Date of filing :21-10-2008
Date of order :27-01-2009
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.211/08
Dated this, the 27th day of January 2009
PRESENT
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P.RAMADEVI : MEMBER
SMT.P.P.SHYMALADEVI : MEMBER
Sajini,
W/o.Raghavan,
Kumble, Koipady Kadappuram, } Complainant
Kasaragod. Dist.
(Adv. K.Sreekanthashetty, Kasaragod)
Dr.Prema D’ Cunha,
Obstetrician & Gynecologist, } Opposite party
Regal Arch, Bendoorwell,
Mangalore- 575 002.
(Exparte)
O R D E R
SRI.K.T.SIDHIQ, PRESIDENT
This is a case of medical negligence in which the principles of res ipsa loquitor can be applied to find deficiency in service on the part of opposite party in her treatment.
The case of the complainant is as follows:
Complainant Sajini was suffering from stomache and back ache consulted the opposite party, who is an obstetrician and gynecologist. She advised hysterectomy as the remedy. Opposite party suggested the Govt. Lady Goschen Hospital, Mangalore to perform surgery at a lesser expense. The opposite party collected Rs.500/- as her clinical charge. On 22-1-07 complainant admitted in Govt. Lady Goschen Hospital and after the hysterectomy she discharged on 28-1-07. Even after hysterectomy complainant is not relieved from pain. The complainant continued treatment with opposite party but was of no relief. Again opposite party advised the complainant to admit at Coloco Hospital. Accordingly complainant admitted there as I.P. on 28-02-07 and treated till 5-3-07 and from there complainant was treated by opposite party and Dr. Rajesh Ballal. Even then the pain persisted. Since the abdominal pain became unbearable, she consulted Dr. Prasad Menon of Kasaragod Institute of Medical Sciences, Kasaragod. Dr. Prasad Menon after examinations and investigations conducted a surgery and removed one Metallic Foreign Body from the formerly operated region. After removal of the foreign body the complainant relaxed after 19 months of initial surgery. Alleging deficiency in service on the part of opposite party who conducted the hysterectomy, complainant filed this complaint claiming a compensation of Rs.4,90,000/- with cost of Rs.5000/-.
2. Notice to opposite party issued by registered post. Even though notice was served, opposite party remained absent. Hence opposite party was set exparte.
3. Complainant filed affidavit reiterating what is stated in her complaint in support of her claim. Exts A1 to A5 and MO-1 is marked. The doctor who performed second surgery upon the complainant was examined as PW2. Complainant heard and documents perused carefully.
4. Ext.A1 is a discharge summary issued from Govt. Lady Goschen Hospital, Managalore. Ext.A2 is the discharge summary issued from COLACO Hospital, Mangalore. Ext.A2 shows that the complainant was admitted and treated there as IP from 28-02-07 to 5-3-07 by the opposite party and Dr.Rajesh Ballal Ext. A3 is another discharge summary of the complainant issued from COLACO Hospital. Mangalore. It shows that the complainant admitted and treated there from 19-05-08 to 20-05-08 by Dr.Rajesh Ballal. In Ext.A2 also the complaints of patient Sajini was pain on abdomen, Left Lumbar and Flanks. Ext.A4 is a discharge summary issued to the complainant from Kasaragod Institute of Medical Science, Kasaragod. There also the complainant had approached with complaint of back pain and on CT Scan a metallic FB (Foreign Body) is seen in intra abdominal Pelvic region. As per Ext.A4 it is seen that the Metallic Foreign Body has removed by Laproscopic Surgery (minilap) on 13-7-08 under General Anesthesia. It is seen noted in Ext.A4 that FB was entangled in the omentum near Pelvic fascia intestine adherent to it. Same separated an FB removed by minilap. Ext.A5 is the CT scan report of the complainant taken as per the advice of PW2.
5. MO-1 is the metallic foreign body removed from the abdomen of the complainant.
6. PW2 Dr.Prasad Menon, an Orthopeadic Surgeon attached to Kasaragod Institute of Medical Science who removed the foreign body that is marked as MO-1 identified it as a piece of surgical instrument used to retract muscles during surgery. He also stated that MO-1 may come inside the body during the earlier surgery done to the complainant. PW2 further deposed that the due diligence and care of a doctor in surgical operation is to take sufficient care to remove all foreign bodies from the operated region before suturing.
