VIDYA DEVI vs P.N.Mohanty

COMPLAINT was filed, inter alia, alleging that the complainant is aged of 32 years and her third child was born about 2 years ago. In November 1997, she suffered from excess bleeding from her vagina. Therefore, she visited opposite party No. 1, an obstetrician and gynecologist at her clinic on 27.11.1997. After examining her the opposite party No. 1 opined that she is having fibroid uterus and advised to undergo various tests and prescribed some medicines. Complainant again visited opposite party No. 1 on 1.1.1998 with reports and on seeing them the complainant was advised to get herself admitted in Sudha Nursing Home run by opposite party No. 2. On 3.1.1998, opposite parties removed her fallopian tube, ovary of both the sides and the uterus. She was discharged from the nursing home on 9.1.1998. After a few days of operation, the complainant started having abdominal pain. So, she against visited opposite party No. 1 at her clinic on 17.1.1998. Thereafter, she visited opposite party No. 1 on 31.1.1998, 13.4.1998, 22.4.1998 and 15.5.1998. She did not get any relief. On suspecting that she may have been wrongly treated by opposite party No. 1, she consulted Dr. Manu Patnaik, another gynecologist at Rourkela on 27.7.1998. Even from the treatment given by this doctor she did not get any relief. It is further alleged that as the complainant started motion through her vagina, she was taken to Appollo Hospital at Chennai. There it was detected that the opposite parties had left a pad inside her abdomen which was responsible for her problems. It was also pleaded that there was no necessity to remove fallopian tube and the ovaries by the opposite parties. Attributing medical negligence, a total amount of Rs. 42,55,000/- , the break up whereof has been given in para No. 15 as under, had been claimed:-

BOTH the opposite parties contested the complaint by filing separate written versions. In the written version, opposite party No. 1 alleged that after leaving job as a senior Obstetrician and Gynecologist from Ispat General Hospital, Rourkela, she started rendering free medical service as a gesture of goodwill. It was admitted that the complainant visited the answering opposite party on 27.11.1997 for her uncontrolled bleeding over a prolonged period of time. There was growth in her uterus. She advised her to have an ultra sound and to bring treatment papers of the last delivery. On 1.1.1998, the complainant came only with ultra sound report. She was diagnosed to have enlarged uterus with fibromyoma with bleeding large cervical erosion. The complainant alongwith her husband discussed at length the advantages and disadvantages of surgery vis-"-vis the medical treatment for the above gynecological disorder. Complainant and her husband were not in favour of D&C and CX biopsy. They opted for a radical surgery. It was decided to have total abdominal hysterectomy and bi-lateral salpingo-oophoreetomy. Complainant and her husband opted for Sudha Nusing Home run by opposite party No. 2. Complainant was admitted in that Nursing Home on 1.1.1998 at 2.30 p.m. Since the complainant was bleeding profusely, the answering opposite party prescribed her one unit of asstymin-3 infusion alongwith one unit of 10% dextrose solution. She received the infusion well on 2.1.1998. She was kept under examination. Informed consent for operation was obtained. Replying opposite party performed TAH+BSO on 3.1.1998 under spinal anesthesia delivered by Mrs. Dr. Preeti Patra. Opposite party No. 2 assisted her in conducting operation. Complainant recovered well and was discharged on 9.1.1998. Thereafter, complainant visited the answering opposite party four times between 17.1.1998 to 22.4.1998. It was denied that the complainant complained of unbearable abdominal pain, bleeding and smell in urine as alleged. She claimed that the finding of abdominal pad inside the lumen of the sigmoid colon can never be related to the surgery done seven and half months back. Abdominal pad might be got inside the lumen of the large gut which is a fibro muscular hollow organ, by any other way excepting during the course of total abdominal hysterectomy. Claimed amount of Rs. 42,55,000/- was stated to be exaggerated and liability to pay it was denied. In the written statement, opposite party No. 2 alleged that he had only let out the operation theatre to opposite party No. 1 for conducting operation of the complainant. Complainant is not a consumer qua him. It was admitted that complainant was admitted in nursing home on 1.1.1998 and was operated by opposite party No. 1 for total abdominal mysterilomy bilateral salpigostomy on 3.9.1998. Opposite party never assisted opposite party No.1 in conducting the operation. Fee for the operation was collected through opposite party No.1. Denying medical negligence liability to pay the amount claimed was refuted.

We have heard Shri Jaswant Persoya for the complainant and Shri M. Padhi for opposite party No. 2 and have gone through the written arguments filed by the parties.

