adipur. Her husband has been engaged in the business of running a Government approved fair price shop. At the age of 40 years, she had three daughters -Dipa, Trusha and Mayuri. She once again became pregnant and went to her parental home at Nadiad. She consulted opponent doctor for the purpose of delivery. Ultimately she was admitted to opponents hospital on 28.10.1994. The opponent advised for caesarean operation, as, according to her, normal delivery was not possible. She was accordingly operated on 31.10.1994 and she gave birth to a baby girl. She had abdominal pain after delivery. As the pain increased she informed the opponent doctor who diagnosed excess fat resulting into pain in abdomen. She informed the complainant that by passage of time her pain would subside. Ultimately, on 23.12.1994, her husband had taken her to Adipur. However, her ailment in abdomen continued and her health went on deteriorating. She, therefore, consulted Dr. Paruben Raiyani of Gandhidham. As per her advice, blood, urine, sonography and other tests were carried out. The said doctor informed that some foreign body was left out in the abdomen and it would be necessary to open her abdomen. Dr. Joshi of Gandhidham was also consulted in that respect. On 6.1.1995 she was taken up for operation by surgeon Dr. Joshi of Gandhidham and Dr. Raiyani, Gynaecologist and during the course of operation it was found that there was a swab [piece of napkin like cloth of white colour]. Complainants husband took permission of the doctors to call a photographer to take photographs and photographs were taken about foreign body having been found. It has, therefore, been alleged that on account of medical negligence and deficiency in rendition of medical service on the part of the opponent doctor in performing caesarean operation on 31.10.1994, the swab was left inside the abdomen and that continued to remain there for a period of around 2 ¼ months resulting into abscess in the intestine and other parts of the abdomen. As required instruments and facilities were not available with the aforesaid Surgeon Dr. Joshi and Dr. Raiyani, complainant was discharged from her hospital on 11.1.1995 and she was taken in ambulance to Irwin Hospital at Jamnagar (Civil Hospital, Jamnagar). Number of tests were performed there and ultimately Dr. Dodiya of said hospital performed two operations on 20.1.1995 and 7.3.1995 for repairing the perforated intestines. The treatment there continued for around three months. Her husband and children had also to stay at Jamnagar during the course of such treatment. It has, therefore, been alleged that the complainant had sustained a great deal of pain, shock and suffering on account of medical negligence as aforesaid on the part of the opponent doctor. She had to incur huge amount of expenditure for medicines, injections and other requirements. She became very weak and found it very difficult to attend to her four daughters and her husband. Her husband had to close his shop for the aforesaid period and he also suffered business loss. Inhabitants of the town faced great deal of trouble on account of closure of the shop of her husband and that was published in Sandesh newspaper of 10.1.1995. She has been rendered disabled like a living dead. Under such circumstances, she has prayed for compensation as stated above.

THE opponent doctor has filed her written statement at Exh. 14, coupled with her affidavit. While denying the allegations contained in the complaint, she asserted that she treated the complainant with fair and reasonable standard and competence expected of a doctor of her class and there was no deficiency in service on her part in the matter of performance of the operation in question. She is an experienced gynaecologist having worked in United Kingdom in Obstetrics/Gynaecology from 1979 to 1986. She has passed MRCOG (London) and holds a prestigious degree. She started her hospital at Nadiad in 1987. According to the opponent, the complainant was admitted in her hospital on 30.10.1994. Caesarean section operation was advised and performed under spinal anaesthesia on 31.10.1994 as the complainant was suffering from severe bronchitis. A female baby was delivered and condition of both mother and the child was normal. The stitches were removed on 7.11.1994 and the operation scars also stood healed. Urine output was also satisfactory. The complainant was discharged from hospital from 7.1.1994. She consulted the opponent doctor on 1.12.1994 for routine checkup with complaint of diarrhoea and vomiting. On examination it was noticed that her abdomen was soft, uterus normal and cervical closed. The complainant informed her that she consulted Dr. Trivedi and X -ray, abdomen scan, blood and urine tests were carried out and they were normal. Opponent doctor prescribed medicines for diarrhoea and instructed her to get herself consulted again if there was no relief by the prescribed medicines. The complainant however never consulted the opponent thereafter. On 15.2.1995 she was served with notice by Anjar Taluka Grahak Suraksha Mandal, Adipur. She gave reply on 16.3.1995. Thus, according to her there was no deficiency in service on her part. The opponent doctor has denied rest of the allegations made by the complainant including the allegation with regard to quantum of compensation generally stated in the sum of Rs. 10,00,000/ -. The complaint is, therefore, sought to be dismissed with cost.