7. Therefore it is clear that the opposite party has not take due negligence and care on her operative procedure and treatment administered to the complainant. Exts.A2 to A5 the discharge summaries issued from different hospitals shows that complainant was subjected to prolonged pain and sufferings during those periods. There is no contra evidence to show that the agony and sufferings caused to the complainant was due to any other ailment or complication. The act of the opposite party amounts to deficiency in service as envisaged under the Consumer Protection Act. Opposite party is therefore liable to compensate the complainant Sajini for the mental agony and prolonged pain and sufferings caused to her.
8. The Hon’ble Supreme Court in one of its comprehensive judgment discussing the maintainability of the cases against medical practitioners has held that the cases which do not raise any complicated questions and deficiency in service may be due to obvious faults which can be easily established need not be referred to civil court and those can be adjudicated before the Fora itself. The Hon’ble Supreme Court has illustrated some examples of such obvious faults which can be established easily such as removal of the wrong lumb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking in to the out patient card containing the warning or use of wrong gas during the course of an anesthesia or leaving inside the patient swabs or other items of operations equipments after surgery. (INDIAN MEDICAL ASSOCIATION v. V.P.SANTHA III 1995 CPJ 1 (SC)
9. So as per the illustrations cited in the judgment supra it is very clear that leaving inside the patient swabs or other items of operating equipments after surgery is an obvious fault on the part of the doctor under whose supervision the surgery is performed and it amounts to deficiency in service.
10. Complainant Sajini aged 47 years subjected to total abdominal hysterectomy by opposite party on 23-01-07 and discharged on 28-01-07 with a metallic foreign body insider her abdomen. She has to carry the same till it was removed by PW2 on 13-07-08. There is no doubt that she might have undergone much pain and sufferings through out that period which is evident from her repeated hospitalisations. Further she had to undergo another surgery by PW2 to remove the foreign body. Definitely she shall be adequately compensated for the sufferings that caused due to the deficient service of opposite party.
Therefore we allow the complaint and the opposite party is directed to pay Rs.1,25,000/- (Rupees one lakh twenty five thousand only) to the complainant as compensation with a cost of Rs.3000/- within 30 days from the date of receipt of copy of order. Failing which the said amount of compensation will carry interest @ 9% per annum from the date of complaint till payment.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Exts.
A1.Discharge Summary of Govt.LadyGoschen Hospital Managalore.
A2.Discharge Summary of Colaco Hospital, Mangalorel.
A3. Discharge Summary of Colaco Hospital, Mangalorel.
A4. Discharge Summary of Kasaragod Institute of Medical Sciences, Kasaragod
A5. C.T.Scan Report(Kasaragod C.T. Scan & Diagnostic Centre Pvt.Ltd, Kasaragod)
MO-1. Metallic Foreign Body
PW1. Sajini
PW2. Dr.Prasad Menon
Sd/- Sd/- Sd/-
MEMB ER MEMBER PRESIDENT
Pj/ Forwarded by Order
SENIOR SUPERINTENDENT
D.o.F:21/10/2008
D.o.O:30/6/2011
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.NO. 211/08
Dated this, the 30th day of June 2011
PRESENT:
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P.RAMADEVI : MEMBER
Sajini,W/o Raghavan, Kumble,
Koipady Kadappuram,Kasaragod : Complainant
(Adv.Srikanta Shetty,Kasaragod
1.Dr.Prema D’Cunha, Obstetrician & Gynecologist,
Regal Arch, Bendoorwell, Mangalore 575002.
(Adv.K.Vinodkumar,Kasaragod)
2.Orinetal Insurance Co.Ltd,
City Branch-1, Kulyadi Building, : Opposite parties
K.S.Rao Road, Hampankatta, Mangalore.
(Adv.S.Mahalinga Kasaragod)
ORDER
SRI.K.T.SIDHIQ : PRESIDENT
This complaint again came for our consideration as per the judgment of the Hon’ble State Commission in Appeal No.134/09. The Hon’ble State Commission allowed the above appeal on 26/8/09 and remanded the case permitting the opposite party to file version and contest the case since the earlier order passed by the Forum was an exparte one.