IT is admitted case of the parties that the complainant was operated at Sudha Nursing Home on 3.1.1998 and her fallopian tube, ovary of both sides and uterus were removed. Opposite party No.1 alleges that she was assisted in performing the operation by opposite party No. 2. Complainant attributes medical negligence on the part of both the opposite parties on grounds of their having left pad inside her abdomen during surgery and their having removed the fallopian tube and overies unnecessarily. In support of the later ground except her affidavit dated 9th April, 2008 and additional affidavit dated 17th June, 2009, the complainant has not filed or examined any expert witness. In absence of such an evidence, it is difficult to hold the opposite parties negligent in removing the fallopian tube and two overies. As regards the former ground, it may be stated that pursuant to the orders dated 18.3.2009/ 23.4.2009, the Appollo Hospital, Chennai has forwarded the treatment record of the complainant. Existence of pad in the abdomen of complainant was detected and same was taken out at the said hospital on 16.8.1998. Portion of the operation notes dated 16.8.1998 forming part of the treatment record being material is reproduced below:- "Name of procedure: Laprotomy ileal and sigmoid colon resection with removal of foreign body, end to end anastomosis of ileum, end to end anastomosis of sigmoid colon and exteroirsing of sigmoid colon. Findings - A mass seen in the left iliac fossa upto the pelvis. - 2 loops of ileum adherent and stuck to the mass. - Sigmoid colon adherent to the mass. - Whole of mass stuck to the vaginal vault. - No bladder involvement was seen. Procedure: The adherent loops of ileum and sigmoid colon were released. In the course of the release, sigmoid colon was opened and an abdominal pad was seen inside the lumea of the sigmoid colon. Fistulas had forward between the ileal loops and the sigmoid colon, which had inturn formed fistula with the vaginal vault. - Ileum was released and at 2 points, it was resected and end to end anastamosis done in 2 layers with vicryl. - Sigmoid colon was also resected and end to end anastamosis was done. - The vaginal vault opening was very small and it was left as such. No suturing was done. Thorough peritoneal wash was given and the sigmoid colon anastamosis was exterorized through a separate incision in LIF".

It was pointed out by Shri Persoya, Adv. that the surgeon who performed the procedure for removal of abdominal pad on 16.8.1998, has left Appollo Hospital, Chennai and the complainant despite efforts was unable to locate his present whereabouts. Genuineness of the said treatment record being produced from proper custody can not be doubted nor non-filing of affidavit and/ or examining of concerned surgeon for the above reason by the complainant can be fatal to this case. It is not shown by the opposite parties that the complainant had undergone any other surgery of the abdomen between 4.1.1998 to 15.8.1998. Plea taken by opposite party No. 1 in para 7 of the written version that the pad inside the lumen of segmoid colon of the complainant can never be related to the surgery in question performed 7" months ago in view of the procedure done on 16.8.1998 is rejected being without any merit. From the aforesaid evidence it is proved beyond any shadow of doubt that the pad which was removed on 16.8.1998, was left in the abdomen of the complainant only during the surgery conducted by the opposite parties on 3.1.1998.

BY catena of decisions rendered by the Apex Court, law on medical negligence is well settled. A medical practitioner has to exercise a reasonable degree of skill and knowledge. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men. In Achutrao Haribhau Khodwa & Ors. vs. State of Maharashtra & Ors. " (1996) 2 SCC 634, the Supreme Court held negligent the respondent No. 2 doctor who left a mop (towel) inside the abdomen while conducting sterilization operation on deceased Chandrika Bai on 13.7.1963. In her affidavit filed by way of evidence the opposite party No. 1 has reiterated the stand taken in written version that the surgery was conducted both by her and opposite party No. 2, also a doctor. Admittedly, surgery of the complainant was conducted at Sudha Nursing Home owned/ run by opposite party No. 2 for consideration. Opposite party No. 2 is, therefore, equally liable for the consequences arising out of negligence in surgery. Had the opposite parties taken reasonable degree of care and skill the pad may not have been left inside the abdomen of the complainant at the time of surgery. Obviously, both the opposite parties were grossly negligent in leaving the pad which proved fatal, in the abdomen of the complainant for which they can not escape liability for duly compensating the complainant. Coming to the quantum of compensation, the principles of determining compensation are well known (see Oriental Insurance Company Limited vs. Jashuben & Ors. " (2008) 4 SCC 162, Livingstone vs. Rawyards Coal Co. (1880) 5 AC 25, Gobald Motor Service Ltd., Allahabad vs. R.M.K. Veluswami " AIR 1962 SC 1 & R.D. Hattangadi vs. Pest Control (India) (P) Ltd. " AIR 1995 SC 755). It may be mentioned that a total amount of Rs. 42,55,000/- as detailed in para no. 15 of the complaint has been claimed by the complainant. In the intervening period of more than seven months during which the pad remained inside the abdomen of complainant, she must have suffered immense physical pain as alleged by her and the mental agony. She had also spent money on treatment including purchase of medicines etc. Though the complainant has not led convincing evidence to support the said claim in toto, in the facts and circumstances of case, we deem it appropriate to award Rs. 15,00,000/- in lumpsum as compensation to her, liability for payment whereof will be of both the opposite parties. Resultantly, the complaint is partly allowed with cost of Rs. 30,000/- with direction to the opposite parties to pay amount of Rs. 15 lakhs as compensation to the complainant within six weeks" from today. In case the amount is not paid within this period, it shall carry interest @ 12% p.a.