RINA PRAKASH vs DECHI GANAPATHY

THIS is a complaint under Section 17, read with Section 12 of the Consumer Protection Act, 1986. It is the case of the complainant that on 27-6-1990, she was admitted to Brunton Nursing Home, Bangalore-O.P. No. 2, for her third Caesarian section. Opposite Party No. 1, Smt. Dr. Dechi Ganapathy, MBBS, FRCS (England), performed the caesarian section on the complainant on 28-6-1990, under general anaesthesia R.W. 1-Dr. Surjit Kaul, administered anaesthesia. The peadiatrician-R.W. 4, Dr. Muddaiah, assisted O.P. No. 1-R.W. 5, in the said caesarian operation.

THE complainant, while she was still in the Nursing Home, complained of severe pain in abdomen and pelvic region. O.P. No. 1 suggested a pelvic scan to be taken at the Institute of O.P. No. 3. O.P. No. 3 took the scan as per Ex. C-8on 4-7-1990 and found uterus bulky containing clots and infected material. Opposite Party No. 1 on receipt of the said scan, though advised the complainant that it would be better to dilate and evacuation of the uterus of any retained material therein, but the complainant was not satisfied with the treatment in the Nursing Home and got herself discharged from there and got admitted in St. John''s Medical College Hospital, Bangalore, on 5-7-1990. O.P. No. 1 gave a letter of discharge, as per Ex.C-9. It is the further case of the complainant that she remained in the St. John''s Medical College Hospital, Bangalore, as an inpatientfrom 5-7-1990 till 17-7-1990. On 6-7-1990, a scan was taken, as per Ex. C-1, the complainant was discharged from the St. John''s Medical College Hospital, Bangalore, on 17-7-1990.

Nextly, it is the case of the complainant that on 11-8-1990, she developed Intra-abdominal parietal abscess with acute pain, vomitting and discomfort, so she got herself admitted in the St, John''s Medical College Hospital, Bangalore, on 11-8-1990 and she was once again operated in the said Hospital on 12-8-1990 by C.W. 3-Dr. Phillip Thomas. It is the case of the complainant that during the said operation a sponage-M.O.1 was found in the Jejunum in the abdomen of the complainant. The said sponage was the sponge left behind in the body of the complainant during her caesarian section operation performed by O.P. No. 1 in the Brunton Nursing Home, Bangalore, on 28-6-1990.

THE complainant further averred that it was a gross negligent act on the apart of O.P. No. 1 having left a sponge in the abdomen of the complainant during the operation performed by her on 28-6-1990. The complainant further averred that written consent of the complainant''s husband was not taken for the caesarian section performed on 28-6-1990, that O.P. No.1 did not secure the presence of a second surgeon at the time of operation, that O.P. No.1 obtained the consent of the complainant for caesarian section inside the operation theatre, and that O.P. No. 1 failed to exercise due and standard care as reasonably expected of a medical practitioner with a specialisation in surgery. The complainant had under-gone a mental agony and suffered a great inconvenience in consequence of the negligent act of O.P. No. 1. The complainant on the basis of these averments sought a sum of Rs. 5,56,597-95 as compensation on various counts including a compensation of Rs. 5 lakhs for mental pain, agony and suffering undergone by her.

O.P. No. 1 filed her statement of objections and averred that there was no deficiency in the medical service rendered to the complainant. The O.P. averred that she had acted in accordance with the standard of reasonable medical care, there was no negligence either in the operation or in the treatment of the complainant on the part of the opposite parties. The caesarian section performed on the complainant by O.P. No. 1 on 28-6-1990 was a third caesarian section. Even the first caesarian section was performed by her in the month of February 1982. Subsequently, she had a second caesarian section in Kerala in the month of Nov. 1983. It was a smooth and safe operation. While she was in the hospital she complained of lower abdominal pain on 2-7-1990 and an ultra sound scan was advised and taken and it was found that infected clots were in the uterus, so it was decided to have an evacuation of uterus of any retained products; but the complainant refused to undergo this treatment, got herself discharged against the medical advise and got admitted in the St. John''s Medical College Hospital, on 5-7-1990. O.P. No. 1 further averred that it was totally false and untrue that a sponge was found in the jejunum of the complainant at the time of operation in St. John''s Medical College Hospital on 12-8-1990 and it is also untrue that that was the sponge left over in the abdomen of the complainant by O.P. No. 1 at the time of caesarian operation on 28-6-1990. O.P. No. 1 further averred that in the caesarian operation that was performed by her on the complainant on 28-6-1990 was smooth and safe and all care and caution was taken in operating the complainant and no sponge was left over in the abdomen of the complainant. O.P. No. 1 denied her negligence either in performing caesarian section on the complainant or in treating the complainant.

