Mahendra Panchal vs Hemaben Sanjeevkumar Kanodiya

THIS appeal seeks to challenge the order dated 18th of October, 2007 passed by the Gujarat State Consumer Disputes Redressal Commission, Ahmedabad (for short the State Commission) in Complaint No. 119 of 2000 directing the appellant-opposite party no.1 to pay a compensation of Rs.3,35,000/- to the respondent-complainant with 9% interest per annum from the date of filing of the complaint within a period of 30 days from the passing of the order, holding the appellant-opposite party no.1 medically negligent, inasmuch as an instrument had been left in the stomach of the respondent-complainant at the time of conducting a caesarian operation. A cost of Rs.10,000/- too has been imposed.

FACTS of the case, in brief, are that the respondent-complainant was admitted in the hospital of the appellant-opposite party no.1 on the 14th of May, 1999 for the safe delivery of her child. However, a caesarian operation had to be performed to deliver the child. The mother with the child was discharged from the hospital on the 22nd of May, 1999. Allegedly, the respondent-complainant had to foot the bill of Rs.2.00 Lakhs as the fee/expenses to the hospital. The respondent-complainant thereafter experienced pain in her stomach and went for a check up but was informed by the doctor that the pain was because of the appendix and prescribed some painkillers. The pain, however, did not subside and she had to visit the appellant-opposite party no.1-doctor repeatedly. The doctor finally advised the respondent-complainant to carry out a sonography test which was got conducted at Nanavati X-ray and Sonography Laboratory Clinic of Dr. D.N. Nanawati, opposite party no.3, who is claimed by the respondent-complainant to have informed her that a scissor was found in the stomach but did not hand over the report thereof and directed her to come after some time. It is the allegation of the respondent-complainant that Dr. Nanavati, opposite party no.3, informed the appellant/opposite party no.1 about the scissor in the stomach of the respondent-complainant and in connivance with the appellant-opposite party no.1 to cover up the folly he informed the respondent-complainant that she was suffering from appendix pain. Suspecting some foul play, the respondent-complainant went to Mumbai and consulted Dr. Bimal Shah, who admitted her on the 22nd of August, 1999 in Bhakti Vedant Hospital. The sonography test and x-ray conducted on the respondent-complainant revealed the existence of an instrument (scissor) in the stomach, which was taken out after another operation. Alleging deficiency in service and serious medical negligence, the complaint was filed before the State Commission. Before the State Commission, the appellant/opposite party no.1 while denying that there has been any deficiency on his part, however, admitted that ?there was sudden electric power failure? when he was in the process of suturing the uterine wound after the delivery of a baby girl and in the prevailing uncertainty of restoration of electricity by the standby generator, which takes about 3 to 5 minutes, he continued to complete the operation with the help of torch light to minimize the blood loss to the patient. It was claimed that in the aforesaid delicate moments all care and caution were taken as a doctor of reasonable prudence. It was also claimed that he had a long experience of running the maternity hospital and carrying out deliveries over more than two decades and if something has gone wrong it cannot be said to deficiency in service.

The State Commission after receiving the evidence of the parties and on evaluation of the evidentiary value of the affidavits filed in evidence, including the cross-examinations of the concerned doctors, arrived at the finding that this was a clear case of medical negligence. However, the State Commission was of the view that Dr. Rekhaben Panchal (opposite party no.2), the wife of the appellant-opposite party no.1-doctor, who was not present at the time of the operation and Dr. D.N. Nanavati, opposite party no.3, of the Nanavati X-ray and Sonography Laboratory Clinic were not found to be deficient in service and, therefore, absolved them of any liability, leaving opposite party no.1, the present appellant, to be blamed for the entire episode of negligence and execution of the award.

AGGRIEVED against this order of the State Commission, Dr. Mahendra Panchal, opposite party no.1, has challenged the State Commission?s order in this appeal. We have heard the learned counsel for the parties. On behalf of the appellant-opposite party no.1, it has been submitted that the respondent-complainant had approached the appellant at the time of the birth of her first child and the fact that she had again come to them for the birth of her second child demonstrated that she trusted his medical expertise and competence. While admitting that the respondent-complainant was examined on the 14th of May, 1999 and on finding that there was no expected descent of the fetus in relation to her labour pains, admitted her in the hospital explaining to her family that a caesarian operation was necessary for the safety of the mother and the child. A decision on whether to go in for a caesarian operation or otherwise was considerably delayed as her husband gave the written consent only by the evening and at about 7.20 p.m. a female baby was delivered. However, it is admitted by the appellant/opposite party no.1 that there was power failure at the time of operation and even in that adverse circumstance, he completed the operation with utmost care and caution with the help of a battery operated torchlight to prevent excessive loss of blood. In that process, if any instrument had been inadvertently left in the abdomen, it was the duty of the nurse to have ensured after the operation was over that all the instruments/consumables were intact and accounted for. The appellant/opposite party no.1 has also tried to take shelter behind a technicality that there was no conclusive proof that any artery forceps was left in the abdomen, inasmuch as the x-ray report prepared at the Bhakti Vedant Hospital, though showed the surgical instrument in the abdomen, such a x-ray can be obtained by placing the instrument even outside the body. All these grounds, to say the least, hold no water at all and appear to be only a desperate attempt to wriggle out of the serious negligent act of having left an ?artery forceps? in the abdomen of the patient. That the ?artery forceps? was retrieved after the second operation by Dr. Bimal Shah, which is conclusively proved even after his cross-examination, is sufficient for the consumer fora to hold that this was a clear act of negligence. The attempt of the appellant to pass on the blame to a nurse for not having accounted for instrument etc. is not only unfortunate but we deprecate such attempt as it is the doctor who himself was making using of the ?artery forceps? in the process of conducting the delivery and if the instrument has slipped into the abdomen, it would have happened from his own hands. In any case, it was for him to have made sure that no foreign material was left inside the abdomen before he started suturing the wound. In the case of Achutrao Haribhau Khodwa & Ors. Vs. State of Maharashtra & Ors. [(1996) 2 SCC 634] in a somewhat similar case of a mop (towel) having been left in the peritoneal cavity of the patient at the time of operation, the Hon?ble Supreme Court has held that negligent act was writ large and it was a case of res ipsa loquitur. This view was reiterated by the Hon?ble Apex Court in a recent judgment in the case of Martin F. D?Souza Vs. Mohd. Ishfaq [(2009) 3 SCC 1] while laying down the general principle to be followed while deciding cases of medical negligence.

IN the present case, if the power supply went off during operation, it was all the more necessary for the operating surgeon i.e. the appellant/opposite party no.1 to have been extra ordinarily careful to ensure that no foreign material was left in the abdomen. It is unthinkable as to how an operation could be conducted with the help of a three cell torchlight and the appellant/opposite party no.1 ought to have made better emergency arrangement for automatic switching on of the lights in case of power failure. That the appellant/opposite party no.1 had acted carelessly in a manner which is not expected of a hospital or a doctor, the State Commission, in our view, has very rightly held the appellant/opposite party no.1 negligent. The amount of compensation too is quite just and fair. Under the circumstances, we do not find any merit in the appeal and dismiss the same, however, with no order as to cost.