Briefly stated the facts leading to the filing of this complaint are as follows:
Complainant was the patient of the opposite party . She was suffering with stomach and back ache always and hence consulted with opposite party and the opposite party advised hysterectomy (removal of uterus) by surgery. Hence to conduct the surgery with minimum expense the opposite party suggested the Govt.Lady Goschen Hospital Mangalore. The opposite party collected ` 500/- from her clinic as profession charge. The opposite party is an Assistant Medical Officer of the said hospital. The complainant was admitted as an in patient on 22/01/07 at Govt.Lady Goschen Hospital Mangalore and after the hysterectomy discharged on 28/01/07. The hysterectomy was performed by opposite party. After the surgery also complainant continued suffering with pain in her abdomen and back etc. The complainant goes on continuing the treatment of the opposite party but there was no relief. Again the opposite party advised the complainant to admit at Colaco Hospital,Mangalore. Hence the complainant was admitted at Colaco Hospital as inpatient on 28/2/07. There the complainant was treated by opposite party and Dr.Rajesh Ballal and profession charges were paid to both them. since there was no relief in the treatment, again complainant was admitted in Colaco hospital on 19/05/08 and discharged on 20/05/08. During these treatment days several pain killer tablets were consumed by the complainant but was without any relief. Hence she consulted Dr.Prasad Menon of Kasaragod Institute of Medical Science Kasaragod. Dr.Prasad Menon after careful examination of the complainant got investigations and finally removed one metallic foreign body from the previously operated region. The complainant was admitted as in patient from 12/07/08 to 17/07/08 at Kasaragod Institute of Medical Science Kasaragod . After the removal of the metallic foreign body from the abdomen the complainant somewhat relaxed after struggle for a long period of 19 months from initial operation conducted by the opposite party. Now the complainant is not in a position to bend forward due to the prolonged sufferings. The opposite party was negligent in her treatment, she did not take due care and caution during operation of the complainant and later. Due to the operation conducted by the opposite party, the complainant undergone miserable suffering and mental pain. Hence the complaint claiming a compensation of `4, 90,000/- with a cost of `5000/-.
2. Ist opposite party appeared and filed version in compliance with the judgment of the Hon’ble State Commission Kerala contending interlia :-
That the complaint is not maintainable and she is a Gynecologist and obstetrician practicing in Mangalore and an Asst. Professor of Department of Gynecology Kasthurba Medical College. She is also serving as Honorary Asst. Medical officer in Govt.Lady Goschen Hospital Mangalore and she is a PG Teacher which is a free service without any remuneration or salary. In Govt. Lady Goschen hospital there will be a team of doctors and PG students in each department to deal with the patients and the operation. The team consists of 2 permanent doctors of the hospital, one PG teacher and 2 PG students. One of the permanent doctors will be the unit chief. The PG students are the permanent doctors of the hospital used to attend the operation in the presence of the PG teacher. To her knowledge, complainant first came to the Lady Goschen Hospital on 11/12/06 as directed by Dr.Malathi Madhavan of Kasaragod Institute of Medical Science, for doing operation of removal of uterus free of cost. On that day Dr. Devi attended her. She never visited the opposite party or consulted her either in her clinic or in the Lady Goschen hospital .She was admitted in the hospital on 22/01/07 for surgery. She was admitted by one Dr.Neena Mahela. The surgery was done on 06/02/07 by the unit. The unit chief has a permanent doctor. Dr.Rathi Devi, Dr.Poornima were other permanent doctors in the team. The opposite party was the PG teacher in the team. One of the PG students was Jaspreeth Kour. The unit chief assigned the operation to the PG student Jaspreeth Kour. All team members and Dr.Neena Mahela were also present during the operation. The first opposite party was the only person knowing little bit of Malayalam. She explained about the operation and treatment etc to the patient. She also used to ask doubt with her and used to tell her problems. There was some skin infection to the patient. It was not healed immediately. Hence she continued treatment in the hospital. She was discharged against medical advice. Later opposite party came to know that she was admitted in Colaco hospital on the same day. Dr.Rajesh Balal attached to the Colaco Hospital contacted opposite party as requested by the husband of complainant and asked her to attend the patient since she know the history of the patient and she is familiar with her. So she gone there and gave all possible help. On 11/07/08 the complainant again came to Lady Goschen hospital and enquired about the opposite party and since she was in the clinic at that time