HON’BLE MR. TARAPADA GANGOPADHYAY, MEMBER

This Appeal u/s 15 of the Consumer Protection Act, 1986 has been filed by the Complainant assailing the judgment and order dated 17.9.2014 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II in Complaint Case No. 46 of 2014, dismissing the Complaint concerned.

Brief facts of the case, as emerging from the materials on records, are that the Appellant/Complainant was admitted on 30.8.2013 to the Respondent No. 1/OP No. 1-Nursing Home under Respondent Nos. 2 & 3/OP Nos. 2 & 3-Doctors for delivery of child.  On the same day at 6.09 p.m. a female baby was delivered by ‘LUSCS’, i.e. Caesarean Section, by the Respondent Nos. 2 & 3/OP Nos. 2 & 3-Doctors with the assistance of others, and the Appellant/Complainant was discharged on 2.9.2013 as revealed from the ‘Discharge Summary’ dated 2.9.2013 of the Respondent No. 1/OP No. 1-Nursing Home.  After such discharge, the Appellant/Complainant on 9.9.2013 further met the Respondent No. 3/OP No. 3-Doctor as per advice of the Respondent No. 2/OP No. 2-Doctor with complaint of pain in lower abdomen when the Respondent No. 3/OP No. 3-Doctor prescribed some medicines and tests, but following the said advice of the Respondent No. 3/OP No. 3-Doctor when the Appellant/Complainant did not get any relief in abdominal pain, the Appellant/Complainant met the Respondent No. 2/OP No. 2-Doctor on 17.9.2013 when the Respondent No. 2-Doctor prescribed some additional medicines and advised the Appellant/Complainant to visit the Respondent No. 3-Doctor in case of necessity as the Respondent No. 2-Doctor would be out of India for a couple of months.  Despite following the advice of the Respondent Nos. 2 & 3-Doctors when the Appellant/Complainant did not get any relief from abdominal pain, she visited another doctor, being Dr. Nabanita Javed, at Lap Cure Clinic, who, examining the clinical signs of the Appellant/ Complainant, advised for USG of the whole abdomen further.  Accordingly, the Appellant/Complainant got the second USG done on 7.10.2013 which reported “A big complex space occupying lesion at right adnexa - ? Texiloma”.  Examining the USG report Dr. Nabanita Javed did Laprotomy upon the Appellant/Complainant on 10.10.2013 and removed the ‘infected mop & pus ,,,,,, and toileting done’ as is revealed from the Discharge Summary dated 20.10.2013 of Lap-Cure Clinic.  After removal of ‘infected’ mop, the Appellant/Complainant sent a letter dated 6.12.2013 to the Respondents/OPs seeking unconditional apology and refund of money paid for such negligence on the part of the Respondents/OPs, but the Respondents/OPs did not reply to the said letter.  With this factual matrix the Complainant moved the Complaint concerned before the Ld. District Forum which passed the order dismissing the Complaint.  Dissatisfied with the said order the Complainant has approached this Commission with the instant Appeal.

The Ld. Advocate for the Appellant/Complainant submits that the Ld. District Forum passed the order impugned erroneously ignoring the report of USG dated 7.10.2013 reporting ‘Texiloma’ and the fact of removal of ‘infected mop and pus’ from the abdomen of the Appellant/Complainant as evident from the Discharge Summary dated 20.10.2013 by Dr. Nabanita Javed, and that the ‘mop’ was left inside the abdomen of the Respondent Nos. 2 & 3/OP Nos. 2 & 3-Doctors.

The Ld. Advocate continues that the said USG and the findings in the Discharge Summary having not been contradicted by the Respondent Nos. 2 & 3/OP Nos. 2 & 3-Doctors as ‘false’ and ‘fabricated’.

The Ld. Advocate submits that the aforesaid evidence on records undisputedly points to the gross negligence on the part of the Respondents/OPs.

The Ld. Advocate further submits that the Respondent No. 1/OP No. 1-Nursing Home is also vicariously liable for its deficiency in service in ensuring proper care and diligence in discharge of duties of the Doctors who were engaged in the Respondent No. 1-Nursing Home for rendering services.

The Ld. Advocate concludes that in view of the aforesaid submission, the instant Appeal should be allowed, the impugned order be set aside and the Complaint be restored in the interest of justice.

On the other hand, the Ld. Advocate for the Respondent Nos. 1 to 3/OP Nos. 1 to 3 submits that the Ld. District Forum passed the order impugned properly in view of the failure of the Appellant/Complainant to adduce any documentary evidence in support of the ‘8cm. x 6cm. surgical sponge’ inside the abdomen of the Appellant/Complainant (sample received on 10.10.2013).

The Ld. Advocate adds that histopathological report dated 22.10.2013, as available on records, is also silent about the ‘mop’ and ‘Texiloma’.

