HARVINDER KAUR vs SUSHMA CHAWLA

SMT. Harvinder Kaur w/o Shri Harwant Singh has filed appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 1.4.1999 passed by the District Forum, Jalandhar, dismissing her complaint with the view that the complainant has not been able to prove prima facie any medical negligence on the part of the opposite party.

THE case of the complainant in short is that she was admitted in the hospital of the opposite party No. 1 Dr. (Mrs.) Sushma Chawla, at about 9.00 a.m. on 10.9.1997. She was taken to the operation theatre whereby caesarean operation was carried out and two babies were born. After the delivery, she got the tubectomy operation done from the opposite party No. 1, on the same day. She was discharged from the hospital on 19.9.1997 by the opposite party. As per the allegation of the complainant, she was not feeling perfectly well at the time of discharge. She was informed by opposite party No. 1 that the uneasiness was due to the caesarean operation and operation of tubectomy. She was assured of complete recovery within a month. THE opposite party No. 1 insisted her to visit the hospital for general check up and for follow-up treatment and the complainant had been visiting the opposite party No. 1 and complained about the pain in the abdomen and opposite party No. 1 suggested only medicines and Short Wave Diathermy (S.W.D.). She was also advised complete rest. As the complainant could not bear the pain of abdomen then she consulted another Physician namely, Dr. Ranbir Singh, Medical Surgeon of Jalandhar who advised for scanning of the abdomen, Needle Test and X-Rays etc. which she got conducted from Bhangu Scan and X-Ray Clinics, Jalandhar. It was clear from it that there was some foreign objection (Mass) at the left side of the abdomen just above umblicus level like a ball and had also noticed thick pus. THEn on the advice of Dr. Ranbir (M.S.), the complainant got herself admitted in the Bawa Hospital, Jalandhar on 18.11.1997 for further operation to get the foreign object removed as her health was day by day falling down and she was feeling discomfort, uneasiness and weakness. She handed over the original reports of Scan, Needle Tests and other reports to the hospital before the operation. On the basis of which, she was operated on 19.11.1997 and a "sponge" was removed from Peritoneal Cavity by the doctors of Bawa Hospital, Jalandhar. THE complainant remained admitted in Bawa Hospital, Jalandhar upto 25.11.1997. She was issued discharge certificate by Dr. Ramesh Kashyap, Resident Medical Officer of Bawa Hospital. According to the complainant, the "sponge" which was removed by the doctor of Bawa Hospital remained in the abdomen due to negligence of opposite party No. 1 while performing the caesarean operation on the person of the complainant on 10.9.1997. THE sponge was used for protecting the velns and the nerves and arteries below and around the uterus which had to be removed after the operation and before the stiching of the internal layer and outer skin of the abdomen. Due to this negligent act the complainant had to suffer a lot. She spent Rs. 50,000/- for the medicines and operation charges, physically also she was unable to do her daily routine jobs and found herself incapacitated to look after her children. So, she has prayed that for all the reasons state above, she may be awarded compensation to the tune of Rs. 5,00,000/- (Rupees five lacs) for deficiency in rendering service. On being noticed, the opposite party No. 1 filed the written version, alleging that false and frivolous complaint has been filed against them which is not maintainable. It has been denied if the opposite party No. 1 was in any way negligent in providing medical care to the complainant. Some of the facts were admitted such as the Caesarean Operation performed in her hospital where twin babies were born on 10.9.1997. The surgery performed was ''Lower Segment Caesarean Operation''. She was discharged on 9th post operative day which is usual time for normal recovery. After discharge, the complainant came on 27.9.1997 for mother and baby check-up, immunization day and she was suggested S.W.D. (short Wave Diathermy), which is a mild heat theorapy for recovery of internal wound. It has been denied if the opposite party No. 1 was careless and negligent towards the patient/complainant. It has been further denied if any foreign object was removed from the abdomen in the operation. In this regard, it is stated that at the time of a caesarean operation on the person of the complainant and as per practice of Nursing Home of the opposite party No. 1, no intra-abdominal sponge was used in caesarean section as the same is an old and out dated routine.