they came to the clinic and showed an X-ray and told that a screw was left in the abdomen at the time of operation. The Ist opposite party verified the same and explained the things. She advised her to consult the doctor at Lady Goschen Hospital and it is also informed that if any thing is there in the abdomen it will be removed by them free of cost. The complainant returned after taking a visiting card of the opposite party and told that they will contact the doctor at Lady Goschen Hospital and asked the help that opposite party to discuss the matter with the doctor at Lady Goschen hospital. But they never contacted the opposite party later. The opposite party has not done the operation and she is not responsible for the foreign body in the abdomen of the complainant and for the sufferings of the complainant. She never obtained professional charges from the complainant. There was no negligence or deficiency in service on the part of opposite party. She is serving as a honorary Assistant Medical officer in the Govt.Lady Goschen hospital. No charge was obtained from the hospital by the opposite party for her service. The hospital authorities also not collected any charges for the operation. It was totally free service. So the complaint is not maintainable under the C.P.Act. The forum has no territorial jurisdiction to entertain the dispute. The entire things were allegedly happened in Mangalore in Karnataka state. The Govt.Lady Goschen hospital has no branches with in the jurisdiction of the Forum . The complaint is bad for non jointer of necessary parties. The person who done the operation or the institution from where the operation was done is not made party in the case. The opposite party is having Indemnity insurance policy from Oriental Insurance Company Mangalore branch. So the company is liable to pay the compensation if any awarded by the Forum. Hence they are also necessary party to the case. There is no cause of action for the complainant and opposite party is not liable to pay any compensation and the complaint is liable to be dismissed.
In view of the version of the opposite party complainant prayed to implead the Oriental Insurance company in the party array. The prayer is allowed and the Oriental insurance company is impleaded as 2nd opposite party. They filed their version.
3.VERSION of Second Opposite Party
The first opposite party was insured under the professional Indemnity policy ref No.422203/2007/91 for the period 01/07/06 to 30/06/07 with second opposite party. The complainant is put to strict proof of the allegations that she was admitted as inpatient on 22/01/07 at Govt.Lady Goschen Hospital Mangalore and after hysterectomy discharged on 28/01/07 and the hysterectomy was done by Ist opposite party. The complainant is bad for non jointer of necessary parties. The liabilities of 2nd opposite party are as per the terms and conditions of policy. The Ist opposite party after receiving the summons from the Forum did not inform the 2nd opposite party as per the terms and conditions of policy. The condition No.8.1 of policy envisaged as follows:- “ the insured shall give written notice to the company as soon as reasonably practicable of any claims made against the insured (or any specific event or circumstances that may give rise to a claim being made against the insured ) and which forms the subject of indemnity under this policy and shall give all such additional information as the company may require, and every claim write, summons or process and all documents relating to the event shall be forwarded to the company immediately they are received by the insured”. The Ist opposite party failed to abide the above condition. Hence 2nd opposite party is not liable to indemnify the Ist opposite party as it is violation of terms and conditions of policy. The Forum lacks territorial jurisdiction to entertain this dispute as no part of cause of action has taken place or the Govt. Lady Goschen Hospital has no branches within the territorial jurisdiction of the Forum.
4. Complainant filed proof affidavit in support of her case. Exts.A1 to A9 and MO1 marked. Dr.Prasad Menon of Kasaragod Institute of Medical Science examined as PW2. On the side of opposite parties Ist opposite party filed affidavit as DW1, Ext.B1 marked. 2nd opposite party produced Exts.B2 to B4. The case sheet pertaining to the treatment of complainant kept in Govt.Lady Goschen Hospital is produced and marked as Ext.X1(a) to X1(x) series. Both sides heard. 2nd opposite party filed notes of argument also.
5. The points arises for consideration are
1. Whether the complaint is maintainable before the Forum?
2. Whether the forum has got territorial jurisdiction to try the case?
3. Whether there is any deficiency in service on the part of opposite parties
4. If so what order as to relief and costs?
6. Issue No.1. Maintainability of the complaint
The contention of the Ist opposite party is that the complainant is not a consumer since she has not availed any service for consideration and the hospital where she has undergone hysterectomy is a govt. hospital where there is no payment is required.
