Appendectomy Mishap: Hospital directed to pay Rs 8 lakh for leaving mop inside

Holding the hospital vicariously liable for the alleged medical negligence, the Commission granted compensation to the patient for the mental and physical anguish which he had to suffer and for loss of income during the medical treatment.

The hospital has been directed to comply with the order within 60 days and the Commission has clarified that otherwise, the amount will carry interest at the rate of 9% p.a. till its realization.

Back in 2008, the complainant had been admitted to the treating hospital due to severe pain of appendix and following this, appendix operation was performed. However, as the pain didn't get better, the he again consulted the hospital and the doctors cleaned the pus by operating on the patient. Still there was no relief, and the hospital conducted tests including X-ray and Sonography and diagnosed the patient with normal pain.

As the health condition didn't improve, the complainant consulted another doctor who after conducting a Sonography advised him for operation, and during the operation, it was revealed that the root cause of pain was a mop/ piece of cloth trapped in the large intestine.

Thus, alleging medical negligence against the first treating hospital, the complainant approached the District Consumer Court Ahmedabad (Rural) and sought Rs 15 lakh as compensation. However, the district commission after hearing the counsels, and after considering the documents and evidences, dismissed the Complaint.

Being aggrieved with the order of the District Commission, the complainant approached the State Commission.

The counsel for the Complainant contended that that the panel of expert doctor of B. J Medical College had opined that the mop was found in the intestine of the appellant and therefore this clearly showed that there was negligence on the part of the hospital in performing the operation. In fact, in operation C.D, it had been visually recorded that there was a mop that remained in the intestine while performing an operation by the Hospital. However, this fact was not considered by the District Commission.

Further, the District Commission had opined that since no fees had been charged by the Hospital, the appellant was not a consumer and therefore the Consumer Protection Act would not be applicable and the complaint would not be maintainable.

However, the counsel for the complainant argued that the finding of the District Consumer court cannot be accepted as in the Trust Deed it had been mentioned that medical help would be granted to the poor and deserving person and therefore as per the provision of Consumer Protection Act complainant is a Consumer. Further, the complainant had purchased medicines from the Hospital and in that way he was a consumer.

On the other hand, the counsel for the hospital submitted that upon examining the patient it had been diagnosed as a case of perforated appendix and consequently, the complainant was advised for surgery of appendectomy.

The counsel further submitted that during follow-up treatment whenever the complainant had made any complaint the in-charge doctor had provided with immediate necessary treatment. During the follow up treatment, the complainant had developed infective abscess which is a known complication of appendectomy and there was pus, contended the counsel. He further argued that the complainant was given proper medical assistance and antibiotics had been prescribed.

He further argued that even though the complainant was advised to visit the hospital regularly, and he was responding well to the known complications of the surgery, all of the sudden the complainant stopped visiting the hospital. So, there was no negligence or carelessness on the part of the opponent hospital in treating the patient, argued the counsel.

It was further contended by the counsel that the question of using piece of cloth at the time of surgery doesn't arrive at all and the complainant was having post operative complication only because of large infected appendix, adhesion of intestine, etc.

The counsel further submitted that the surgeon in an affidavit before the District Commission had stated that no mop was used during the surgery and as the complainant didn't challenged the affidavit, the contents of the affidavit had not been challenged. Besides, the X-ray and Sonography conducted at the hospital didn't detect any such mop.

He also submitted that even though the Police panchnama had mentioned about the mop, there was no biopsy report of the mop to ascertain that it was the same mop that came out of the abdomen of the complainant.

After considering all the contentions, the State Commission noted that ".In light of the above judgments of Hon'ble Supreme Court it is crystal clear that where services are rendered free of charge to everybody then complainant does not fall within the purview of Consumer but in the instant case considering Section 03 of the Trust Deed of the opponenthospital it becomes clear that in the opponent hospital the services of hospital were provided free of charge to poor and deserving persons and to every other person on payment of charges and hence in the considered opinion of this Commission complainant is fall under the definition of the 'Consumer' under C.P. Act, 1986. Furthermore opponent hospital has not produced any evidence which can prove that opponent hospital was providing treatment free of charge to all their patients."