THE parties have been cross -examined by respective advocates. Dr. Paruben Raiyani and Dr. Vijaysinh Dodiya, M.S., General Surgeon who rendered his service in Jamnagar Irwin Hospital during 1984 -99 have been examined as witnesses. Copies of relevant case papers have been placed on record. The photographer who had an occasion to take photographs when the complainant was operated for removal of swab by Dr. Raiyani has also been examined to prove the photographs. The learned Advocates for the parties have made their submissions. The matter was kept pending for the complainants learned Advocate to produce the sonography report in order to further support the case of the complainant. After having taken number of adjournments for the said purpose the learned Advocate for the complainant would submit a pursis that his client was not able to trace out the said report which must have been lost in the earthquake of 2001 and under such circumstances this matter is taken up for judgment. We have considered the pleadings of the parties, their oral evidence and evidence of the witnesses and material placed on record including the photographs. We have also taken into consideration the decisions cited by the learned Advocates for the parties. Broad facts of the complainants case insofar as performance of caesarean section operation by the opponent doctor are not in dispute. Although the date for complainants admission to opponents hospital on 28.10.1994 is disputed, nothing turns on that as admittedly she was admitted for her delivery in the opponents hospital on 30.10.1994. We also propose to take up this date as asserted by the opponent doctor. It is not in dispute that the caesarean section operation was performed on 31.10.1994. Although the complainant made complaint of abdominal pain even after she was discharged from the hospital of opponent doctor, she admitted in her cross -examination that she did not have any other complaint except complaint of diarrhoea and vomiting. She also admitted in her cross -examination that she consulted Dr. Trivedi before she once again consulted the opponent doctor for her complaint of diarrhoea and vomiting. Except once she did not have any further occasion to consult opponent doctor for her continuing complaint of diarrhoea and vomiting. She then had the occasion to join her husband at Adipur. These are in short more or less admitted facts with regard to the performance of operation of caesarean section by the opponent doctor and subsequent complaint of diarrhoea and vomiting on the part of the patient.

BEFORE we take up the episode with regard to performance of operation for removal of the swab/mop by Dr. Paruben Raiyani, it has to be noted that the complainant had an occasion to consult Dr. Trivedi who appears to be a Surgeon practising at Nadiad. This fact was made known to the opponent as can be seen from the facts set out hereinabove. It would further appear in the cross -examination of the complainant that she had gone to consult Dr. Trivedi but not for getting sonography done at the said doctors nursing home. As against this statement made by the complainant in her cross -examination, Dr. Paruben has admitted in her cross -examination Exh. 18 that she had an occasion to see the sonography reports which were taken subsequent to the operation performed by the opponent doctor. The patient informed her that when she suffered from diarrhoea, she consulted one Surgeon and she had taken treatment from him. The patient also informed her that sonography was also done on that occasion. However, Dr. Paruben did not make any note of these facts in her case papers, as ordinarily, the reports would remain with the patient. She, however, went for fresh sonography of the patient. She stated in her further cross -examination that according to her recollection, there was no specific mention about appearance of foreign body in the sonography report of Nadiad but the report was not normal and it appeared to be quite different from being a normal report. However, in the sonography which was done at her instance it clearly appeared that there was a foreign body in the abdomen of the patient and such a note was made in her case papers. The decision for fresh sonography was taken as the sonography which was done at Nadiad was not satisfactory. She did not have the occasion to see the sonography report of Gandhidham but she had an occasion to go personally and discuss the matter with the concerned doctor. In the background of such facts, it has been submitted on behalf of the opponent doctor that the sonography report which was taken at Nadiad either at the instance of Dr. Trivedi or at