According to her record, at the time of operation on the person of the complainant, there was a team of doctors which consisted of Dr. Sushma Chawla, Dr. Anu, Dr. Harmeet, Dr. Upma and Dr. Savinder Singh, "sponge" which were used contained radio-opaque element whereas X-Ray produced by the complainant herself shows that there was no Radio-opaque element in the mass. Even the report of the scan of the abdomen does not indicate that there was any sponge left but indicates there was a mass in the abdomen above the umblicus whereas the said portion was not even exposed by the opposite party No. 1. It has been denied if due to any carelessness or medical negligence, the complainant had to undergo the second operation or she suffered any mental tension, harassment due to the act of the opposite party No. 1.

THE District Forum after considering the respective cases of the parties and perusing the evidence on record came to the conclusion that the opposite party has not been able to prove prima facie any medical negligence on the part of the opposite party. With these observations, District Forum, dismissed the complaint without costs giving rise of the present action by the complainant. In appeal Mr. G.S. Mann, Advocate appeared on behalf of the appellant and Mr. T.N. Gupta, Advocate represented respondent No. 1, Dr. Sushma Chawla, Mr. Vishwas Ahuja, Advocate was on behalf of the Insurance Company. We have heard the Counsel for the parties and have carefully perused the record of the District Forum. Two questions arise for our consideration, (1) whether the respondent No. 1 was negligent in rendering service, (2) if so, what relief the complainant is entitled to ?

THE case of the appellant as put forward by her Counsel is that the caesarean operation was performed on 10.9.1997 by Dr. Sushma Chawla. THE complainant was discharged on 19.9.1997. She revisited for the follow up check on 27.9.1997 and complained of pain in abdomen for which she was advised few medicines and S.W.D. As her condition did not show any sign of improvement, she consulted Dr. Ranbir Singh, M.S., who advised scanning, X-Ray and Needle Test, which were got conducted and on the basis of these tests, she had to undergo another operation on 19.11.1997 at Bawa Hospital. He brought to our notice Annexure C-6, the certificate given by Bawa Hospital signed by Dr. Ramesh and admitted by Dr. P.S. Bakshi, on 17.6.1998, which reads as under. This is to certify that patient Harvinder Kaur, 32 F was admitted in this hospital with mass abdomen on 18.11.1997 and underwent exploratory laparotomy on 19.11.1997. On exploration, "sponge" removed from the peritoneal cavity." The learned Counsel for the appellant argued that above mentioned certificate was sufficient evidence to prove that a sponge was left in the abdomen of the complainant during the first operation due to the negligence of the respondent No. 1 but the District Forum has not taken note of this certificate. To strengthen his argument further, he referred to Annexure C-4 ''operative notes'' which reads as under : "Operative Notes : Under G.A. (General Anaesthesia) Left paramedian incision - exploratory laparotomy done. Loops of Bawel and Omentum were matted together in left para-umbical region. On separation of the loops of Bowel some pus, necrotic material and "sponge" like substance was removed. After careful dissection, the inter loop adhesions were lysed. The result and cavity was irrigated with antibiotic solutions, drain left at the site closure of the peritoneal cavity and abdomen in layers after complete hemostasin."

THIS operation note is duly signed by Dr. P.S. Bakshi (Operating Surgeon), his Assistant Dr. Ramesh and Anaesthesist Dr. Upma.

THE Counsel for the respondent No. 1 put forward his argument that the "sponge" used in the hospital of Dr. Sushma Chawla contained Radio-opaque element and no intra abdominal sponge was used in caesarean section as the same is an old and out-dated routine. THE X-ray produced by the complainant shows that there was no Radio-opaque element in the mass. Even the scan report of the abdomen indicates that there was a ''mass'' in the abdomen above umblicus whereas the said portion was not even exposed by the respondent No. 1. In such like situation, where the medical negligence is apparent but is obviously denied by the party, the judgment of Apex Court comes to the rescue of the patients who have suffered due to the negligence of the medical practitioners. In the case of Indian Medical Association v. V.P. Shantha & Ors., III (1995) CPJ 1 (SC)=(1995) 3 CTJ pg. 969 (SC) (CP), that Fora could go into the matter as if it was a case of prima facie negligence. In para 38 of the same judgment, it is held as under : "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 the complaints about deficiency in 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 and containing the warning [as in Chin Keow v. Government of Malaysia, 1967 ACJ 379 (PC, England)], 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. One after reads about such incidents in the newspapers. THE issues arising in the complaints in such cases can be speedily disposed of by the procedure that is being followed by Consumer Disputes Redressal Agencies and there is no reason why complaints regarding deficiency in service in such cases should not be adjudicated by the agencies under the Act. In complaints involving complicated issues requiring recording of evidence of experts, the complainant can be asked to approach the Civil Court for appropriate relief."

