Consumer Court slaps Rs 20 lakh compensation on Udupi Hospital, doctors for leaving surgical mop inside patient during C-Section

Bengaluru: A Consumer Court in Bengaluru has directed a private hospital based in Udupi and its doctors to pay Rs 20 lakh compensation to a patient for leaving surgical mop inside her body while conducting caesarean section operation.

The Bengaluru Rural and Urban 1st Additional District Consumer Disputes Redressal Commission in Shanthi Nagar took this decision after perusing the discharge summary of Kasturba Hospital, where the patient had to undergo surgery for removal of the cotton swab.

The matter goes back to July, 2018 when the complainant after experiencing labour pain, approached the treating hospital i.e. TMA Pai Hospitals and underwent Caesarean section operation for the delivery of her baby.

However, after delivery she started experiencing lower abdominal pain at the sight of incision along with vaginal discharge with foul smell. However, the treating doctors at the hospital had informed her that the discharge was "Lochia" and the pain was natural one because of the delivery. She was further assured by the doctors that the pain would subside once the discharge stopped.

Despite such an assurance, there was no relief from pain even after a month and being unable to bear the pain she again approached the hospital, where a postgraduate doctor allegedly examined her and allegedly asked offensive questions. The concerned doctor had also prescribed medicines for menstrual disorder and for acute pain during the said period. 

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Consequently, as per the direction of the doctor an Ultrasound Sonography had been conducted and the report showed that the left ovary was not visible. It was submitted by the complainant that the treating doctor never put any effort to further investigate why the left ovary was not visible. Another round of ultrasound was conducted and the report was allegedly not shown either to the complainant or her husband. 

Despite further medications and investigations, the pain continued and doctors failed to diagnose the proper cause for the pain. Thereafter the patient was operated again for lower abdominal pain and for the vaginal discharge on September 24, 2018 and she was discharged on October 6.

However, there was no relief to her lower abdominal pain and she also started complaining about nipple pain in her breast and about difficulty to feed the baby. Although the patient continued to visit the hospital every alternate days after the second operation, there was no relief.

Hopeless over her situation, the patient approached an Ayurvedic Doctor, who suggested her to go for MRI. The MRI report showed that there was presence of "Gossypiboma" (cotton swab) in her body, which was identified as a foreign object inside the body. Immediately, the Ayurvedic Doctor recommended for a surgery and Dr Prasad of Kasturba Medical College Hospital conducted the third surgery and removed the mop from her body. 

However, even after removing the cotton swab, it was found that the sigmoid colon of the complainant was fully infected due to the presence of the foreign body inside the body. Therefore, the said colon had to be removed surgically by Laparotomy Surgery. Since the descending colon and rectum were stitched together, until it got recuperated, an alternative opening was created in the small intestine and colostomy pouch was fixed for artificial excretion.

Finally, after the laparotomy surgery, the complainant was free from abdominal pain and breast pain and also from the vaginal discharge. She had to undergo another surgery at Kasturba Hospital, Manipal to remove the colostomy pouch.

Alleging negligence against the TMA Pai Hospitals and its doctors, the complainant claimed that there was negligence at the time of conducting caesarian operation and also at the time of removing the abscess and treating for abdominal pain and vaginal discharge.

The counsel for the complainant submitted that due to the negligence of the treating doctors, the complainant could not spend time with her baby, could not properly breast feed the newborn. Further, the complainant's left fallopian tube and left ovary have allegedly become weak and nonfunctional. She also lost her opportunity of lifetime in her professional career.

On the other hand, the treating hospital and its doctors denied negligence on their part and submitted that they had taken all precaution while performing the caesarian. They further claimed that after and before closing the stitching, they had verified the instruments, cotton etc. twice and again after closing the list was verified. Therefore, they submitted that there was no basis for the complainant to contend that there was negligence on the part of the doctors and the hospital.

