New Delhi: The National Consumer Disputes Redressal Commission (NCDRC) recently directed a Delhi-based nursing home and its two doctors to pay Rs 5 lakh compensation for leaving a sponge inside the abdomen of the patient while conducting Caesarian delivery (LSCS).
Such a decision was taken by the top consumer court as took note of the Delhi Medical Council order and also the findings of the St. Stephen's Hospital, whose doctors had removed the sponge afterwards.
Holding the treating facility and its doctors guilty of medical negligence, the NCDRC bench ordered, "Based on the discussion above, the Order of State Commission is hereby set aside. The award made by the District Forum is modified. Accordingly, the Opposite Parties are directed to pay Rs. 5 lakh to the Complainant within 6 weeks from the receipt of Copy of this Order, failing which the Opposite Party shall be liable to pay 7% interest till its realization."
The history of the case goes back in 2012, when Dr. A.K.Jain and Dr. Usha Jain had conducted Caesarian delivery (LSCS) of the complainant at Risabh Medical Centre, Delhi. Although the patient had been discharged after a few days of the operation, her condition was not good. Even after removing her stitches, she did not feel well. When she approached the doctor in this regard, the doctors informed her that it was due to a problem of indigestion.
However, her condition worsened and after developing unbearable abdominal pain, and swelling of the abdomen like a balloon, she had been admitted to St. Stephen Hospital at Delhi. While conducting an operation on the complainant, the doctors found an infected sponge and 1.5 liters of pus in the pouch of Douglas (POD). After being discharged from the Hospital, the complainant approached the District Forum Delhi and alleged medical negligence and carelessness on the part of the doctors of Rishabh Medical Centre.
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On the other hand, the doctors and the treating facility denied any negligence on their part and also denied leaving any sponge in the abdomen during the surgery. They also submitted that the complainant had not discussed about her previous Caesarian operation at Rajasthan. Denying any fault on their part, the Medical Centre and its doctors submitted that during the present Caesarian operation, the operating doctor did not touch the back of the uterus, i.e. portion from where alleged sponge was removed.
After considering the submissions made by both the parties, the District Consumer Court partly allowed the complaint and awarded compensation of Rs. 10 lakh against the doctors and the treating facility. Aggrieved, when the doctors approached the State Commission, it dismissed the complaint and exonerated the doctors.
Therefore, challenging the State Commission order, the complainant approached the NCDRC bench and the counsel for the complainant submitted that it was a case of gross negligence on the part of Dr. Usha Jain, who allegedly left the sponge in the abdomen during the LSCS operation.
In support of his argument, the complainant's counsel referred to the Order of the Delhi Medical Council, which mentioned in its order, "It is observed on examination of x-ray no. XR39162 dated 24 September, 2012 of th the St. Stephens Hospital of the patient Swetha that the same was indicative of presence of a foreign body. As per the medical records of St. Stephens Hospital, the patient underwent em. Laparotomy with peritoneal lavage on 24 September, 2012, wherein 1.5 litres of pus th was drained and sponge was found in POD."
The Delhi Medical Council had also noted that "the sponge recovered at St. Stephens Hospital, was left negligently in the abdomen of the patient during LSCS procedure performed at Rishabh Medical Centre."
Holding Dr. Usha Jain guilty, the council had also noted in its judgment, "Dr. Usha Jain made an error in judgement by not investigating diligently the cause of the post-operative abdominal pain reported by the patient and by simply attributing the same to gas."
However, the counsel for the doctors and the facility mainly referred to the LSCS done five years back and claimed that it was the possibility that the sponge remained there since then. Arguing that at the time of LSCS, doctor opens abdomen from front midline and has no access to the back side, the counsel further submitted that there was no chance to miss the alleged sponge in POD which was found by the St. Stephen Hospital.
At this outset, the counsel for the doctors and the hospital also referred to the order passed by the Disciplinary Committee of Delhi Medical Council which had opined "The Council by majority observed that it cannot be conclusively proved that any professional misconduct of gross nature should be attributed to the doctors of Rishabh Medical Centre and a benefit of doubt may be granted to the doctors with an advice to further improve the surgical protocols at the place of their practice particularly implementing WHO surgical safety guidelines and quality standards protocols related surgical safety in its letter and spirit. In view of the same, the punishment of removal of name of Dr. Usha Jain, is not warranted."