The Ld. Advocate further submits that the said case suffers from non-joinder of party, being Dr. N.Javed, who statedly removed the ‘mop’.

The Ld. Advocate also submits that the Appellant/Complainant did not follow up the case as per advice of the doctors concerned and hence, there is contributory negligence on the part of the Appellant/Complainant.

The Ld. Advocate finally concludes that in view of the aforesaid submission, the instant Appeal should be dismissed and the impugned order be sustained.

Heard both the sides, considered their respective submission and perused the materials on records.

As regards non-joinder of party, it is well –settled by the Hon’ble Supreme Court in Smt. Savita Garg Vs. The Director, National Heart Institute, reported in 2014 (4) 258 (SC) that the Complaint should not be dismissed for non-joinder or mis-joinder of parties.

The Discharge Summary dated 9.10.2013 of Lap-Cure Clinic, as available on records (Running Page 72 of Memo of Appeal) exhibits “….infected mop & pus removed…..” confirming that the mop, i.e. foreign body, was left inside the abdomen at the time of Caesarian section.

The USG report dated 7.10.2013 by Manisha Ultrasound Clinic, as available on records (Running Page-71 of Memo of Appeal) exhibits “IMPRESSION : A big complex space occupying lesion at right adnexa - ? Texiloma” implying thereby the retention of textile foreign body in the surgical site.

The Respondent Nos. 2 & 3/OP Nos. 2 & 3, who performed on 30.8.2013 the Caesarian Section upon the Appellant/Complainant, in the written version, as filed before the Ld. District Forum concerned, did not state that the Discharge Summary dated 9.10.2013 and the USG report dated 7.10.2013, as mentioned hereinbefore, were forged and fabricated ones implying thereby that the ‘mop’, which was removed by the second surgery,  was left inside the abdomen at the time of Caesarian Section on 30.8.2013 because no other surgery was done in between the date of Caesarian Section and the removal of the infected mop.

For retaining such ‘mop’ in the site of Caesarian Section the Respondent Nos. 2 & 3/OP Nos. 2 & 3-Doctors shifted the liability for such negligence to the nurses present at the time of Caesarian Section, but such shifting of liability does not appear to be fair and hence, not acceptable for the simple reason that it is the Respondent Nos. 2 & 3/OP Nos. 2 & 3-Doctors who owed duties of proper care and diligence in rendering services to the Appellant/Complainant.

The prescriptions dated 9.9.2013 and 30.9.2013, as available on records (Running Page-56 of Memo of Appeal) also indicate that the Appellant/Complainant met the doctors concerned as the follow-up action and hence, the charge of failure to take follow-up action on the part of the Appellant/Complainant does not appear to be reasonable. 

Also, the above-referred prescription of the doctors concerned does not contain any clinical signs and symptoms the doctors found out after examination of the Appellant/Complainant, which is contrary to the standard medical ethics.

The aforesaid facts, evidence on records and discussion clearly indicate the breach of duty of the Respondent Nos. 2 & 3/OP Nos. 2 & 3-Doctors to the patient, being the Appellant/Complainant, and such breach of duty is one of the components of medical negligence as was held by the Hon’ble Supreme Court in Jacob Mathew Vs. State of Punjab & Anr., reported in (2005) 6 SCC 1.

The aforesaid discussion clearly establishes the medical negligence as well as the deficiency in service on the part of the Respondent Nos. 2 & 3/OP Nos. 2-Doctors and hence, the Respondent Nos. 2 & 3/OP Nos. 2 & 3-Doctors cannot escape their liability.  In this context, reliance is placed on a decision of the Hon’ble National Commission in K.Ravindra Nath (Dr) & Anr. Vs. Vitta Veena Surya Prakasham & Ors., reported in IV 2006 CPJ 105 (NC).

The Respondent No. 1/OP No. 1-Nursing Home also cannot escape its vicarious liability for the deficiency in service on the part of the Respondent Nos. 2 & 3/OP Nos. 2 & 3-Doctors who were engaged in duties with the Respondent No. 1/OP No. 1-Nursing Home as was held by the Hon’ble Supreme Court in Smt. Savita Garg Vs. The Director, National Heart Institute (supra).

Consequently, the instant Appeal is allowed with cost of Rs. 10,000/- to be paid by the Respondents/OPs to the Appellant/Complainant.  The Respondent Nos. 2 & 3/OP Nos. 2 & 3-Doctors are directed to pay to the Appellant/Complainant Rs. 4,00,000/- each as compensation for second-time surgical expenses, harassment and mental agony and  the Respondent No. 1/OP No. 1-Nursing Home is also directed to pay Rs. 50,000/- to the Appellant/Complainant as compensation  within 45 days from the date of the order, failing which interest @ 6% per annum shall accrue on the entire amount involved for the entire period of default.

The instant Appeal is disposed of in the aforesaid manner.