Oral Order: (Thota Ashok Kumar, Member)
1. This is a complained filed u/s 17(1)(A)(i) of the Consumer Protection Act for a direction to opposite parties no.1 to 3 to pay medical expenditure of Rs.5 lakh, compensation of Rs.50 lakh with interest @ 18% per annum from 15.03.2011 to 15.11.2012 and costs of Rs.50,000/-.
2. The case of the complainant in brief is that as she was suffering from severe stomach pain she approached the opposite party no.1 hospital where the opposite party no.3 doctor examined her and advised surgery for Vault Prolapsed Abdominal Repair Mesh and on 15.03.2011 the complainant was operated in the opposite partyno.1 hospital by the second and third opposite parties and was discharged on 23.3.2011. The said operation was conducted in the opposite party no.1 hospital under Arogyashree Scheme and the opposite party no.1 claimed the amount from the opposite party no.4 under the said aarogyashree scheme. On 16.04.2011 due to pain, the complainant approached the opposite party no.3 who advised her to take complete bed rest. The complainant approached the Osmania General Hospital Hyderabad wherein after examination by the doctors found some clot in the stomach and she was referred for detailed examination. Later she got examined through MNJ Hospitals at Red Hills, Hyderabad on 12.08.2011 and in the scan report they found carcinoma caecum in the stomach. The complainant again on 18.08.2011 approached KIMS Hospital where after detailed examination found chronic non-specific inflammation with ulceration of giant cells in the stomach and advised her for re-surgery to remove the same. On 27.08.2011 the complainant approached Omni Hospitals, Hyderabad where she was re-operated wherein it was found that two surgical mops were left in the stomach while conducting the operation at the opposite party no.1 hospital. The complainant was discharged from Omni Hospital on 7.9.2011. The report dated 04.09.2011 issued by Dr.B.S.Rao of Omni Hospitals reveals inflammatory mops in right para colic guilty and around calcium, mass contains ileal loops, omentum, 2 surgical mops and displaced previous mesh at right side of rectum. The complainant lodged a complaint before the P.S. Naryanaguda, Hyderabad on 05.09.2011 who registered the case vide FIR NO.313 of 2011 under section 337 of IPC. The complainant got issued a legal notice to the opposite parties claiming a compensation of Rs.50 lakhs from opposite parties and they gave reply stating that the said mops might have been left by the doctors either in the Hospital at Nizamabad or KIMS after conducting of surgery of the opposite party no.3 at the opposite party no.1 hospital. As the opposite parties denied their liability to pay the compensation and moreover the opposite parties no.1 to 3 are attributing malafides against the complainant, the complainant filed this complaint with the reliefs as stated above.
3. The opposite party no.1 filed written version contending that the opposite party no.3 conducted surgery after taking consent from her. During post-operative period between 15.03.2011 and 24.03.2011 was uneventful and all the post-operative reports revealed that the complainant returned to normalcy and therefore she was discharged. On 16.4.2011 the complainant came to the opposite partyno.1 hospital even at that time no abnormalities were noticed and thereafter the complainant did not turn upto the opposite party no.1 hospital. The doctors in Osmania General Hospital also did not report the existence of surgical mops. It is obvious that a person could not have been survived between 15.4.2011 and 29.08.2011 with surgical mops within the system. The report of Dr.B.S.Rao of Omni Hospital is fabricated at the instance of the complainant. The complainant did not come back to the opposite party no.1 with any serious ailment. There is no professional negligence or deficiency in service on behalf of the opposite party no.1 and sought for dismissal of the complaint.
4. The opposite party no.2 filed written version contending that the complaint is neither maintainable in law nor on the facts. The opposite party no.2 is no way concerned with the said case. The opposite party no.2 neither operated the complainant nor was concerned with any of the alleged subsequent events. The complaint is liable to be dismissed for misjoinder of parties. Hence, the opposite party no.2 sought for dismissal of the complaint.