OPPOSITE Party No. 1, on the basis of these averments, sought the complaint to be dismissed.

OPPOSITE Party No. 3-an Ultra Sound Scan Institute, which had given the scan report, as per Ex. C-8, averred that the report given was the correct report and even the scan taken subsequently in the St. John''s Medical College Hospital on 6-7-90, as per Ex. C-11, confirmed the report given by it. So the allegations made by the complainant against O.P. No. 3 were all untrue and baseless. During enquiry the complainant examined herself as C.W. 7, got C.Ws. 1 to 6, examined. C.W. 3 Dr. Phillip Thomas is the Surgeon who, it is alleged, performed the operation on 12-8-1990 on the complainant at St. John''s Medical College Hospital, Bangalore. The complainant also got Exs. C-1 to C-48 marked in evidence. OP. No. 1 examined herself as R.W. 5 and got R.W. 4 examined. She also got Exs. R-1 to R-7 marked in evidence.

Having regard to the pleadings of the parties and the submissions made by the learned Counsel for the parties, the points that arise for our consideration, are: (A) Whether a sponge or a swab -M.O.1 was found inside the upper intestine (jejunum) in the upper abdomen of the complainant while the second operation was performed on the complainant on 12-8-1990 at St. John''s Medical College Hospital, Bangalore? (b) Whether the said swab-M.O.l was the same swab left in abdomen of the complainant by O.P. No. 1 at the time of caesarian section performed on her on 28-6-1990 at Bront on Nursing Home, Bangalore ? (C) Whether there was any deficiency in the medical service rendered by the opposite parties ? (D) If so, to what relief the complainant is entitled to ?

REGARDING Points (a), (b), (c) and (d): The complainant, in her averments at para 9 of her complaint regarding the sponge, has averred thus: "By 12-8-1990, the complainant had developed Intra-abdominal abscess and parital abscess with acute pain, vomitting and discomfort. She was, therefore, once again operated at St. John''s Medical College Hospital. In the course of such operation, it was discovered that a sponge had been left behind in the body of the complainant at or during the caesarian section operation performed by the first respondent at the second respondent hospital."

The complainant, in her evidence, has in this regard, stated thus: "I came to know two or three days after the operation through some nurses who were attending on me that a swab was found in the jejunum. Dr. Phillip Thomas (C.W. 3) did not tell me about it, but he told it to my husband, and Dr. Prathap Phillip John also."

The evidence of the complainant, in this regard, as referred above, is only hear-say evidence. It is not going to help in any way the case of the complainant that a swab -M.O.1 was found in the jejunum of the complainant in the operation performed on her on 12-8-1990.

C.W. 3, Dr. Phillip Thomas, is the Surgeon who performed the operation on the complainant on 12-8-1990 at St. John''s Medical College Hospital, as per the case of the complainant. C.W. 3, has in this regard, stated thus: "She was dehydrated due to vomitting. She needed immediate operation called laprotomy. After resuscitation I operated on her. During operation I noticed abscesses, two in number, within the peritonial cavity. I also noticed another abscess in the abdominal wall. Just above the earlier incigen for a caesarian operation, the small intestine called jejunum was obstructed and it was firmly stuck to one of the abscesses. I noticed a sponge in the jejunum at the point of its adherence to the abscess. The sponge was taken out by me. It was dried and thereafter it was kept in a paper and sealed. It was preserved in cup-board in our hospital. M.O. 1 contains the sponge which I took out from the abdominal of the complainant during the operation."

C.W. 3 has admitted that the complainant is the daughter of his Father''s brother. The complainant has also stated that C.W. 3 is her cousin. C.W. 3, with regard to the safe custody of the swab-M.O. 1, after its removal from the abdomen of the complainant, has stated thus: "The swab was kept in the locker inside the operation theatre. The theatre sister is incharge of that locker. I am responsible for keeping the swab in the locker. After getting it dried up by the sister, I sealed the swab and kept it in the locker."

The theatre sister, under whose custody the swab was lying, has neither been examined nor her name is disclosed. This swab-M.O. 1, which is stated to have been removed from the jejunum of the complainant on 12-8-1990 came before the State Commission only on 20-8-1991. The complaint came to be filed by the complainant on 12-12-1990. the opposite parties filed their objections on 2-3-1991.

C.W. 4, Smt. Rachel Cherian, is the doctor who is stated to have provided anaesthesia to the complainant during the operation on 12-8-1990. She has stated that though she was present in the operation theatre then, but she cannot say whether M.O. 1 is the sponge which was taken out from the abdomen of the complainant. That is the evidence of C.W. 5 Dr. Mabel Vasnaik, as well. She has stated that the sponge taken by Dr. Thomas was like M.O.1 before the Commission. Having regard to the evidences of the witnesses, the only evidence with regard to the finding of a swab in the jejunem of the complainant during the operation on 12-8-1990 is the evidence of C.W. 3-the cousin of the complainant.

