Medical Negligence: 12 years post Hysterectomy, patient discovers nut, bolt inside body, NCDRC directs Rs 13.77 Lakh compensation

The order was issued on November 10, 2023 by Justice Sudip Ahluwalia, the Presiding Member, and AVM J Rajendra, AVSM VSM (Retd.), the Member, presiding over the case. The bench was dealing with an appeal filed under Section 19 of the Consumer Protection Act, 1986, against the State Consumer Disputes Redressal Commission, Puducherry's order dated passed in April 2012. The State Commission had partially allowed the Complaint against the clinic moved by the Complainant, prompting the appeal.

The Case

The case stemmed from an event on 24th June 1991, when the patient underwent an abdominal hysterectomy at a nursing home, OP-1, situated in Pondicherry. The surgery was conducted by Dr XYZ (OP-2) and Assistant Surgeon Dr PQR (OP-3). The histopathology report post-surgery indicated 'Chronic Cervicitis.' Following the surgical procedure, the patient encountered distressing symptoms of giddiness and shivering, leading to her hospitalization in the Intensive Care Unit on 17th July 1991.

A tentative diagnosis suggested 'Urinary Tract Infection,' and the OPs administered treatment, subsequently discharging the patient. The Assistant Surgeon performed dressings for the surgical wounds, even providing care at the patient's residence on occasions. During one of these visits, Assistant Surgeon observed unhealed wounds, treated the Complainant, and prescribed 'proxyvon' for stomach-ache alongside other medications for her headaches. Despite consistent treatments, the patient's health deteriorated significantly, impeding her ability to carry out routine household activities, eventually rendering her dependent on her family for support.

By 1994, the patient began experiencing severe headaches and sought medical consultation from Dr Srinivasan, an ophthalmologist in Pondicherry. Dr Srinivasan prescribed corrective glasses that momentarily alleviated her headaches. Additionally, the patient continued to use proxyvon, following the Assistant Surgeon's advice, to manage stomach pain. Her declining health became a source of immense distress within the family, culminating in her husband's severe heart attack on 22nd September 1995. Overwhelmed with anxiety, the patient experienced chest pain the following day, leading to her admission to the Intensive Care Unit post a mild heart attack.

In 1997, the patient sought medical attention from Dr Janarthanan, a well-known urologist in Pondicherry, after noticing traces of blood in her urine. Following the doctor's recommendation, she underwent a kidney X-ray, which revealed an object shaped like a 'butterfly.' Unfortunately, no clear guidance was provided regarding this finding.

The following year, in 1998, she encountered similar stomach issues, accompanied by vomiting and coughing. The Assistant Surgeon, one of the medical practitioners involved in her previous surgery, visited her at home and prescribed a ten-day course of injections. However, despite this treatment, her condition did not improve even after two months. Subsequently, she sought consultation from Dr Dhiiip Kumar Bhaliga at the Govt General Hospital in Pondicherry and later explored homeopathic treatment for a year, based on his recommendation. Unfortunately, these attempts did not yield any improvement in her health.

Between 2001 and 2003, the patient sought treatment from specialists such as Dr TB Kasthuri, Dr Ramesh, and Dr Slvadasan, spanning various medical fields. Despite their expertise and efforts, her ailment persisted without any signs of improvement.

On 3rd October 2003, the patient consulted Dr Mini Ravi, an Obstetrician and Gynecologist, who conducted a thorough examination. Dr Ravi diagnosed the presence of a poorly delineated object approximately 2.5 cm in size, positioned superior to the vault, necessitating major abdominal surgery for removal. Dr Kasthuri advised another scan at the Govt General Hospital, revealing an intact uterus despite its supposed removal during the surgery on 24th June 1991. This confirmed the presence of a foreign object. Subsequent ultrasound scans further confirmed the presence of this foreign object, requiring immediate major surgery.