5. The opposite party no.3 filed written version contending that the complaint is filed without any valid material to show that there is deficiency of service and negligence on the part of the opposite party no.3. The matter has to be referred to an expert medical body and after receiving the report only matter has to be proceeded. The opposite party no.3 contended that she completed her MBBS in the year 1987 and completed housemen ship in the year 1988 and thereafter she pursued MD Obstetrics and Gynaecology from Osmania Medical College, Hyderabad. During 1996 she was appointed as Civil Assistant Surgeon and worked at Mahaboobnagar, Osmania Hospital, Gandhi Hospital, Fever Hospital and also worked as INcharge-HOD in Nizamia Maternity Hospital Charminar. Now she is working as Assistant Professor (OBGY) in Osmania Medical College and working in Government Maternity Hospital as Assistant Professor (OBGY). The opposite party no.3 is not working as doctor in opposite party no.1. However, at the request of the opposite party no.1 she attended the surgery of the complainant. The complainant approached on 5.3.2011 and surgery was conducted on 15.03.3011 and the procedure adopted for the surgery is fixing a foreign mesh on the periosteum of the sacral promontory. Vertical limb of the mesh is anchored to the periosteum of the sacral promontory and the horizontal limbs of the mesh are anchored to the vault anteriorly and posteriorly. The entire surgery was video shooted as per the prescribed norms of the Aarogya shree program. The opposite party no.3 attended the surgery with utmost care and caution and the complainant was discharged from the hospital on 23.03.2011 and she explained to the complainant about the post operation care and medicines. There is every chance of having pain and fever since the body has to adopt itself to the mesh arranged in the body. The complainant approached the opposite party no.1 hospital to post-operative check-up and the opposite party no.3 was present there and examined the complainant on 16.04.2011 and found that all her health conditions were normal. In view of the own averments made by the complainant that she contacted various hospitals and got examined she might have got operated. Hence nothing can be attributed to the opposite party no.3 since the opposite party no.3 conducted operation on 15.03.2011 and the complainant was hale and healthy till August 2011. If the mops are left during March 2011 itself, the patient will not be healthy for five months. The complainant filed a report of MNI Institute dated 12.08.2011 at page no.23 of the material papers wherein it was mentioned that uterus as normal but the complainant’s uterus was removed long back and she was hysterctomised patient. In the report dated 27.08.2011 of Omni Hospital it was mentioned as Post hysterectomy status which shows that her uterus was removed. The complainant approached the opposite party no.1 complaining vault prolapse which is a complication arising after hysterectomy due to poor surgical technique while removing uterus or due to intrinsic tissue asthenia for the patient. The opposite party no.3 conducted a surgery of abdominal sacro colpopexy which means repair of the vault prolapse through abdomen with mesh. In none of the reports it was mentioned that there was surgical/cotton mops and in none of the reports it was mentioned that there was negligence on the part of the opposite party no.3. The complainant has filed the medical reports and scan reports of Omni Hospitals dated 27.08.2011 which also do not show that there are surgical mops but on 04.09.2011 Dr.B.S.Rao of Omni Hospitals issued a hand written letter stating that there were two surgical mops and displaced previous mesh at right side of rectum. As per the findings of Dr.B.S.Rao and other doctors of Omni Hospital when the patient was initially admitted the patient is conscious, coherent, afebrile, BP is 100/70 HG, pulse rate is 90 per minute, SPO2 99%. Hence it is clear that the patient’s conditions is normal on 27.08.2011. The complainant has not submitted the requisite documents, viz., case history, diagnosis done, pathology reports, case sheets etc., of all the hospitals and thus prayed for dismissal of the complaint holding that there is no negligence on her part.