After taking note of the submissions by both the parties, the bench also perused the discharge summary of the third operation at Kasturba Hospital, which stated, "Inflammatory mass with foul smelling pus within in the region of left iliac fossa. This mass was formed by a surgical mop within, omentum and ileal loops and sigmoid colon. The wall of sigmoid colon was sloughed off with fecal contamination of the mass/abscess. Omentum contributing to the abscess/mass was divided among harmonic small bowel (ileum) was carefully dissected off the mass/abscess. One regional breach of ileum was repaired by interrupted prolene outer. The surgical mop within the abscess was retrieved and handed over to scrub nurse. Left ovary and fallopian tube was dissected off. The abscess (inflammatory mass). Sigmoid colon with the mass was mobilized.……etc."

The Commission also perused the further discharge summary of the 4th operation which supported the case of the complainant that the doctors of TMA Pai Hospitals had acted negligently.

Besides, the bench also perused the checklist of surgical instruments submitted by the treating hospital and observed that, "On perusing the same, it do not mention the number of instruments used the number of cotton swab that were earlier in the operating room and the number of the instruments and the cotton swab that were available after the surgery and after the closure of the wound . It is simply a list of the materials and there is a tick mark and X mark made in the said document which do not specify as to how many instruments, how much of cotton swabs, how much of wife gauze were kept ready for the use of the surgery, and how much used and what is the count after the finishing of the surgery and before closing of the wound by stich. Hence the said document will not come to the help of the OPs."

Therefore, considering the discharge summary of the Kasturba Hospital, the Commission noted,

"It becomes clear that, a surgical mop was retrieved and the drainage abscess was done with retrival of the surgical mop. In view of this, we hold that there is negligence on the part of the doctor OP-5 and his teammates conducted caesarean section on the complainant on 29.07.2018 and he is a route cause for all the suffering which the complainant undergone."

While deciding the amount of compensation, the Consumer Court noted,

"Keeping in mind, the principles of granting the damages/ compensation on different counts, and that it should not be a bonanza or a lottery or a windfall to the complainant and at the same time, it shall not be a pittance and giving for gratis, and that it should be just, proper, reasonable and adequate."

Deciding that the amount of compensation should be Rs 20 lakh, the Commission observed,

"Under the circumstances, in the absence of concrete evidence as discussed above, we deem it proper to award a sum of Rs.15,00,000/- as global compensation towards pain and suffering, emotional distress and loss of consortium and further a sum of Rs.5,00,000/- towards damages for mental suffering, physical suffering, emotional suffering loss of earnings (though not specifically evidenced), but have suffered for herself and her husband and towards legal expenses."

Discussing in detail about which doctors should pay the compensation, the Consumer Court ordered,

"The complainant has not sought compensation from any particular doctor or institution. She has claimed the above compensation from all the above OPs. On perusing the evidence and documents and for the reasons stated above, it is OP-5 Dr. Nida Zhoor has conducted the caesarean with the help of the OP-4 and 6 along with the nurses attached to the said hospital who were posted in the operation theatre on that day. In the interrogatories issued by the complainant to OP-2, it is very well stated by Op2 that taking the counts of the instruments , cotton swab the wire gauze is on the doctors who performs the operation and also the nurses who are posted for the particular surgery. In view of this, we are of the opinion that OP-4, 5 and 6 are to be held responsible for the said negligence and also liable to pay the compensation. Since these persons and the nurses who were deputed or entrusted with the surgery in the operation theatre on that day are the employees of OP-1 and by applying the principles of "vicarious liability", OP-1 has to pay the compensation on behalf of the said doctors and the nursing staff. In case OP-1 feels to recover the same from the said persons it is at liberty to do so. The complaint against other OPs i.e. OP-2, 3, 7, 8, 9, 10, 11 and 12 are hereby dismissed as there is no evidence against them to prove their negligence."

To read the order, click on the link below:

https://medicaldialogues.in/pdf_upload/tma-pai-hospital-negligence-192601.pdf

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