Dr Kasthuri referred the patient to Dr Dhiiip Kumar Bhaliga, Chief Surgeon at the Govt Hospital. However, since Dr Dhiiip Kumar planned to operate on post-operative adhesions rather than the foreign body, the patient felt uneasy and sought a second opinion from a doctor at East Coast Hospital in Pondicherry. Following confirmation, she underwent major surgery, during which the surgeons discovered and removed foreign objects identified as a 'Nut and Bolt.' Shockingly, these objects had been inadvertently left inside her abdomen during the surgery conducted on 24th June 1991.

The medical practitioners, referred to as the Opposite Parties (OPs), acknowledging their negligence, had offered to perform the necessary corrective operation free of charge. Additionally, they compensated the patient with Rs 50,000 as reparation for the immense pain and suffering she endured over the past 12 years due to their actions.

Submissions

Feeling aggrieved, the patient lodged a Complaint with the State Commission seeking compensation totalling Rs 84,00,000 under Section 14(d) of the Act, an additional Rs 1,00,000 under Section 14(c) of the Act, and requested costs amounting to Rs 5,000. Additionally, she requested an interest rate of 24% per annum on the entire claim until the date of actual payment.

In response, the Opposite Parties (OPs) contested the complaint on various grounds. They argued that the complaint was filed after the limitation period and therefore was not maintainable. They vehemently denied the allegations, claiming that the Complainant had never been admitted to their clinic or undergone any operation. They asserted a lack of records in their possession to verify the Complainant's claims, placing the responsibility on her to substantiate her allegations. The OPs specifically stated that no operation had been conducted by them on her and pointed out that OP-3, during the relevant period, was a government employee and not associated with their hospital.

Moreover, OP-1 (the private nursing home) and OP-2 (the doctor) challenged the credibility of other doctors mentioned by the Complainant, arguing that these doctors were not parties to the complaint and thus were irrelevant. They further refuted the allegation of foreign materials (nut and bolt) removal by the East Coast Hospital. They claimed that the objects, supposed to be made of stainless steel for medical purposes, were found rusted, contradicting the Complainant's assertion. According to the OPs, the Complainant's claims were false, baseless, and exaggerated.

State Commission's Decision

The State Commission partially granted the complaint while also partially dismissing it. They held the opposite parties jointly and severally liable to compensate the complainant in various aspects. This included a reimbursement of Rs.6,00,000 for the medical expenses she incurred. Additionally, they were directed to pay Rs.72,000 to cover the costs related to hiring a household servant maid who assisted the complainant with household chores over a span of 12 years. Moreover, a sum of Rs.7,00,000 was awarded to address the substantial pain, loss of normal life, and the inability to care for her children due to the negligence and lack of proper service provided by the opposite parties. Lastly, Rs.5,000 was allocated to cover the costs incurred during the proceedings.

However, challenging the order, the appellants, ie. the clinic and the doctor, filed an appeal. They sought the revision of the State Commission, Puducherry's decision. Their prayer was to set aside this order and request any other relief or reliefs that the Commission deemed appropriate in consideration of the facts and circumstances of the case to deliver justice.

State Commission's Order Contested

The Appellants' key contentions revolve around the complaint's late filing, 13 years after the alleged surgery, arguing it as time-barred, contrary to legal precedent. They highlighted the lack of evidence regarding the Complainant's condition from 1991 to 2002, despite claims of continuous suffering, and the absence of crucial medical records from a 2003 scan. They noted that reports did not confirm the presence of a foreign object or adequately address examinations by certain doctors. Additionally, they raised concerns about not including various treating doctors as parties to the case and dispute the lack of evidence supporting the awarded amounts, specifically Rs 6,00,000 for medical costs, Rs 72,000 for a maid's salary, and Rs 7,00,000 for pain and loss of normal life, deeming these awards baseless and unsupported.