the instance of any other doctor at Nadiad would be a very important document to find out whether there was any foreign body left out in the abdomen of the complainant at the time of the operation performed by the opponent doctor. In our considered opinion, this argument will have gone through provided the complainant did not have any other evidence to support her case. In the present case, the complainant has produced further evidence to support her case and that is in the form of case papers with regard to 2nd operation performed by Dr. Paruben Raiyani, the photographs taken by the photographer at the time of said operation, oral evidence of Dr. Paruben Raiyani and oral evidence of Dr. Vijaysinh Dodiya Ex. 26. We take ourselves to consider all such evidence a little later. What is important to be noticed from the facts thus far noted is that there was no occasion for the complainant for being operated at Nadiad for the 2nd time. In fact, such is not the case of the opponent doctor. She knew very well that the complainant had occasion to consult Dr. Trivedi, a Surgeon practising at Nadiad on account of her ailment of diarrhoea and vomiting. It is true that after waiting for such a considerable long time, the complainant has not been able to trace out and produce the sonography reports she had with her as per the pursis dated 27.4.2005. That does not make any difference in the broad factual aspects of the present case. It has to be noted here that the opponent doctor had ample opportunity to find out the truthfulness or otherwise of the complainants grievance right from the time she received notice from the complainant -not once, but on two occasions. It is not the case of the opponent doctor that she has any enmity with Dr. Raiyani or Dr. Vijaysinh Dodiya. Besides, Dr. Trivedi of Nadiad had been quite easily available to the opponent for finding out truthfulness or otherwise of the patients complaint. Under such circumstances, the evidence which has been adduced by the complainant will have to be accepted although subject to scrutiny thereof.

IT has consistently been the case of the complainant that her ailment with regard to diarrhoea and vomiting did not subside and she needed to consult Dr. Paruben Raiyani. She also had mild abdominal pain. She filed the present complaint and annexed therewith the affidavit filed by Dr. Paruben Raiyani. Thus, the opponent had notice with regard to what transpired at the hospital of Dr. Paruben Raiyani when the complainant was required to submit herself for treatment by the said doctor. Dr. Paruben Raiyani is a Gynaecologist practising at Gandhidham. The complainant approached her on 26.12.1994. On clinical examination she found that the stitches of the operation performed on her stood exposed there was huge amount of pus in the wound which was severely foul smelling. Dr. Raiyani advised her to go for ultrasonography and after such examination it could be noticed that there was foreign body inside the abdomen of the complainant. She, therefore, put the patient on higher antibiotics for a period of around 7 to 8 days and tried to drain out the pus. However, since the formation of pus could not be controlled and the pus formation level started rising, she consulted Dr. Y.B. Joshi, a Surgeon and assisted by said Surgeon, she had the occasion to operate the complainant on 6.1.1995. Upon opening of the adbomen a napkin size mop/swab was found. It was of greenish colour. It was severely foul smelling. She also found that there was adhesion of other intestines. The mop was removed, pus was drained out and the hole in the large intestine was sutured. However, Dr. Raiyani and the Surgeon assisting her could not separate the adhesions. The abdomen was closed. As the condition of the patient was not good, she was required to be shifted to Jamnagar Irwin Hospital which had better equipments and facilities for the purpose of required operation to separate the adhesions of the intestines. This is what Dr. Raiyani said in her affidavit. The opponent doctor has not made any comments with regard to this affidavit in her written statement. She has merely denied the allegations of facts. Even in the cross -examination of Dr. Paruben Raiyani appearing at Exh. 18, nothing could be brought out except with regard to the complainant having consulted Dr. Trivedi at Nadiad which part of the cross -examination has been dealt with hereinabove. In her cross -examination, she has in terms stated that when the patient was operated Anaesthetist Mrs. Punjabi, General Surgeon Dr. Y.B. Joshi and two nurses were present. It was suggested in her cross -examination that the patient was required