Applying ratio to the decision of the Supreme Court as referred to above, to the facts of the present case, it can be stated that it is a prima facie case of medical negligence on the part of the respondent No. 1. The complainant''s tale of agony and misery started after the caesarean operation only. She visited the clinic of the respondent No. 1 on 27.9.1997 for post operative check up. Her misery became double folded when she underwent "Short Wave Diathermy". Instead of exercising a reasonable degree of skill, care and knowledge, she advised only few pain killers and rest. She should have taken post operative care of her patient and should have suggested scanning, X-Ray or Needle Test. As per the complainant''s version, on her visits after the caesarean operation, respondent No. 1 did not examine her physically. Had she been careful, she should have diagnosed the ''mass'' which was clearly palpable on touching, according to the complainant. According to the Counsel of the respondent No. 1, she is a well qualified P.G.I. (Gold Medalist) Physician but inspite of these qualifications, it is proved on record that she had not taken much of care which a doctor of ordinary skill should have taken. A doctor owes certain duties which must be performed in a reasonable manner and with due care and caution. Had she been cautious about the complaint of pain by the complainant, she could have gone to the root cause of the suffering of the complainant. If a doctor does not act prudently with care, as the respondent No. 1 has done in the present case, the complainant becomes entitled to the damages done on account of her negligence and carelessness.

After holding negligent act on the part of the respondent No. 1 in the matter of leaving the "sponge" in the abdomen of the complainant and not giving heed to her complaints of pain and suffering in a skilful manner as a physician should have attended to his/her post operative duties. The further question for consideration is as to ascertain the quantum of compensation for the loss she has suffered from the affidavits of the complainant and her husband and other witnesses, it is proved beyond doubt that the complainant had to be operated at Bawa Hospital for removal of the sponge from her abdomen which had been negligently left during caesarean operation performed by respondent No. 1. Apart from the factum of spending money for the second operation, medicines and stay in the Bawa Hospital, she also suffered mental agony, pain and suffering during the period the "sponge" remained in her person and could not attend to her twins as a normal mother should have. There is no yardstick specially provided to assess the loss on account of mental agony or pain suffered in such like matters. On that count, compensation is to be fixed on estimation. In the present case, a sum of Rs. 1 lac is considered just compensation under that head. Though in the complaint, a sum of Rs. 5 lacs has been claimed which is highly excessive. The amount spent on the second operation is claimed to be Rs. 50,000/-. The voucher and bills submitted by the complainant in this regard form the part of the record. After calculating the amount mentioned therein, the total amount spent for the second operation comes to Rs. 17,021.70p. Thus, the complainant is entitled to the sum of Rs. 17,025.70p., the actual expenses incurred by her along with interest @ 15%. Thus, the amalgamated sum of award will be as such Rs. 1 lac as compensation for mental agony and suffering, Rs. 10,000/- assessed as costs of litigation. The amount under the head of actual expenses calculated as Rs. 17,025/- will be awarded along with interest @ 15% from the date of filing of the complaint till its realization. The liability to make payment of the aforesaid amount would be that of the respondent No. 1.

FOR the reasons recorded above, we are of the considered view that the District FORum erred in its approach and had dismissed the complaint without appreciating the evidence produced by the complainant. As a result, this appeal is allowed and the order of the District FORum is set aside. The above mentioned directions regarding the reward are to be followed within a period of one month from the receipt of this order. Appeal allowed.