DHARANI vs GOVERNMENT OF PUDUCHERRY & ANR

The complainant, Smt. Dharani (the patient), on 07-06-2004 delivered a male baby by LSCS (Caesarian section) in the Government Maternity Hospital, Pondicherry (OP-2). She was discharged on 15-06-2004. Thereafter, she had continuous pain and wound infection. Therefore, from 17 to 29/6/2004 she took treatment from Dr. Shanti at Tindivanam. Thereafter, patient for the same pain and infection was again admitted in OP 2-hospital from 30-06-2004 to 13-07-2004. The wound was not healed, still there was pus discharge. She consulted Dr. Prabhavati at Tindivanam, took CT scan at Vallipuram. She advised surgery again at OP 2-hospital. Again, for the 3 rd time, the patient got admitted in OP-2 from 17-08-2004 to 01-09-2004, but no cure. The OP failed to appreciate the CT scan report, did not care for the patient''s pain and continuous pus discharge from the wound. Thereafter, she took treatment from Dr. Parshuraman at Tindivanam from 02-09-2004 to 22-09-2004, but to no avail. Then she approached Santosh Hospital Pvt. Ltd., Chennai on 23-09-2004 and an emergency surgery was performed on next day, by Dr. Kannan. It was assisted by Dr. Meera Bai. Patient was discharged on 04-10-2004. The discharge summary mentioned about a foreign body with damage to jejunum loops & sigmoid colon forming an abscess cavity. Therefore, complainant alleged negligence against OP 2-hospital, who performed LSCS surgery negligently, left behind foreign body (pad). The patient suffered physically and also monetarily, moreover, her new born baby was deprived of maternal nourishment for 6 months. Hence, the complainant filed a complaint before the District Forum at Pondicherry against OP 2 for negligence and against OP 1, as vicariously liable and sought relief of Rs.18,50,000/-.

The District Forum dismissed the complaint. Consequently, the appeal preferred by the complainant was also dismissed by the Puducherry State Commission. Therefore, the complainant filed this revision petition.

We have heard the learned counsel for both the parties. The counsel for the petitioner/complainant vehemently argued that, there was negligence and carelessness in performing the LSCS operation. The doctor at OP 2 left behind a foreign body or a gauze pad. The counsel brought our attention to the discharge summary of Santosh Hospital. It revealed that Dr. Kannan; the surgeon, operated the patient on 21-04-1994, under general anesthesia. The foreign body was removed with jejunal resection. He performed anastomosis with sigmoid colon. The surgeon noted finding as, " Finding : A pad was seen burrowing into the jejunal loops & sigmoid colon forming an abscess cavity.

Procedure:

Abd. Operation the adhesion was separate and the pad was removed. About 6" of Jejunam and an end to end anastomosis done in two layers Inner 3-0 vinyl and other 2-0 silk. The perforated sigmoid colon was brought out an loop sigmoid cavity. A DT kept in the pelvis through the right side. Saline lavage given and linea alba with I proline and skin with silk."

He further brought our attention to the histopathology report of the specimen. The gross description clearly mentioned about operation of jejunum with omental pad of fat and a foreign body. The jejunum was measuring 15 cm with dense adhesions and varying thickness of wall. The pathologist gave an impression, as follows; "Ulceration with granulation tissue, congestion and ischemic necrosis of the small intestine. Kindly correlate." He brought our attention to the evidence and cross examination of Dr. Vijayshree, the pathologist and Dr. Kannan and Dr. Parshuraman."

The counsel for the OP vehemently argued that there was no negligence on the part of the OP-hospital. The complainant has not proved any negligence on the part of the doctors at OP-hospital. The histopathology report is inconclusive. It is devoid of any findings on the foreign body. The counsel brought our attention to the evidence and cross examination of the pathologist, which show discrepancy. The counsel for the OP further submitted that, for the 2 nd time, the OP-hospital performed barium enema study to know the cause of abdominal pain. Nothing was found abnormal. The patient was given proper dressing regularly. The CT scan was also examined, but there was no mention of foreign body.

We have perused the medical records, the relevant literature on the subject. Also perused the evidence and interrogatories filed by the parties before the District Forum. Ex.C11, the CT scan report dated 12-08-2004 does not mention about any foreign body, but revealed, only bilateral large intestine stuck to the anterior abdominal wall. The Radiologist suspected the possibilities of a growth inside the large gut. The patient was operated in the OP-hospital on 07-06-2004 and thereafter, she got admitted thrice, within two months i.e. up to 17-08-2004. She had persistent pain and pus was discharging from operative wound. Even on admission, on 17-08-2004 i.e. for third time, the OP examined her, kept her hospitalized for 15 days and discharged on 01-09-2004, but there was no relief of abdominal pain and continuous pus discharge from the wound. Thereafter, she consulted Dr. J. Parshuraman at Ramadass Hospital at Tinidivanam, from 02-09-2004 to 22-09-2004. She was investigated by USG abdomen. The pain was still persisting and the wound was not healed. Therefore, she visited Santosh Hospital, Chennai, where an emergency operation was performed on 24-09-2004. The doctors at Santosh Hospital, Dr. Kannan, along with Dr. Meerabai, performed the surgery, removed the cotton pad from the abdomen.