The Respondent No 1/Complainant did not submit any reply after receiving notice of the Appeal memo. The Assistant Surgeon, identified as OP-3, was absent during the final hearing on 13.10.2023. However, he responded by filing a reply, refuting all accusations and claiming ignorance of the surgery in question. He clarified that he hadn't contested his defense formally by written statement. In his reply, he asserted that the Complainant had consulted him, and he provided medical prescriptions, an assertion unchallenged. The Assistant Surgeon emphasized that he wasn't employed by the clinic and the doctor during that time and presented his service record spanning from 06.02.1980 to 30.09.2013. Additionally, during cross-examination on 09.02.2006, the Complainant's son, Arokiadoss, affirmed that OP-3 was a government doctor in 1991.

The Appellants' counsel reiterated the grounds outlined in the Appeal, focusing on the issues of the lapse of the limitation period and insufficiency of evidence. Regarding the limitation period, it was argued that the State Commission's finding was erroneous as the Complainant had knowledge of the alleged foreign object in 1997. Thus, according to the counsel, the limitation period commenced at that juncture, which the State Commission overlooked. On the aspect of inadequate evidence, emphasis was placed on the testimony of the Complainant's son, who, at 29 years old when he testified, lacked personal knowledge of his mother's admission to the Appellants' clinic. At the time of the alleged surgery, he was about 15 years old and admitted to having no knowledge of it, leading to the failure of the Complainant to substantiate the surgery and negligence claims. The counsel cited various judgments in support of these contentions, including Haryana Urban Development Authority vs. B.K. Sood (2006) 1 SCC 164 among others.

The Counsel for the Respondent (Complainant/Patient) reiterated the case details and evidence presented at the State Commission. He refuted the Appellants' argument regarding the limitation period, stating that in 1997, the Respondent, in immense pain, couldn't suspect the presence of foreign objects left negligently during surgery in 1991. The X-Ray conducted by Dr. Janarthanam did not reveal the foreign object, making it seem like keys, preventing her awareness of the issue. Only later, during an ultrasound scan, was the foreign object discovered, leading to immediate surgery in November 2003. The Counsel emphasized the lack of evidence presented by the Appellants, relying solely on the statement of one Appellant disregarded due to non-appearance and failure to produce necessary documents. He referenced legal judgments indicating adverse inference when a party refrains from testifying and cited a study revealing corrosion in stainless steel used in surgeries. This study suggested the deterioration of such material after fulfilling its surgical purpose, supporting the contention that rusted objects retrieved might have been initially stainless steel.

NCDRC's Observations and Findings

NCDRC thoroughly reviewed the submissions and documents presented, along with the arguments put forth by both parties' legal representatives, and opined that the primary concern revolved around alleged medical negligence stemming from the presence of foreign objects (a nut and bolt) in the Complainant's body following a surgery conducted by the Appellants in 1991. The surgery, an abdominal hysterectomy, was performed at the OP-1 nursing home by Dr XYZ (OP-2) and Dr PQR (OP-3). The central issue pertained to the Appellants' alleged negligence during the surgery and subsequent complications faced by the Complainant.

The Commission observed that the Appellants contested the complaint as time-barred, arguing the Complainant's awareness of the foreign objects in 1997 should have triggered earlier legal action. They lacked substantial evidence linking the alleged surgery to their facility and claim no medical records exist to support the procedure happening at their clinic. They also suggested the possibility of contributory negligence due to the Complainant's treatment by various doctors over the years. According to them, the evidence, including the 2003 surgery, does not definitively link their actions to the Complainant's condition.

The Commission noted that it is confirmed that the Complainant indeed underwent an abdominal hysterectomy on 24.06.1991 at the OP-1 nursing home. Following the surgery, she encountered several health complications, leading to dependency on her family for daily activities. Chronic headaches, stomach pains, and urinary tract infections persisted despite consulting multiple doctors. Eventually, during a consultation with Dr. Mini Ravi in 2003, it was discovered that a foreign object was present, necessitating surgical removal. The subsequent operation at East Coast Hospital revealed a "Nut and Bolt" left inside her during the initial surgery in 1991 by the OPs. The Complainant alleged negligence on the part of the OPs, leading to prolonged suffering and complications, and claimed medical expenses and other costs incurred over 12 years due to their carelessness and negligence.