As against this contention the complainant argues that she consulted Ist opposite party from her private clinic and
paid ` 500/- and there after according to her advice she approached Lady Goschen hospital. So according to complainant the fee
paid from the private clinic is the consideration. But Ist opposite party refutes this argument and according to her the consideration if any paid ( whether it is `500 or `100/-) is towards the professional consultation fee and same can no way connect with the surgical procedure undergone by the complainant from the govt. Lady Goschen Hospital Mangalore.
7. We accept the contention of the opposite party that the consultation fee obtained cannot be considered as the fee for the hysterectomy. But that does not save the Ist opposite party from the clutches of the Consumer Protection Act since the case of the complainant is that after the hysterectomy done from Govt. Lady Goschen hospital Mangalore she continued suffering pain in her abdomen and therefore she again consulted first opposite party and as per her advice she admitted in Colaco Hospital from where Ist opposite party and Dr.Rajesh Balal treated her and where the complainant paid professional charges to both doctors. This treatment done by the Ist opposite party is continuing treatment which is intended to correct the earlier procedure done by her from Lady Goschen hospital. So this is sufficient enough to bring her within the frame work of Consumer Protection Act.
8. The Colaco hospital is a private hospital and even if Ist opposite party would argue that she has not received any consideration for the said treatment even then the treatment done by a non-government hospital is sufficient enough to bring her under the purview of consumer Protection irrespective of payment of consideration. In the case of Indian Medical Association vs. V.P.Santa (1996) AIR 550) 1995 SCC(1) 651). The Hon’ble Supreme Court has held:
“ Service rendered at a non govt. hospital/Nursing Home where charges are required to be paid by persons who are in a position to pay and persons who cannot offered to pay are rendered service free of charge would fall within the ambit of the expression ‘ service” as defined in Sec.2(1)(0) of the Act irrespective of the fact that the service is rendered free of charge to persons who are not in a position to pay for such services. Free service would also be a service and the recipient a consumer’ under the Act. Therefore we are of the view that at least a part of the cause of action arose from Colaco Hospital which is sufficient to attract the provisions of Consumer Protection Act.
9. Issue No.2: Territorial Jurisdiction
The contention of the opposite parties is that no cause of action arose within the territorial limits of this Forum since the opposite party is working in Mangalore and the hospital where the complainant undergone hysterectomy also situates in Mangalore.
10. But we are not inclined to accept this contention since the discovery and removal of the foreign body from inside the body of the complainant took place from Kasaragod Institute of Medical Science Kasaragod which situates within the territorial jurisdiction of this Forum. Sec11 (2) (c ) of the Consumer Protection Act envisages that a complaint can be instituted in a District Forum within the local limits of whose jurisdiction the cause of action wholly or in part arises. So it can be regarded that a part of the cause of action arose within the territorial limits of this Forum. Therefore this issue is answered accordingly.
11. Issue No.3 : Deficiency in Service
The case of complainant is that a foreign body ( a nut of an instrument used at the time of surgery) deposited inside her body during the hysterectomy performed by Ist opposite party. In order to support her contentions she produced Exts.A1 to A9 and MO1. Ext.A1 is the discharge summary issued from Govt. Lady Goschen Hospital Mangalore to the complainant. The history shows that the patient was approached with history of amenorrhea since 2 months followed by bleeding for one month. She had history and D&C in Aug 2006 showing proliferative endometrium. Ext.A1 further shows that on 06/02/07 total abdominal hysterectomy was done to the patient. Ext.A2 is the discharge summary issued by Colaco hospital Mangalore- for the treatment during the period 28/02/07 to 05/03/07. Then the complainant Sajini admitted with the complaints of post operative wound dehexna and infection following total abdominal hysterectomy done at Lady Goschen Hospital. Ext.A3 is another discharge summary issued from Colaco hospital for the treatment during the period 19/05/08 to 20/05/08 with complaints of pain abdomen left lumbar and flanks hysterectomy years back. Ext.A4 is the discharge summary issued from KIMS Kasaragod for the treatment of the complainant during the period 12/07/07 to 17/07/07. There the complainant is seen admitted with the complainant of back pain and on CT scan an FB (foreign body) intra abdominal pelvic . Patient had a history of hysterectomy on 23/01/07. On diagnosis the impression is seen recorded as hysterectomy 1 year back, metallic FB foreign body intra abdominal and it is removed on 13/07/08 through laparoscopy. In the column Progress and treatment given the following entry is seen made.