to be transferred to Irwin Hospital, Jamnagar on account of complication having arisen in the operation performed by her (Dr. Raiyani). But Dr. Raiyani denied such a suggestion. In reply to the question put up by the Commission, she explained that the patient was not immediately operated and treated for some period as she had only 5% mg. of haemoglobin and as the patient needed higher antibiotics. In reply to the question put up by this Commission, she also explained that she did not have sufficient facilities for performing the aforesaid operation on the patient and in the interest of the patient, she was advised to be taken to some institution (hospital) (where there would be required facilities). In our considered opinion, evidence of Dr. Raiyani clearly supports the case of the complainant that subsequent to the caesarean section operation performed by the opponent doctor, she had ailment of diarrhoea and vomiting. She also had mild abdominal pain. She was required to be consulted by Dr. Raiyani, Dr. Raiyani had occasion to treat her for some time and then to operate her with the assistance of Dr. Joshi, a general Surgeon, for removal of the mop/swab and for some sort of the complication, the patient was required to be transferred to Irwin Hospital, Jamnagar. Thus, the finding of foreign body (mop/swab) has been established by the complainant beyond reasonable doubt. Merely because the complainant has not been able to produce the sonography report which according to her has been lost in the earthquake of 2001 as per the aforesaid pursis, evidence of Dr. Paruben Raiyani cannot be brushed aside. Her ailment has been supported by the case papers, xerox copies whereof have been produced on the record of the complaint right from inception. It is interesting to note that as a foreign body was noticed in the fresh sonography examination and during the course of operation it was in fact found the phogographer was also kept present. Photos of such foreign body (mop/swab) have been placed on record right from the inception. Thus, the opponent doctor had opportunity to have a look at the photographs and comment on the same. The photographs are at Exh. 32 and they clearly reveal presence of foreign body during the operation performed by Dr. Paruben Raiyani and Dr. Joshi, a general Surgeon. Rajendra Dineshchandra Makwana, the photographer has been examined at Exh 30. He is running a studio in the name of Guru Art Studio. He had an occasion to go to Dr. Raiyanis Hospital at the say of the complainants husband Hasmukhbhai Modi. He has produced the negatives of the photographs which he had taken during the course of the operation. He had taken permission of the concerned doctors for taking of the photographs and he had taken the photographs as suggested by the concerned doctor. He also produced the bill of Rs. 372/ - dated 6.1.1995 appearing at Exh. 34. Thus, the photographs accompanied with the negatives and the bill and the deposition by the photographer Rajendra Makwana lend support to the complainants say about the finding of foreign body from her abdomen at the time of second operation performed by Dr. Raiyani.

THE complainant has also examined Dr. Vijaysinh Dodiya, who had performed final operation at Irwin Hospital, Jamnagar where the said doctor was serving as Surgeon for the period from 1984 -1999. He had an occasion to record the history. Accordingly the complainant was operated for caesarean section operation in the first place and thereafter as pus was oozing out (from the stitches) 2nd operation was performed as mop was to be taken out from abdomen. At first, the complainant was operated on 20.1.1995. The complainant was passing stool from the operated portion and two holes were found in the intestines. 2nd operation was performed on 7.3.1995 as the stitches got opened. The witness produced original patient card with original operative notes, xerox copies whereof were produced by the complainant along with the complaint (Mark -A). The said card and the notes came to be exhibited as Exhs. 27 and 28. Having gone through the said card and the operative notes, we find that the facts with regard to operation performed by the said doctor clearly get supported. The opponent who has been cross -examined thereafter on 22.2.2002 has not rendered any further explanation with regard to the evidence which has been produced by the complainant. Her stand is that of denial. According to her the operation performed by her did not fail. She, however, has not rendered any explanation with regard to the finding of foreign body from the complainants abdomen and operation performed by Dr. Raiyani in that respect.