6. The opposite party no.4 filed written version contending that the network hospital i.e., opposite party no.1 and the trust i.e., opposite party no.4 were governed by the memorandum of understanding (MoU) and empanelment guidelines of the trust. AS per MoU the network hospitals are responsible for all the treatment to the beneficiaries. The opposite party no.4 has not received any complaint from the aggrieved party for the alleged incident in the matter as it has its own machinery to redress or resolve the complaints. As per the MoU the hospital alone is responsible for the acts and deeds committed by it and the trust is not liable for any acts and deeds committed by the hospital while rendering the services. The hospitals are not run by the Aarogyasri Health Care Trust and the trust is utilizing the services rendered by the network hospitals for the benefit of the poor patients who cannot afford the cost of treatment. There is no provision in the scheme for reimbursement of expenses to the complainant but it is a scheme to provide cashless treatment to persons having white ration cards and are below the poverty line. The opposite party no.4 is the mediator or facilitator and its role in terms of the MoU is limited to process the pre-authorisation and the claim. The opposite party no.4 role was the facilitator between the beneficiary and the insurance company as such it cannot be fastened with any liability. Hence, the opposite party no.4 prayed to dismiss the complaint.
7. Affidavits in lieu of evidence were filed by the complainant and the opposite party no.3 and the complainant got marked Exs.A1 to A27 and opposite party No.3 filed Ex.B1 and B2 and further Exs.C1 to C3 were also filed.
8. The counsel for the complainant and O.P.No.3 filed their written arguments in support of their respective contentions in detail.
9. The points that arise for consideration are :
1. Whether there was any negligence or deficiency in service in treating the patient?2. To what relief?
10. The case of the complainant that she was suffering with vaginal remnant which was painless and was causing inconvenience to her daily life and on examination by the local doctors they have advised her to approach the opposite arty no.1 for further detailed examination. On her approach to the opposite party no.1 hospital the opposite party no.3 who was attached to in the said hospital after medical examination conducted surgery for vault prolapsed abdominal repair mesh and was discharged from the opposite partyno.1 hospital on 23.03.2011 prescribing post-operative treatment and medicines. On 16.04.2011 again the complainant approached the opposite party no.1 due to abdominal pain and the opposite party no.3 who examined the complainant advised her to take complete bed rest. Thereafter when the complainant was unable to bear the pain in abdomen she went to Osmania General Hospital where the doctors in the scan report found some carcinoma caecum in the stomach. The complainant went to KIMS Hospital on 18.08.2011 for the second opinion and found Chronic non-specific inflammation with ulceration of giant cells in the stomach and advised her for re-surgery to remove the same. Later the complainant approached Omni Hospital where she was again re-operated and during surgery they found surgical mops in the stomach and the same was mentioned in the discharge summary and a certificate has also been given by Dr.B.S.Rao in the said context.
11. The main contest of the opposite party no.3 surgeon is that there was no professional negligence on her part and that it was highly impossible for the patient to survive if at all the surgical or cotton mops were existing for five months and that she did not leave any surgical mops as alleged and that no importance need to give to alleged hand written certificate said to have issued by Dr.B.S.Rao of Omni Hospital.
12. There cannot be any dispute with regard to the legal proposition laid down by the Hon’ble Supreme Court of India in C.P. Srikumar (Doctor) V.S.Ramanujaiah reported in 2009(4) Supreme 573 equivalent to 2009(2) CPJ 48 (SC) that it is for the complainant to establish the allegations with acceptable evidence and in the absence of the same the complaint deserves to be dismissed. In view of the said decision the burden is on the complainant to prove with dependable evidence that the third opposite party after the surgery conducted on her left surgical mops in her abdomen and as a result of it she was subjected to physical discomfort and mental agony so as to claim compensation in connection with the alleged medical negligence. The third opposite party contended that even in scan reports of KIMS Hospital submitted by the complainant there is no mention as to existence of the mops but sometimes it is quite possible for the scanner not to detect the mops and for that no credence need be given to the contention fo the opposite party no.3. It is true that after the surgery conducted by the opposite party no.3 the complainant visited several hospitals but there is no dependable evidence or circumstances on record that after such a surgery till again underwent surgery at Omni