Regarding the Appellants' objection regarding the complaint's time-barred nature and the assertion that the Complainant was aware of the foreign objects in her body in 1997, the Commission found it essential to consider the circumstances. It noted;

"In 1997, the Complainant sought medical help from Dr. Janarthanan and underwent a kidney X-ray, which revealed a "butterfly-shaped object." However, the doctor did not provide appropriate guidance, leading to the complainant being completely uninformed about the presence of foreign objects...Therefore, clearly, the existence of the foreign body (bolt and nut) inside the body of the Complainant was found and confirmed during October, 2003 and was removed on 10.12.2003."

Since the knowledge of the confirmation of the foreign body marks the start of the limitation period, the complaint was filed within the allowable time frame — specifically, within two years from the date when she became aware of the confirmation of the foreign body inside her, the Commission clarified.

Further, regarding the objection of insufficient evidence, The apex consumer body noted that the Appellant highlighted that the Complainant's son, who testified, lacked personal knowledge of her admission to the Appellants' clinic. Nonetheless, his testimony was based on his understanding as a 15-year-old at that time. However, the focus of his evidence was limited in the case, given that the surgery, the Complainant's suffering, and the removal of the foreign objects were definitively established.

NCDRC observed that the Assistant Surgeon (OP-3) vehemently denied all allegations against him in his response, stating he had no knowledge of the surgery in question and was not employed by OP-1 & 2 during that period, providing his service record from 1980 to 2013 as proof. He admitted having consulted the Complainant and provided medical prescriptions, acknowledging his assistance in the surgery conducted on her by OP-2, indicating his presence and involvement. The documentary evidence and medical prescriptions presented by the Complainant were undisputed. Following the initial surgery, the Complainant revisited OP-1, OP-2, and OP-3 with complaints of giddiness and shivering, later diagnosed with Urinary Tract Infection, and received treatment. Despite this, her continued suffering led her to seek treatment from various hospitals and doctors, causing significant inconvenience and financial losses.

It further noted that the Complainant presented documentary evidence of the initial surgery conducted by OP-2 with the assistance of OP-3, followed by a re-admission to the same clinic for continued treatment on 17.07.1991, subsequently discharged on the same day. Despite the OPs' contention that these documents were fabricated for the case's purpose, they neither objected to marking these documents nor provided any counter documentation to challenge the Complainant's claims. It is evident that the hysterectomy was performed in OP-1 clinic by OP-2 on 24.06.1991. Following this surgery, the Complainant experienced various medical complications until a foreign object, a bolt and nut, was discovered in her abdomen in November 2003. Immediate surgery was undertaken on 10.12.2003, during which the 'Bolt and Nut' were removed from her abdomen. There is no evidence of any other surgery undergone by the Complainant. Therefore, it's established that the foreign object was negligently left in the Complainant's abdomen by OP-2 during the abdominal hysterectomy in 1991, with OP-3 having assisted in the surgery and subsequent treatment.

The Final Verdict

Subsequently, finding that the surgery, the complainant's suffering and the removal of the foreign objects were conclusively established, the NCDRC refused to interfere with the State Commission's order.

It held;

"The complainant contacted several doctors and taken treatment externally after the first operation. She produced prescriptions of her treatment for about 12 years preceding the second operation on 10.12.2003. This indicates the unbearable pain, suffering and hardship she had undergone and the sleepless nights and inability she faced in performing her day-today routine work as house-wife to render valuable service to her husband and her children. In addition, she suffered financial loss during the relevant period. While the complainant did not produce any documents in respect of financial losses caused to her towards her treatment for 12 years and other losses due to erroneous and negligent operation performed by the OPs, she deserves to be appropriately compensated. Further, she was in distress and suffering due to the deficiency and negligence. The compensation for the same was appropriately determined by the learned State Commission."

"On due consideration of the entire evidence and the foregoing discussions, we do not find any reason to interfere with the orders passed by the learned State Commission. The First Appeal No. 296/2012 is, therefore, dismissed."

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