Tetra Sponge left in abdomen during Caesarean: Commission junks plea seeking enhancement of compensation

Upholding the order modified by the Bihar Commission, the presiding member Dr S M Kantikar of the apex consumer court said that the State Commission was justified while awarding the enhanced compensation to the patient, which does not deserve for further enhancement.

The case concerns a pregnant patient who delivered a male baby through Caesarean Operation at Kurjee, Holy Family Hospital in 2005. Post surgery, the patient started to complain about pain in swelling in abdomen. Ultrasound was done, wherein some foreign body (i.e. Tetra Sponge) was found and the patient was operated again at Shayog Hospital. It was alleged that the patient suffered pain in swelling due to the foreign body left in the abdomen after the Caesarean operation.

Aggrieved, the patient filed a complaint before the District Forum, Patna. On perusal of records, the forum found that the foreign body had really been lost inside the operating area by the operating surgeon of the hospital which caused distinction and formation of lump. The forum pronounced;

"The Hon'ble National Commission in the case law referred to above has clearly found such non removal of gauze left behind under surgery evident from C.T Scan report was a clear cut case of medical negligence. The hospital in this case is definitely guilty of serious deficiency as well as medical negligence as the Tetra Gauge was actually left behind after the first operation which was removed after the second operation by another surgeon. The averment of the hospital that this Tetra Gauge was not histopathological tested does not and cannot give any relief to this opposite. So this is a clear cut case covered under the principle of Res IPSA Loquitor and no opinion of the expert is required in the instant case and the medical negligence on the part of the hospital is proved beyond doubt."

Accordingly, the District Commission directed the hospital to refund Rs 16,437 which was taken for operation of the complainant at the time of operation. It further ordered to pay Rs 18,050 which was paid by the complainant for her second operation at Shayog Hospital. Moreover, the hospital was ordered to pay a compensation of Rs 50,000 for causing unnecessary physical, financial and mental agony to the complainant along with cost of Rs 5,000.

Being aggrieved by the quantum of compensation, the complainant filed an appeal before the State Commission. The appeal was partly allowed and the State Commission enhanced the compensation amount to Rs 22,000/- + Rs 20,000/- and affirmed the other relief awarded by the District Forum.

Dissatisfied by the order of the State Commission, for further enhancement of compensation the complainant again filed the instant revision petition.

After hearing both the parties and perusing the materials on record, NCDRC observed that the medical record of Sahyog Hospital revealed that the complainant and her husband approached Dr S.K Banerjee of Sahyog Hospital Patna for her abdominal pain after the Caesarean operation. The Ultrasound performed at P.K. Imagine Ultrasound Centre revealed a foreign body with mild reaction around adhered omental and bowel loop. Dr S. K. Banerjee performed the operation and removed large size "Tetra Sponge" from the petitioner's abdomen.

The court said;

"It is pertinent to note that admittedly the Complainant was operated again. After the removal of the alleged foreign body (tetra sponge) by Dr. S. K. Banejee, it was not sent for Histopathology examination for final diagnosis. However, on careful perusal of the operative notes, the operating Surgeon recorded about the multiple adhesions of intestinal loops and purulent material. Thus, in my view it was the foreign body reaction, which cannot rule out possibility of tetra sponge as revealed by the Surgeon."

Rely upon the precedents of the Hon'ble Supreme Court in the cases viz 'Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd.[1] and 'Sunil Kumar Maity vs. State Bank of India & Anr', the court noted;

"The State Commission was justified while awarding the enhanced compensation to the Complainant, which, in my view, does not deserve for further enhancement. The award was just and proper to the sufferings of the Complainant. The two fora below have given concurrent findings of facts. I do not find prima facie any jurisdictional, error illegality or material irregularity in the Orders passed by the fora below warranting any interference in the revisional jurisdiction under Section 21(b) of the Consumer Protection Act, 1986."

It eventually dismissed the plea and held;

"Based on the afore discussion, I do not find any merit in the present Revision Petition and the same is dismissed. The parties shall bear their own costs."

To view the original order, click on the link below:

http://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidin=0/0/RP/2622/2011&dtofhearing=2022-09-30