Mop left inside patient during caesarean: Delhi HC quashes criminal proceedings against hospital, gynaecologist

The bench opined that the matter could have, at best, delineated a civil liability, and accordingly, quashed the FIR registered against the doctor and the hospital, after noting that the matter had been amicably settled between the parties.

However, the court imposed a cost of Rs 25,000 on the treating hospital and the gynaecologist to be deposited with the Delhi Police Martyrs’ Fund, within a period of four weeks from date. "Let the proof of deposit of cost be submitted to the concerned SHO," ordered the HC bench.

The FIR in this case was registered against the doctor and the hospital based on a complaint by the patient alleging that an abdominal cotton mop was left inside her abdomen during the C-section surgery, which resulted in severe infection, pus collection, and the need for a second major surgery at another hospital. In the FIR, sections 336, 337, and 34 of the IPC, relating to acts of endangering life or personal safety and causing hurt by rash or negligent acts, were invoked. 

During the case proceedings, the patient submitted before the HC bench that she had received a compensation amount of Rs 14 lakh and that she did not wish to pursue any proceedings arising out of the FIR.

Taking note of this, the HC bench observed, "It is well settled that the High Court while exercising its powers under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’) [erstwhile Section 482 of the Code of Criminal Procedure, 1973] can quash proceedings in which offence is non-compoundable on the ground that there is a compromise between the accused and the complainant."

In this context, the HC bench referred to Supreme Court judgments in the cases of Narinder Singh & Ors. v. State of Punjab & Anr and the judgment in the case of Parbatbhai Aahir & Ors. v. State of Gujarat & Anr.

The HC bench also noted that the parties had duly appeared before the learned Disciplinary Committee of the Delhi Medical Council, which observed, "there was some error in counting of mops during the primary surgery."

However, the Committee had also opined that "proper management protocol has been followed in the post-operative period. Timely, surgical referral was done. Since paralytic ileus is the common cause of abdominal distension, hence, x- ray abdomen was advised. Surgical advice was followed properly and the complainant started improving."

The court further observed that even though the treating doctor did not exercise due diligence expected from an ordinary prudent doctor, her acts or omissions were not reckless or patently wanton for inviting criminal liability.

Noting that these observations were later confirmed by the Delhi Medical Board, the HC bench observed,

"Pertinently, the Medical Opinion had been obtained in the present case and it stands recorded in the order of the learned Disciplinary Committee that proper management protocol was followed in the post-operative period and timely, surgical referral was done by the Petitioners. Further, the surgical advice was followed properly and even the condition of the complainant had started improving. However, since, an abdominal mop was retrieved from the abdominal cavity of the complainant, the same suggests that there was some error in counting of mops during the primary surgery, which was the combined duty of the operating surgeon as well as the Nurse. Hence, it was concluded that though the Petitioner No. 2 did not exercise due diligence which is expected from an ordinary prudent doctor, but the acts or omissions were not reckless or patently wanton to invite criminal liability."

"Evidently, no such “gross lack of competence or recklessness” has been detected on part of the Petitioners. Even otherwise, the complainant has stated that she does not wish to pursue any proceedings arising out of the present FIR and she is satisfied with the compensation amount received by her," it further noted.

Even though the court sympathized wuth the patient, relying on the medical opinion, it opined that the incident was "unintentional".

"This Court is fully cognizant of the discomfort suffered by the patient due to the inadvertent retention of a foreign object in her abdomen, which is unquestionably a matter of profound concern and merits unequivocal censure, as medical professionals are entrusted with the exacting duty of care. Nevertheless, the record, specifically the medical opinion obtained, reveals that the incident was unintentional and due oversight, bereft of the necessary mens rea and such degree of rashness to attract the rigours of a criminal trial," observed the HC bench.

It opined that at best, the facts could have delineated a civil liability. However, noting that the name of the doctor was removed from the State Medical Register of Delhi Medical Council for 30 days and also noting that disciplinary action was directed against the scrub nurse who incorrectly counter the number of the mops, the Court opined that "continuance of the proceedings will only cause undue harassment to all the parties and will be an abuse of the process of the Court."

Even though the HC bench quashed the FIR, it imposed a cost on the hospital and the doctor and ordered, "However, keeping in mind the fact that the State machinery has been put to motion and the chargesheet was filed, ends of justice would be served if the Petitioners are put to cost. In view of the above, FIR No.455/2022 and all consequential proceedings arising therefrom are quashed, subject to payment of total cost of ₹25,000/- by Petitioners, to be deposited with the Delhi Police Martyrs’ Fund, within a period of four weeks from date."

To view the order, click on the link below:

https://medicaldialogues.in/pdf_upload/delhi-hc-quashes-fir-314116.pdf

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