VILAS BENSHAH vs NEW INDIA ASSURANCE CO LTD

-THIS revision petition is filed against the order of the State Commission, Punjab dated 28th July, 2000 in Appeal No. 460/1999 filed by the respondent No. 1, Mrs. Harvinder Kaur against the order dated 1. 4. 1999 passed by the District Forum Jalandhar dismissing the Complaint No. 1515-DF-98. Brief facts of the case are :

RESPONDENT No. 1, Mrs. Harvinder Kaur is complainant and respondent No. 2 is M/s. New India Insurance Co. Ltd. , is a proforma party. The respondent No. 1/complainant had two caesarean operations in the year 1991 and 1993. She visited the petitioner''s Nursing Home on 5. 9. 1997 for ante natal check up, i. e. , five days prior to the delivery. On examination, it revealed that she was carrying twin babies. She got admitted on 10. 9. 1997 at 8. 00 a. m. Since respondent No. 1 had already undergone two caesarean operations (Vertical infra-umbilical incisions), the uterus was very large due to twins and had considerably descended and there were also adhesions of previous two surgeries. The petitioner made the incision in a lower segment and babies were delivered and respondent No. 1 was discharged on the 9th post operative day, i. e. , on 19. 9. 1997 (Annexure P-4 ). The petitioner had a team of doctors who conducted the operation, i. e. , (i) petitioner, Chief Surgeon, (ii) Dr. Anu Arora-First Assistant Doctor to keep complete the notes of the operation, (iii) Dr. Harmeet Kaur, in-charge of the operation trolley, (iv) Dr. Upma Ralhan, M. D. Anaeshthetist, (v) Dr. Satvinder Singh, M. D. Paediatrics. After operation, she was advised to take Hemantinics, calcium and B complex. She was not having any infection or any pain at the time of discharge and hence no antibiotics or pain relievers were prescribed. As per the case sheet, she was advised and also had taken short wave diathermy that is mild heat therapy for recovery of internal wounds.

After the discharge, the respondent No. 1 again came on 27. 9. 1997 for routine follow up and as advised on discharge slip, i. e. , after two weeks for mother and baby check up and immunisation day. She was again suggested to take short wave diathermy which she had taken. Again on 27. 9. 1997 except a usual complaint of discomfort and pain due to large bloated uterus and operation, there was no other complaint of any pain from the respondent No. 1.

IT is the case of the respondent No. 1 that she continued to have acute pain in the abdomen after the caesarean delivery and hence consulted one Dr. Ranbir Singh of Jalandhar. On the advice of Dr. Ranbir Singh, she got an x-ray and scan of the abdomen and needle tests done on 12. 11. 1997 from Bhangu Scan and x-ray clinics. It is contended that there was some foreign object (mass) at the left side of the abdomen just above the umbilicus level like a ball and also noticed thick pus. Respondent No. 1 was admitted on 18. 11. 1997 in Bawa Hospital. She was discharged on 29. 11. 1997 and discharge certificate was issued by Dr. Ramesh Kashyap of Bawa Hospital.

THE complaint of the respondent No. 1 is that she suffered pain and had to go through two operations due to a sponge left in her abdomen. She further submitted that she could not attend to her twins due to the surgeries and its after effects. Had the petitioner been cautious about the complaint of pain made by the respondent No. 1, she could have suggested scanning, x-ray and needle test, which she did not do. Instead of exercising a reasonable degree of skill, care and knowledge, petitioner routinely suggested short wave diathermy and pain killers. The District Forum held that respondent No. 1/complainant, prima facie, did not prove medical negligence and dismissed the complaint. The State Commission allowed the appeal of the complainant and directed the petitioner to pay Rs. 1 lakh as compensation for mental agony and suffering, Rs. 10,000 as costs of litigation. The amount under the head of actual expenses calculated at Rs. 17,025 was awarded with interest @ 15% p. a. from the date of filing of the complaint till its realisation. It was held that it is proved beyond doubt that respondent No. 1 had to be operated by Bawa Hospital for removal of the sponge from the abdomen which was negligently left during the operation by the petitioner.

PETITIONER''s case is that she was not aware of any treatment that has been given by other doctors after operation and that she cannot be held responsible for the events which took place at the later stage.

LEARNED Counsel for the petitioner submitted that since the respondent No. 1 has gone through the caesarean operation for two children and, thereafter, Tubectomy operation, there would be some discomfort for sometime for which short wave diathermy treatment was given and asked her to come for regular check ups. Since the respondent No. 1 was not having any infection or pain at the time of discharge and mild heat therapy would help for recovery for internal wounds at this stage did not carry out any further tests. It was asserted by the petitioner that no sponge was used by her during the caesarean operation as it is old and outdated practice. The petitioner does not use intra-abdominal swabs or packs as they are abrasive to tissues, increase the risk of adhesives and decrease the beneficial effect of anti bacterial properties of the amniotic fluid. There is always a fear that once the swab is inserted in the abdomen, it is likely to be forgotten. The use of the sponge on the aforesaid basis was even condemned during the World Congress of Gynaecology and Obstetrics, Montreal, September, 1994 in which she was active participant. Complete proceedings of the operation were recorded by Dr. Anu Arora and Dr. Harmeet Kaur, who is the incharge of the operation trolley. The record does not show the usage of sponge or swab during the caesarean operation. The proceedings further show that before closing the operation Dr. Harmeet Kaur has duly endorsed the following on the proceedings sheet about the contents of the operation trolley. "count Complete"

This submission was supported by all the four doctors, who were assisting the petitioner in the operation on an affidavit.