FROM the evidence that has been produced by the complainant it has clearly been established that either on account of negligence on the part of the concerned staff of opponent doctor, foreign body in the form of swab/mop stood left inside the abdomen and the operated wound was stitched leaving such foreign body inside the abdomen. That clearly appears to have resulted into further complications as noted hereinabove. That necessitated further operations being performed on the complainant. Thus, as soon as it was found that foreign body was left inside the complainants abdomen which was opened at the time of caesarean section operation, the negligence on the part of opponent doctor as stated above stood established on the face it. As the opponent doctor has not been able to explain the same, there is no alternative except to find that she is guilty of deficiency in rendition of medical service resulted into great deal of pain, shock, suffering and hardship to the complainant who was required to be operated thrice. That takes us to the determination of quantum of compensation to which the complainant will be entitled. As stated above, the complainant has prayed for lumpsum compensation in the sum of Rs. 10,00,000/ -. She has not set out particulars with regard to expenses incurred by her or by her husband. She has not produced any bills/vouchers either with regard to the surgery and medical treatment taken by her at Gandhidham and/or at Jamnagar or with regard to any financial loss suffered by her or her husband. At the same time the fact that she was thrice operated at 2 different places cannot be disputed. It is apparent on the face of the case papers that she was required to take prolonged treatment at both the places. It is obvious that the she and/or her husband must have spent considerable amount after such treatment taken by the complainant from time -to -time. It is also obvious that the complainants husband had to attend to her on number of occasions both at Gandhidham as well as at Jamnagar. Thus, they would have obviously to incur heavy expenditure and in the facts and circumstances of the case it would be just and proper to assess such expenses in the sum of Rs. 50,000/ -.

THE complainant had to undergo prolonged treatment and on three occasions surgical treatment. It is true that she has not been able to produce any evidence to show that even after performing the last operation she was not cured or she suffered from any disability. At the same time she had to undergo a great deal of physical and mental sufferance for more than three months after the caesarean section operation was performed by the opponent doctor. In our considered opinion, bearing in mind the facts of the case as also the decisions submitted on behalf of the complainant, it would be just and proper to fix general damages on the head of mental agony, physical pain as also hardship suffered by the complainant and her husband in the sum of Rs. 1,00,000/ -. In a decision submitted on behalf of the complainant in Prasanth S. Dhanaka v. Nizams Institute of Medical Sciences and Ors., in I (1999) CPJ 43 (NC)=Original Petition No. 124 of 1993 decided on 16.2.1999, the National Commission had an occasion to award Rs. 2,00,000/ - as compensation for mental agony, physical suffering and pain and also for physiotherapy, nursing and associated expenses incurred by the patient. The facts of the sufferance of the patient in that case were more grave than the facts of the present case. At the same time the award of compensation as stated in the aforesaid decision would justify the award of general damages in the sum of Rs. 1,00,000/ - in the present case. In Mrs. K.K. Radha v. Dr. G.U. Sekhar and Anr., reported in III (1994) CPJ 376, submitted on behalf of the complainant, general damages in the sum of Rs. 1,00,000/ - came to be awarded and the patient in that case had to undergo five more operations on account of complication arising from the operation which was subject matter before the State Commission. The case of Shivaji Gendeo Chavan v. Chief Director, Wanless Hospital reported in III (1995) CPJ 43, submitted on behalf of the complainant was one of amputation of right leg of the patient who later on died. In the facts and circumstances of the case, the Maharashtra State Commission had an occasion to award lumpsum compensation in the sum of Rs. 2 lakhs. Thus, the decisions submitted on behalf of the complainant would justify the award of lumpsum general damages in the sum of Rs. 1,50,000/ - in the present case as stated above,

BEARING in mind the facts and circumstances of the case, we pass following order: ORDER The opponent is directed to pay to the complainant Rs. 1,50,000/ - with running interest @ 9% p.a. from the date of complaint till payment and cost quantified at Rs. 5,000/ -. Complaint allowed.