Apart from considering the arguments by both the parties, the NCDRC bench also went through the Surgical Text books and the research articles/case reports and noted,
"From the said medical articles inference could be drawn that prevention is always better than cure. WHO surgical safety checklist should be strictly adhered to. In case of discrepancy in count, appropriate action should be taken immediately to decrease morbidity of the patient. In case, patient presents with post-operative complications like fever with abdominal pain or discharge from wound, a high index of suspicion for retained sponge should be considered."Referring to the contention that the sponge was left while the LSCS operation conducted five years ago, the NCDRC bench noted,
"We are surprised how the Opposite Party No. 2, an experienced Gynaecologist, while examining the patient, failed to see the operative scar of the previous LSCS of the instant patient. Secondly, it is more relevant to rely upon the Medical Record of St. Stephen's Hospital. We note at the time of admission, the abdomen was distended, firm mass felt. The Ultrasound done on 24.09.2012 revealed uterus (12.5x9.1x5.1 cm) and a HETEROGENEOUS COLLECTION (MASS) (10X10X10 cm), it was suspected as pus collection. The patient was properly investigated and operated. After the operation, the pus culture sensitivity was done and treated the patient with appropriate antibiotics."
Apart from this, the bench also referred to findings of St. Stephen's Hospital, which had noted, "Abdomen opened by Midline incision, purulent 1.5 litres pus drained, cavity inspected, sponge found in POD. Cavity washed." At this outset, the top consumer court noted,
"Therefore, in our considered view, the sufferings of the patient were due to the pelvic abscess because of retained sponge after LSCS.""We agree that the mistakes can and do happen, at the same time, an operation is a stressful experience, enduring pain and discomfort afterwards can worsen this emotional distress, not only for a patient but also for her husband and loved ones," further noted the court.
The NCDRC bench also referred to Supreme Court judgment in the case of Jacob Mathew Vs. State of Punjab & Anr . [6] and Achutrao H. Khodwa Vs. State of Maharashtra and noted,
"Therefore, following the above principle, in the instant case we have no hesitation to hold the Opposite Parties liable for medical negligence."While deciding on the amount of compensation, the top consumer court noted,
"Regarding the compensation in such injuries and distressing experience, of course, no amount of money can turn back the time and reverse the harm already done, but receiving compensation for unnecessary surgery or surgical errors can at least help the patient to overcome some of the challenges that lie ahead."Referring to Supreme Court orders, the NCDRC bench observed,
"In the instant case, on noticing a foreign body, the sponge was removed at St. Stephen's Hospital. Thus, the operative details (supra) and findings of DMC prove that medical negligence is attributed on the treating doctor (surgeon). Adverting to the quantum of compensation, it is highly subjective in nature in the medical negligence cases. In the instant case, the Complainant has not filed the details of expenses, however, the District Forum awarded Rs. 10 lakh, which, in our view, is on higher side. The Hon'ble Supreme Court categorically cautioned the tribunals, in the case of National Insurance Co. Ltd. vs. Kusuma [10] , observing that the amount of compensation awarded was not expected to be a windfall or bonanza, nor should it be niggardly or a pittance. "Whether there exists a reasonable expectation of pecuniary benefit" was always a mixed question of fact and law, but a mere speculative possibility of benefit was not sufficient. Therefore, in the ends of justice, the compensation is reduced to Rs. 5 (five) lakh, as just and adequate in the instant case."
Therefore, setting aside the State Commission order, the top consumer court ordered,
"Based on the discussion above, the Order of State Commission is hereby set aside. The award made by the District Forum is modified. Accordingly, the Opposite Parties are directed to pay Rs. 5 lakh to the Complainant within 6 weeks from the receipt of Copy of this Order, failing which the Opposite Party shall be liable to pay 7% interest till its realization."To read the NCDRC order, click on the link below.
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