C.W. 4 has stated that the operation was done by C.W. 3 and Dr. J. Franscis. The specific statement of C.W. 4, in this regard, reads thus : "I know the complainant. She was operated on 12-8-1990 in St. John''s Medical College Hospital for intestinal obstruction by Dr. Phillip Thomas, C.W. 3 and Dr. J. Franscis."

This, Dr. J. Franscis, has not been examined. It is not the statement of C.W. 3-Dr. Thomas that Dr. J. Franscis also was present either operated or assisted him in operating the complainant on 12-8-1990. It is the evidence of C.W. 6-Dr. Eswar Prasad, that it was he who assisted C.W. 3 in the operation on the complainant on 12-8-1990. He doe''s not say that Dr. J. Franscis was present and operated on the complainant along with C.W. 3 Dr. Phillip Thomas.

We have seen the songe or swab-M.O.1. It measures about 12" x 12". It is of coarse cotton cloth, with double layer, uncleaned. It looks like mildely ironed cloth. No blood nor puss nor any juicy material nor any mucus slippery nor any greezy or oily substance stuck to it was found. No matting of any kind is found.

IT is the evidence of C.W. 3 that he removed this M.O.1 from the jejunum of the complainant. He has referred it in his operation note as per Ex. C-l, as a sausage shaped firm mass was found in the jejunum. This sponge, according to the case of the complainant, was lying in the abdomen of the complainant either in the abdomen or jejunum from 28-6-1990, the date of caesarian operation till the second operation on 12-8-1990, that is, almost for a period of 45 days. According to the complainant this swab was so lying drenched or soaked up in the abdomen or jejunum for a period of 45 days. But M.O.1 does not find matted with any substance either greezy, oily, juicy or blood or puss. C.W. 3 has in this regard, as referred above, stated that he removed the said swab that was found firmly stuck in the jejunum, dried it and kept in the locker. But from the sketch in Ex. C-l, the operation record, the sponge is shown in the small intestine away from the abscess. The operation record does not also mention that the sponge was dried and kept in a sealed cover. These circumstances make the evidence of C.W. 3 highly unsafe to act upon and makes the existence of the sponge itself doubtful.

C.W. 3 has stated that the said swab was firmly stuck to the abscess. As referred above, no any type of puss or blood or any other material was found matted with M.O.1. Another aspect which is material to be considered is that C.W. 3 has stated that M.O.1 was found stuck to abscess and was lying in the jejunum in the sausage shape firm mass. M.O.1 does not contain any such fold or wrinkles to show that it was in that sausage shape firm mass. According to the statement of C.W. 3 he removed it, got it dried up and put in the locker. If it were to be so, necessarily matting and folds would have been found on M.O.1. C.W. 3, has further stated, thus : "We had sent the edge of jejunal fistula and the fluid from the intra-abdominal abscess to the Pathology Department. We do not send the foreign body to the Pathology Department. Swab was kept in the locker inside the operation theatre. The theatre sister is incharge of that locker."

It is clear from this evidence that even though C.W. 3 took the trouble of sending the edge of jejunal fistula and the fluid from the intra-abdominal abscess to the Pathology Department for its report, but he did not think it necessary to send this M.O.1-foreign body found in the jejunum for Pathological report. This by itself would go to show how unsafe is the statement of this witness for acceptance.

AS referred above, this swab-M.O.l, was lying in the custody of the theatre sister who was incharge of the said locker. She was the most important witness to speak to the fact whether such a swab was found and whether that was kept by Dr. Thomas with her on that day. But the complainant unfortunately failed to disclose the name of that theatre sister nor she was examined, such a material witness.

C.W. 3 has stated that sponge was taken out, it was dried and thereafter it was kept in a paper and sealed and it was preserved in a cupboard in the hospital. M.O.1 is the swab. When it was produced before the Commission it was found in a plastic cover and the opening of the said plastic cover was closed with the bandage sticker. M.O.2 is the sample seal. This sample seal sent is dated 7-8-1991. No such sample seal was found on the plastic cover under which M.O.I was found. All these circumstances would go to show that the evidence of these witnesses that M.O.1 was found in the abdomen of the complainant on 12-8-1991 in the second operation performed by C.W. 3, is unworthy of any credance. Having regard to these facts and in the circumstances of the case, we hold and record point No. (a) against the complainant.

Having regard to the finding at point No. (a) against the complainant, necessarily the other point Nos. (b), (c) and (d), are recorded against the complainant. ORDER In the result, therefore, this complaint fails and it is dismissed. The complainant shall pay a sum of Rs. 1,000/- (Rupees one thousand only) to opposite party No. 1 towards the costs of these proceedings. Complaint dismissed. ________________