Laparoscopic FB(foreign body) removed under GA(General Anesthesia) FB was entangled in the omentum near RF. Intestine adhered to it same separated. FB removed by minilap.’’ Ext.A5 is the CT scan report dtd.11/07/08 of the complainant . In which the impression is noted as intra abdominal pelvic metallic foreign body.Ext.A6 is the visiting card of the Ist opposite party. MO1 is ‘V’ shaped metallic nut(appears to be a nut of a surgical instrument)Ext.A7 series (3 Nos.) are the pharmacy bills and discharge bills issued from Colaco hospital Mangalore.Ext.A8 series are pharmacy and medical bills issued from KIMS,Kasaragod to the complainant. Ext.A9 is the Sonography Report of abdomen and pelvic of complainant as on 09/07/08. As per the said report there is no sonologically detectable foreign body in abdominal wall or within.
12. From the documents produced above itself it is clear that the foreign body was happened to be deposited during the surgery undergone by the complainant for abdominal hysterectomy from Govt. Lady Goschen Hospital Mangalore.
PW1 cross examined on her affidavit at length by the learned counsel for opposite party. During cross examination she deposed in tune with her complaint and affidavit and nothing material is brought out in cross examination to discredit her case.
13. PW2, Dr. Prasad Menon of Kasaragod Institute of Medical Science has deposed during examination in chief that the complainant was having back pain for a period of 6 months and she gave history of hysterectomy one year back following which she had problems of wound healing, multiple treatment for the same. Following which he asked her for a routine X ray of the lumbar spine. The X ray showed metallic foreign body. He further deposed that he had removed it from the body of the complainant and MO1 is a piece of surgical instrument used to retract the muscles during surgery. MO1 may come inside the body during the earlier surgery done to the complainant. PW2 added that the due diligence and care of a doctor in surgical operation is to take sufficient care to remove all foreign bodies from the operated region before suturing.
14. During cross examination by the learned counsel for Ist opposite party PW2 deposed that he is not aware whether PW1 was treated by Dr.Malathi, his mother . He also deposed that he is not aware whether PW1 undergone tubectomy operation earlier. But he clarified that tubectomy is done only by making a small incision of 2 cm and in PPS (Post Partum Sterilization) surgeries the surgical instrument are small and its shape will also be different in normal cases.
15. Ist opposite party filed affidavit and faced cross examination by the learned counsel for complainant Sri. Srikanta Shetty. Ist opposite party in her affidavit has reiterated what is stated in her version. In cross examination she has deposed that she was directed by the unit chief Dr.Rathi Devi to supervise the hysterectomy operation and she was not present through out the procedure of surgery and there may be many other cases to supervise at the same time. She further deposed that Ext.B1 is the case sheet maintained by the unit and it reveals her name.
16. In the notes of argument filed by the learned counsel for Ist opposite party Sri.K.Vinod kumar, an attempt was made to establish that there is no evidence before the Forum to show that Ist opposite party conducted the operation. But the case sheet produced (Ext.X1 series) shows that the operation was done by Jaspreth and it was supervised by Ist opposite party and assisted by another doctor. So now the core question to be answered is whether the doctor who merely supervised the surgery can be held for deficiency in service? The supervision of a surgery is not a light task. The entire team (if there is a team of doctors) has to perform the surgery in accordance with the direction of the supervisor. If the surgery is some thing special or important then the credit of the said surgery goes to the doctor who supervised the surgery and not to the doctors who actually performed the surgery. This is equally applicable in the cases where there is failure also.
17. The Hon’ble National Consumer Disputes Redressal Commission in the case of DINESH JAISWAL (DECEASED0 THROUGH LRS &7 ORS VS BOMBAY HOSPITAL AND MEDICAL RESEARCH CENTRE &7 ANR. Reported in (2010)CPJ 176(NC) has find fault on the part of doctor who delegated the responsibility to inexperienced junior doctor and who neither visited the patient nor gave necessary advice. The same is the procedure adopted by Ist opposite party in this case. Hence the delegation of surgery will neither absolve nor shift the liability of the Ist opposite party for compensating the complainant.
18. Now the question is whether leaving a foreign object inside the body during surgery amounts to deficiency in service or not.