Hospital she was subjected to a surgery so as to infer that there was possibility for the doctors of other hospitals negligently to leave the cotton mops in her abdomen. There is clinching and acceptable evidence from Ex.A6 discharge summary dated 7.9.2011 issued by Omni Hospitals, Hyderabad and Ex.A7 dated 4.9.2011 handwritten notes of Dr.B.S.Rao that previous mesh was displaced at right side of the rectum and that two surgical mops were removed from the abdomen of the complainant and it was diagnosed that it is case of intro-abdominal abscess with foreign body (surgical mops) and displaced mesh. Absolutely the Omni Hospital authorities and Dr.B.S.Rao had no reasons to issue such a discharge and written notes without there being any truth in it and the opposite parties did not impeach the evidentiary value of the said documents by any convincing means. The said discharge summary and notes are also supported by newspapers paper clippings etc., which are marked on behalf of the complainant. It is not the allegation of the complainant that the opposite party no.3 did not conduct surgery properly but her grievance is that she left the mops in her abdomen after the surgical procedure which stands proved clinchingly from the above documents. Self-serving evidence of the opposite party no.3 in the said context is not at all helpful to her in any manner because to escape her liability there is every possibility of her giving twisted version. Men may lie but the circumstances do not. Due to laps of time there was no possibility for the Omni Hospital authorities to preserve the removed mops from the abdomen of the complainant therefore on account of non-production of the said mops no adverse inference need to be drawn. An attempt was also made by the complainant in the said context but for the reasons beyond her control the mops did not see the light of this commission and Exs.C1 to C3 establish the said aspects.
13. The learned counsel for the opposite parties had argued that the complainant was not successful in proving her case. He has submitted various citations to substantiate that in a case of deficiency in service on the part of medical professionals, the burden is heavy on the complainant to prove that there was deficiency in service. The Hon’ble Supreme Court in 'V.KishanRao Vs. Nikhil Super Speciality Hospital ' (2010(5) Supreme Court Cases 513) held that the Consumer Protection Act 1986 is intended to give speedy and simple redressal of consumer disputes and the said purpose cannot be defeated or diluted by super imposing requirements of having expert evidence in cases of civil medical negligence. Further expert evidence is required only when the negligence cannot be proved by reliance on literature on medical field or otherwise and in the instant case the complainant has proved her case based on the discharge summary of Omni Hospital and the notes of Dr.B.S.Rao. It is also her case that the case on hand is a best example for invoking the principle of ‘Res ipsaloquiter’ as the complainant was a normal lady when she was subjected to the surgery by 3rd opposite party and she suffered physical discomfort and mental agony and trauma after the surgery as the mops were left in the abdomen. If due care and caution was taken by the third opposite party doctor the complainant could not have suffered discomfort and mental agony rather than undergoing frequent surgery thereafter.In this respect, we rely on the decision of the Hon’ble Supreme Court in Savitha Garg Vs. Director, National Heart Institute (2004 (8) Supreme Court Cases 56) where it is held that 'once the complainant has discharged the initial burden that the hospital / doctor was negligent, then in that case the burden lies on the hospital / doctor to show that there was no negligence involved in the treatment.' In the instant case we are satisfied that the complainant has proved her case and the 1st and 3rd opposite parties have failed in proving that there was no negligence at all on their side. Their spacious contention that the complications in the post-operative period are common complications only can in no way be accepted. The damage that was caused by leaving the cotton mops in the abdomen and subsequent conduct of surgery leads to the conclusion of negligence and deficiency in service in their actions. As observed by the Hon’ble Apex Court in 'Spring Meadows Hospital Vs. Harjol Ahluwalia 1998 (4) SCC 30 very often in a case of compensation arising out of medical negligence, a plea is taken that it is a case of bonafide mistake / accepted complications which under certain circumstances may be excusable, but a mistake which would tantamount to negligence or deficiency in service cannot be pardoned.' In this case the negligence and carelessness are proved beyond any shadow of doubt. In this case the principle of res-ipsa-loquitor also applies in its strict sense. In Prasanth S. Dhananka Vs. Nizam Institute of Medical Sciences (1999 (1) CPR 42 (NC). The National Commission has quoted the observation of the Supreme Court thus 'gross medical mistakes will always result in a finding of negligence. Even delegation of