(Delivered on 14/01/2020)
PER MR. JUSTICE A.P.BHANGALE, HON’BLE PRESIDENT.
1. Heard submissions. This is very old consumer complaint of 2013 pending for some reasons or others due to various adjournment sought by the learned advocates of rival side. We had insisted upon written submissions being tendered on record to avoid the delay in the decision in the complaint. Accordingly, it appears that written notes of arguments on behalf of the complainant as well as O.Ps. were filed. We have also heard insurance company through advocate.
2. Complainant – Mrs. Leena Shailendra Thawre is housewife by occupation residing with her husband and other family members at Nalanda Nagar, Nagpur. In December 2012 when she was 36 weeks pregnant. She had approached hospital conducted by the O.P.No. 1 of which O.P. No.2 is President and O.P. Nos. 3 to 6 are doctors attached to the hospital. On or about 1 December, 2012 the complainant was admitted in the hospital of O.P.No. 1 at about 6.00 a.m. for delivery of the child. Her delivery was not normal and she had to under go caesarian operation to deliver the child. Therefore, she was operated at about 7. a.m. as delivery was by caesarian mode on the pretext that normal delivery was not possible. Doctor O.P.Nos. 3 to 5 were in the team of the doctors who operated the patient. At post operative stage it appears on the very next day complainant had complained of severe pain in the abdomen and also suffered from vomiting and constipation and dizziness resulting from the pain. The pain was unbearable and complainant was in discomfort in the hospital. Therefore, through nurse she had called O.P.No. 3 and O.P.No. 3 doctor referred her doctor O.P.No. 7 surgeon who advised blood test and as also sonography, X-ray. The O.P.Nos. 6&7 had administered medicines on or about 8 December, 2012 and the complainant was discharged from Smt. Nimbunabai Tirpude Hospital. On or about 10/01/2013 Spandan Diagnostics had recorded impression as follows.
“C.T. findings are consistent with foreign body (sponge) in right iliac fosa compressing IC junction and mid ureter causing moderate hydronephrosis (H/o of LSCS on 1st Dec. 12). Findings also including observation by Spandan Diagnostics and there was noted an echogenic lesion is noted in right lower abdomen showing multiple air pockets in it. A lump formation is seen at the site of the lesion? foreign body in view of h/o LSCS. Suggest CT abdomen”.
3. Thus, second time on or about 10/01/2013, the complainant was admitted with complaint of abdominal pain, distinction, vomiting on and all. According to the complainant there was a gross medical negligence in the matter of treatment in the hospital and by doctors who were indicted as the O.P. as the complainant had suffered piece of sponge in the abdomen of the complainant due to which she had developed pus and her condition was life threatening. According to her she had under gone prolonged medical treatment as also another surgery due to unprofessional, irresponsible and negligent act of O.P.Nos. 1 to 7 for which complainant suffered continuously from unbearable pain in normal performance in her day to day activity. The complainant had to spend huge expenses on medicines and suffered mentally and physically and also lost her normal earning due to negligence of the O.Ps. for which she claimed the sum of Rs. 31,65,000/-.as according to the complainant she was unable to work due to continuing pain and immobility due to negligent acts of doctors leaving foreign substance in the abdomen portion of the complainant.
- In defence it appears that O.P. Nos. 1 to 3, 5,6&7 questioned the genuinnes of the complaint contending that the patient was properly examined, investigated, diagnosed and treated as per prescribed norms of general practice. Doctors of the hospital were from recognized educational institution and that doctors could not be held liable for complication like high blood pressure, increased heart rate of patient and intra abdominal adhesions etc. It is in not dispute that the complainant was subjected to caesarian operation for delivery of the child at hospital of the O.P.No. 1&2, The finding that patient was having pain in the abdomen, vomiting constipation and dizziness on account of foreign substance left in the stomach of the patient. According to the O.P. there with consulting from the complainant on merit it submitted that the claim made by the complainant is excessive and unjustified. While putting to the submission the O.P.No. 8 by separate written argument contended that there was no deficiency in service on his part. The O.P. (insurer) also contended that there are limit of indemnity in such cases. By making reference of Santokh Nursing Home & Anr. Vs. Jaswinder Singh and Ors., reported in 2010(1)CPJ, page 204. In which case foreign object (swabs) was left in side the abdomen in the patient during the operation as a result of which patient has died. The State Commission admitted and held treating doctor liable to pay sum of Rs. 12,34,414/- and since coverage of insurance was limited to Rs. 5,00,000/- remaining amount was directed to be paid by doctor. In another case Tarunjit Dutta Roy (Dr) Vs. New India Assurance Company Ltd. & others, reported in 2013(2) CPJ 288. It is contended that in case of breach of the insurance policy there was no deficiency in service on the part of the insurance company so as to indemnify the insured.