The histopathology report confirms that, there was a foreign body. Regarding the controversy about HPE report which is devoid of findings of foreign body, we accept that, the pathologist gave a microscopic finding regarding the intestinal tissue. No microscopic details of foreign body were mentioned in the said report. According to Surgical Pathology books, few foreign bodies are difficult to process and microscopic slides cannot be prepared. Even otherwise, the histopathological report is a collective report given by pathologist, after considering gross and microscopic features. For example, in the case of Dermoid cyst (a benign teratoma), it contains three germ layers. Grossly, it comprised of number of structures like hair, numerous teeth, fat, muscles, thyroid and different tissues from the three germ layers, etc.. Few of the tissues can be studied microscopically, whereas, microscopic study from the tooth or hard tissues, is difficult. Sometimes, the tissue sections cannot be processed and do not show classic features of dermoid cyst. Therefore, the Pathologist will form his opinion after considering Gross and Microscopic features, along with the clinical and radiological findings. In the instant case, there is evidence of Dr. Kannan with Dr. Meerabai of Santosh Hospital which clearly establish that the pad (foreign body) was seen burrowing in the jejunum loops & sigmoid colon, forming an abscess cavity. Therefore, considering the opinion of operating Surgeons and Pathologist, we cannot deny about the presence of a foreign body.

The patient, on 24-09-2004, underwent a single surgery after the initial LSCS. There was almost three months gap and there was no other surgical intervention also. Hence, we are of considered view that, the foreign body was left behind by OP at the first instance only, i.e. during LSCS. The doctrine of Res Ipsa Loquitur is also applicable in this case.

No doubt, the patient was under follow-up of OP-2, till 17-08-2004. The OP-2 treated the discharging wound, performed necessary investigations, like barium enema, but failed to diagnose the foreign body. It caused suffering to the patient, for a long period. It certainly caused mental agony, stress, unnecessary expenditure and unnecessary surgeries on 24-09-2004 and 24-02-2005 i.e. for revision colostomy and colostomy closure at Santosh Hospital.

The District Forum already decided that the patient was a consumer. The judgments of Hon''ble Supreme court in VP Shanta''s Case 1(1996) CLT 81 (SC) and Savita Garg''s Case IV (2004) CPJ 40(SC) held that government hospitals are also liable for medical negligence. Recently, on July 1, 2015, Hon''ble Supreme Court, by the Bench of Mr. Justice J S Khehar and Mr. Justice S A Bobde, decided the case of V. Krishnakumar Vs. State of Tamil Nadu & Ors. 2015 AIR(SCW) 4283, and held the Govt. of Tamil Nadu responsible for medical negligence caused in the government hospital and awarded a compensation of Rs.1.38 crore and topped it with an additional amount of Rs.42.87 lakhs to take care of the medical treatment that the 18-year-old girl would require. Therefore, it will be unjustified if we take a lenient view towards the OP-2, in the instant case, which is a Government hospital.

We are surprised that, both the fora erred and dismissed the complaint, without giving weightage to the Surgical and Pathological findings of Santosh Hospital. We are of considered view that, the OP-2 performed operation without reasonable skill and care. It was a breach, in the duty of care i.e. medical negligence. Hence, the complainant/patient deserves proper compensation. The complainant prayed for Rs.1,50,000/- towards the medical expenditure incurred and for future medical expenses, but seeks further compensation towards negligence and deficiency in service form the OP-hospital to the tune of Rs.16,80,000/- which appears to be an exaggerated claim.

This instant case is hanging fire for the last more than one decade. Patient got cured after removal of foreign body, but she was subjected for major surgery, her intestine was resected. Regarding compensation, we rely upon the decision of Hon''ble Apex Court in PRASANTH DHANANKA''s case (1999) 1 CPJ (NC) 43. Thus, considering the complainant''s suffering and agony, in our view, the total compensation of Rs.5,00,000/- is just and proper. Therefore, we set aside the orders passed by both the fora below and allow this revision petition. The OP shall pay total compensation of Rs.5,00,000/- within 60 days to the complainant, otherwise, after expiry of said 60 days, it will carry interest at the rate of 10% per annum, till its realization.