responsibility to another may amount to negligence in certain circumstances. A consultant could be negligent whether he delegates the responsibility to his junior with the knowledge that the junior was incapable of performing of his duties properly'. In the decision Swami Vs. Mathews (1968) (1) MALLJ 138 it is held that 'every person who enters into the learned profession undertakes to bring to the exercise of its reasonable degree of care and skill'. The doctor holding out ready to give treatment does undertakes that he is possessed of skill and knowledge for that purpose. The doctor must, therefore, bring to his task a reasonable degree of skill and knowledge and must also exercise reasonable degree of care. The Supreme Court in Dr. Lakshman Balakrishna Joshi Vs. Dr. Trimbek Bapu Godbola & Another AIR 1969 SC 128 (1969) has laid down 3 guidelines to the members of the medical profession regarding the consultation and treatment of any patient. They are:
(a) a duty of care in deciding whether to undertake the case;
(b) a duty of care in deciding what treatment to give; And
(c) a duty of care in the administration of that treatment. A breach of any of these duties gives a cause of action for negligence to the patient. The negligence has many manifestations – as stated in Black’s Law Dictionary ascollateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, willful or reckless negligence etc. The 2nd opposite party doctor has committed carelessness and negligence during the course of the surgery of the complainant. Thus on going through the entire facts, evidence, arguments and circumstances of the case we find that the complainant is successful in substantiating her case of medical negligence against the 1st and 2nd opposite party who had committed negligence and deficiency in service as per the provisions of the Consumer Protection Act.
14. The complainant has sought for compensation of Rs.50 Lakhs for the negligence and deficiency in service of the opposite parties and another sum of Rs.5,00,000/- towards cost of medication and treatment with costs of Rs.50,000/- for the proceedings before this Commission. We have already found that there was deficiency in service and negligence on the part of the 1st and 3rd opposite parties but did not make out for such amounts. The complainant is a white ration card holder and according to her itself as the first opposite party is covered under the Arogyashree Health Scheme of the fourth opposite party, the entire amount was paid by the fourth opposite party to the first opposite party hospital on her behalf. Even though she filed bills pertaining to other hospitals it is not clear as to whether the
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said amount was also paid by the government as she is a white ration card holder. When she is a woman how she could raise such funds has also not been clarified. Therefore, the claim of the complainant with regard to medical reimbursement could not be appreciated. 15. In view of the above analysis we are of the opinion that the complainant is eligible for some compensation. In this case the complainant had to undergo surgery at another hospital apart from the major surgery under by her in the first opposite party hospital. The sufferings of the complainant/ patient are due to the carelessness and deficiency of service of the 3rd opposite party doctor. Due to her negligence the complainant has to suffer abdominal pain for no fault of her. The real reason for pain is that the 3rd opposite party mistakenly and carelessly left the cotton mops in the abdomen of the complainant/patient. In such circumstances she had been suffering from pain and the said sufferings due to this wrongful act of the opposite party no.3. Since the operation was conducted in the opposite party no.1 hospital by the opposite party no.3 the first opposite party no.1 also jointly and severally liable to answer the claim of the complainant along with the opposite party no.3. However the complainant did not make out any case against the opposite party no.2 medical practitioner as he neitheroperated her nor was concerned with any of the subsequent events. The opposite party no.4 is the mediator or facilitator and its role in terms of the MoU is limited to process the pre-authorisation and the claim. The opposite party no.4 role was the facilitator between the Beneficiary and the insurance company as such it cannot be fastened with any liability and therefore question of making them liable to pay awarded compensation does not arise. We direct that the 1st and 3rd opposite parties are jointly and severally liable to pay Rs.50,000/- together with costs of Rs.5,000/- 16. In the result the complaint is partly allowed directing the opposite parties no.1 and 3 jointly and severally to pay compensation of Rs.50,000/- and also costs of Rs.5000/- to the complainant within four weeks from the date of receipt of the order and in default it carries interest @ 9% per annum till realisation. Rest of the claim of the complainant against the opposite parties no.1 and 3 and total claim against the opposite parties no.2 and 4 is dismissed without costs.