The Hon’ble Supreme Court in the case of Indian Medical Association vs. V.P.Santa reported in III(1995) CPJ(1)(SC) has held that the case which do not raise any complicated question and deficiency in service may be due to obvious faults which can be easily established need not be referred to civil court and those can be adjudicated before the FORA itself. The Hon’ble Apex Court has illustrated some examples of such obvious faults which can be established easily such as removal of the wrong limb or performance of an operation on the wrong patient or giving injection or a drug to which the patient is allergic without looking into the outpatient card containing the warning or use of wrong gas during the course of an anesthesia or ‘’leaving inside the patient swabs or other items of operation equipments after surgery.’’
Recently, the Hon’ble National Commission in the case of the P Jam Jhute(Dr.) vs Shivabai & Anr reported in 2011 CTJ 658 (CP)(NCDRC) has held that the leaving a foreign object in the abdomen of a patient during surgery is a rare occurrence and one of extreme negligence and deficiency in service.
This being the settled position we unhesitatingly hold that first opposite party has committed gross deficiency in her service rendered to the complainant who has to leave Govt.Lady Goschen Hospital with her uterus outside and a foreign body inside. The subsequent treatments undergone by the complainant shows that she had suffered extreme pain and other miseries till the foreign body is removed by PW2 on 13/07/08 that means the foreign body was inside her body approximately 18 months. Certainly the complainant is entitled for adequate compensation in this regard.
19.Relief & Cost:
The 2nd opposite party admitted that Ist opposite party is covered by Ext.B2 Professional Indemnity Insurance policy. But according to 2nd opposite party as per the conditions No.8.1 of the policy
“ the insured shall give written notice to the company as soon as reasonably practical of any claims made against the insured ( or any specific event or circumstances that may give rise to a claim being made against the insured ) and which forms the subject of indemnity under this policy and shall give all such additional information as the company may require, and every claim write, summons or process and all documents relating to the event shall be forwarded to the company immediately they are received by the insured”. But first opposite party did not give any information regarding the case for or receipt of notice in this complaint against her and therefore they are not bound to indemnify the Ist opposite party. We find that the said clause is not applicable in this matter since in the earlier proceedings when the forum issued a registered notice to Ist opposite party it was returned unclaimed since Ist opposite party failed to collect the notice from the postal authority after receiving the postal intimation regarding the registered notice favoring her. So it cannot be concluded that Ist opposite party received the notice in the earlier proceedings and therefore there is no violation of condition No.8.1 of the policy. The 2nd opposite party is therefore liable to indemnify Ist opposite party as per Ext.B2 policy.
20. Complainant Sajini subjected to total abdominal hysterectomy by Ist opposite party on 23/01/07 and discharged on 28/01/07 with a metallic foreign body in her abdomen. She has to carry the same until it is removed by PW2 on 13/07/08. The subsequent repeated hospitalization and treatments undergone by the complainant shows that she has suffered much pain and misery through that period. Apart from that she constrained to undergo another surgery from Kasaragod Institute of Medical Science to remove the foreign body that is dropped during the earlier surgery of hysterectomy supervised by Ist opposite party. Definitely the complainant is entitled for adequate compensation for the sufferings.
Therefore considering the circumstances described above, the Ist opposite party is liable to pay compensation of ` 125,000/-(Rupees One Lakh twenty five thousand only) to the complainant with a cost of ` 5000/-. The 2nd opposite party being the insurer of Ist opposite party is liable to pay the said amount. Time for compliance is limited to 30 days from the date of receipt of copy of order failing which the said amount of compensation of `125,000/- will carry interest @ 9% from the date of complaint till payment.
Exts:
A1- Discharge summary issued by Govt.Lady Goschen Hospital Mangalore
A2 —do- Colaco Hospital Mangalore
A3- -do- ''
A4- -do- KIMS,Kasaragod
A5- CT Scan report
A6-Visiting card of Ist OP
A7 series-pharmacy & medical bills issued by Colaco Hospital Mangalore
A8series- -do- KIMS Kasaragod
A9-Sonography report
B1-case sheet
B2-Professional Indemnity insurance policy
B3-copy of letter issued by 2nd OP to Ist OP
B4-reply sent to Ist OP
X! series -case sheet issued by Govt.Lady Goschen Hospital Mangalore
MO1-foreign body
PW1- Sajini-Complainant
PW2-Dr.Prasad Menon- witness of PW1
DW1-Dr.Prema D’Cunha- Ist OP
MEMBER PRESIDENT
eva