5. We have considered rival submissions including submission advanced on behalf of the insurer and also copies of documents which are brought to our notice.
6. In the facts and circumstances of the case when pregnant house wife was brought to the hospital for delivery of the child and caesarian operation was required by the doctor in the hospital. One normally expected that hospital has to be well equipped with modern operation theatre and assisted by competent doctors worked in their respective of profession so as to take all necessary precautions and standard of reasonable care so that such caesarian operation was carried out in a just and proper manner without creating any complication such as leaving a foreign substance like sponge in the abdomen and stomach of the patient which can, if left negligently, create health hazard for the patient making the patient suffer continuously mentally and physically. In such cases the medical negligence that has been caused speaks for itself “res ipsa loquitur”. Therefore, in our view no further evidence is necessary when findings are recorded that foreign body such as sponge was left in the abdomen or stomach of the patient which made it necessary for the patient to under go another operation for removal of the foreign body that too after lapse of a long period. In our view, not only the doctors who attended on the patient during the period of caesarian operation but also the hospital were jointly and severally responsible to pay compensation arising due to deficiency in service and also unfair trade practice as it happened in the present case.
7. The complainant had to incur huge expenses towards her treatment, consumption of medicines etc. During the period extending up to the discharge of second operation she not only suffered for medical treatment or expenses on account of medicines, bills of hospital but also her loss of earning as house wife and mental and physical harassment. She has claimed a sum of Rs. 25,00,000/- toward loss of earning etc. on account of negligence by or on behalf of O.Ps., hospital and doctors collectively. She has also claimed sum of Rs. 5,00,000/- towards physical and mental harassment resulting from the medical negligence on the part of the hospital and doctors and expenses on account of medicines and expenses for sum of Rs. 1,50,000/- and also litigation cost including notice charges for sum of Rs. 15,000/-.
8. According to the insurance company, the insurance which covered the hospital is not extended beyond the sum of Rs. 5,00,000/-. Therefore compensation be limited for sum of Rs. 5,00,000/-. In our view the insurance cover, premium payable etc.. are matters of contract between hospital and the insurer or for that matter between doctor and insurer. When the incident as happened in this case of gross medical negligence on the part of the doctor who conducted the caesarian operation in the hospital of the O.P.Nos. 1&2. We must award expenses claimed on account of medicines and operation in the sum of Rs.1,50,000/-, physical and mental harassment in the sum of Rs. 5,00,000/- suffered by the complainant as also special damages in the sum of Rs. 5,00,000/- and litigation cost in the sum of Rs. 25,000/- including notice charges etc. We hold the hospital of O.P.Nos. 1&2 as also doctors responsible for caesarian operation on account of vicarious liability of the Hospital for medical negligence and direct that the O.P.Nos. 1&2 hospital as well as doctors attached to the hospital who were involved in the treatment of complainant are jointly and severally liable for gross medical negligence in leaving foreign body i.e. sponge in the abdomen of the patient as jointly and severally liable to pay sums of compensation as stated above. Sum of Rs.1,50,000/- towards expenses of medicines and operation of the complainant, sum of Rs.5,00,000/- towards physical and mental harassment , sum of Rs.5,00,000/- towards physical suffering on account of gross negligence by the doctors and sum of Rs.25,000/- towards litigation cost, in total about Rs. 11,75,000/- payable within three months from the date of this order, failing which the amount shall carry interest at the rate of 9% p.a. from the date of the complaint till its realization. Liability of the insurance company O.P.No. 8 would be limited to sum of 5,00,000/-. Rest of the amount be borne jointly and severally by the hospital and doctors. Accordingly, complaint is partly allowed.