Further referring to the contentions that as per the Cr.P.C and Indian Evidence Act, the statements of the second doctor and other doctors given to the Police authorities were not admissible as evidence in the Consumer Protection Act, the Commission observed, ".It is pertinent to note here that the Consumer Protection Act, 1986 is a beneficial legislation to provide speedy, inexpensive and hassle free redressal to the grievance of the consumers. The provisions of the Code of Civil Procedure, except the one, provided under Section 13(4) of the Act, and the Evidence Act are not applicable to the Consumer disputes. The Consumer Commissions are to evolve their own procedure for adjudicating the consumer disputes by resorting to the principles of natural justice but are not required to enter into technicalities, with a view to deny the substantial justice to the parties."

At this outset, the Commission referred to the Supreme Court judgment in the case of V. Kishan Rao Vs. Nikhil Super Speciality Hospital and Other and opined, "Looking to the above observation of the Hon'ble Supreme Court the allegation of the opponent that the statements given before the police authority are not admissible in C.P. Act is not sustained."

Regarding the expert panel report of BJ Medical College, the Commission took note of the contention by the hospital's counsel that some endorsements had been made in the report by someone and it was deleted as well and therefore the report cannot be considered as an evidence.

At this outset, the Commission noted, "the expert doctors of penal have signed under the said observation report and the said report has also sent to the Civil Hospital Sola through the Dean of B.J. Medical College and this report was then submitted to Police department and therefore it may be the possibilities that during this transaction of report the said endorsement was made by someone and then it was deleted but this deleted hand written endorsements cannot prove that the said report is suspicious."

The expert report had mentioned, "From the evidences given, it is proved that mop was left inside the abdomen during the first surgery by *** of *** Hospital Surgery Department which has created all the consequent surgical complications".

Referring to this report, the Commission noted, "therefore in the opinion of this Commission it is palpably emerged from the above report that mop was left inside the abdomen of the complainant."

Further the Commission noted that although the Sonography reports conducted by the Hospital didn't find any mop, the images had not been produced by the Hospital on record. "Hence in the opinion of this Commission opponent hospital is failed to prove that there was no such mop has been left inside the abdomen," noted the Commission.

"it is crystal clear that on the basis of the above report of expert doctors' penal it is establish that the mop was left inside the abdomen and thereafter it has been removed by the operation and therefore it is distinctly appeared the gross medical negligence of the treating doctor of the opponent hospital which indicates that this is a case of Res Ipsa Loquitur and therefore it is the duty of the opponent doctor to prove that he was not negligent," concluded the Commission.

Referring to the definition of medical negligence as established by the Supreme Court in a series of judgment including in the case of Jacob Mathew Vs. State of Punjab & Anr. and Achutrao H.Khodwa Vs. State of Maharashtra, the Commission observed, "In the instant case the report of expert doctors' penal has revealed that it was the result of negligence of treating doctor who has performed operation on the complainant and therefore in the considered opinion of this Commission the report itself proves that it was the gross medical negligence of treating doctor of the opponent Hospital."

"As far as liability of the Hospital is concerned, Hospital is liable with respect to medical negligence that may be direct liability or vicarious liability which means the liability of an employer for the negligent act of its employees. An employer is responsible not only for his own acts of commission and omission but also for the negligence of its employees, so long as the act occurs within the course and scope of their employment. This liability is according to the principle of 'respondent superior' meaning 'let the master answer'. A hospital can be held vicariously liable on numerous grounds on different occasions. Several Hon'ble High Courts Judgments have held hospitals vicariously liable for damages caused to the patients by negligent act of their staff," clarified the consumer court.

Holding that the order of the District Commission was not just and proper, the State Commission directed the hospital to pay compensation amounting of Rs 8 lakh to the complainant along with Rs 10,000 for legal expenses.

To read the order, click on the link below.