IT is further submitted by the petitioner that report of the scan dated 12. 11. 1997 indicates that there was a mass in the left side of the abdomen above the umbilical whereas the said portion was not opened or touched by the petitioner in view of the fact that lower segment caesarean section was done. Lastly, to prove the case, the petitioner brought to our notice that spong radio-opaque substance and x-ray report dated 3. 6. 1998 of M/s. Bhandari x-ray Clinic, Jalandhar, which is produced as under : "radio-opaque metallic wire seen in the x-ray sponge. "

IT is contended by the petitioner that the certificate issued by Dr. Ramesh Kashyap, who was assisting Dr. P. S. Bakshi cannot be relied upon as affidavit was not filed nor was he cross-examined despite the fact that the respondent No. 1 had obtained summons from the District Forum to produce him as a witness. It is further contended that the sponge swab used by her team are radio opaque whereas the said removed mass was not radio opaque and further the mass was 57 mm to 60 mm across in size while the size of the swab previously used by them prior to 1994 was 41cm x 28 cm. Findings : We have gone through the recrod and perused the orders of the District Forum and the State Commission and heard both the parties.

IN our view, there is no reason to disbelieve the petitioner, who performed the operation. She has specifically stated that at the time of caesarean operation, she has not used any swab/sponge and that practice of placing swab is discontinued since years by the trained Gynaecologists.

IN our opionion, respondent No. 1/complainant went to Bawa Nursing Home for second operation and the mass that was removed during the surgery did not clearly show that it was sponge. It was recorded by the surgeon Dr. P. S. Bakshi (Annexure P-12) that some pus, necrotic material and sponge like substance were removed. We reproduce herein under the entire extract from the bed head ticket of Mrs. Harvinder Kaur on the date of discharge : "on palpation an inter abdominal mass measuring 3" in diameter is palpable in the left para-umbilical region.-Movement of the mass restricts and it does not move with respiration.-Heart sound and breath sounds normal.-Ultrasound done by Dr. J. S. Bhangu on 13. 11. 1997.-Findings of Ultrasound scan.-Findings are suggestive of a mass in left side abdomen just above umbilicus level, the nature of which is like a faecolith or faecal ball or a dermoid cyst. Operative Notes-Left paramedian incision - Exploratory Laparotomy done. Loops of Bowel and Omentum were matted together in left paraumbical region. On separation of the loops of Bowel some pus, necrotic material and sponge like substance was removed. After careful dissection the interloop adhesions were lysed. The resultant cavity was irrigated with antibiotic solutions, drain left at the site closure of the peritoneal cavity and abdomen in layers after complete hemostasin. "

Further Dr. P. S. Bakshi, who did the second operation on the respondent No. 1 testified as under : "no test was got conducted regarding the material removed from the abdomen cavity of the patient. The material removed during the surgery of the complainant was taken out from peritoneal cavity from the left para umbilical region. No histopathology was got done regarding the material removed from the body of the complainant. "

Considering the fact that the mass removed was never sent for analysis which is surprising as any foreign body or such mass removed would normally be sent in the first instance for further test for malignancy. This itself creates a doubt. Dr. Bakshi himself admitted that the mass removed was not sent for histopathology report and this does not support and help the pleadings of the respondents as no reliable evidence is placed by them. Further, Dr. Bakshi who performed the surgery has not been cross-examined and has not filed any affidavit.

THE entire case has been decided on the statement of junior/assistant Dr. Ramesh Kashyap, who was also not cross-examined. In view of the findings that the alleged swab has neither been produced/preserved nor has it been proved that this indeed is a swab, we are unable to agree with the findings of the State Commission, which has not considered evidence on record. Further, the contention of the petitioner that modern medical practice does not support use of swabs is borne out from the book Technique of Caesarean Section : the Misgav Ladach method by M. Stark of Women''s Health Today, Edited by D. R. Popking M. D. and L. J. Peddle, M. D. : "automatic abdominal retractors are not necessary, since the Joel-Cohen incision gives easy access to the lower segment of the uterus. We do, however, find it helpful to use a Fritsch hand retractor which facilitates the handling of the lower segment. Swabs are not placed in the abdomen because they are abrasive to the tissues, increase the risk of adhesions and decrease the beneficial effect of the antibacterial properties of amniotic fluid. "

WE find there is no negligence or deficiency in service on the part of the petitioner and we agree with the order passed by the District Forum which has rightly dismissed the complaint. In view of the above discussion, we set aside the order of the State Commission. The revision petition is allowed. There shall be no order as to costs. Revision Petition allowed.