Mop left inside patient during Whipple's operation: Consumer court slaps Rs 5 lakh compensation on NIMS

Two years after the surgery, the complainant developed unbearable abdominal pain and body pain and therefore she approached the local clinic at Warangal. After undergoing several tests, she had been informed that there was a tumor like object in the abdomen and another operation was necessary for the removal of the same.

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Therefore, she underwent another operation at another hospital and she was informed that there was no tumor but there was surgical Mop in the stomach, which allegedly was left behind during the previous surgery.

Following this, the complainant approached the District Forum and submitted that because of the negligent treatment of NIMS and its doctors, she had to undergo another life risk operation, suffer a lot of mental agony, and sustain physical and monetary loss. Therefore, the complainant prayed for Rs 13,20,000 as compensation.

On the other hand, the NIMS and its Doctor submitted that the complainant was in need of a complicated operation called Pancreatico -Duodenectomy (Whipple's operation). Submitting that all the major operation in the Department of surgical Gastroenterology are done under the supervision of a senior consultant, NIMS further mentioned that at the end of any operation all the disposables and non disposables including surgical MOPs and instruments are accounted for and recorded.

Therefore, the hospital doubted the possibility of a mop being left inside the abdomen. The Hospital also pointed out that the patient did not suffer any permanent disability and submitted that a foreign body accidentally left in the abdomen, once removed will not leave any permanent disability.

NIMS further claimed that there was no negligence on the part of the treating doctors at any stage and reasonable precautions had been taken and the act that was totally accidental perhaps occurred for the first time when more than 25,000 major operations have been conducted. Denying any deficiency in the service, the hospital prayed for the dismissal of the complaint.

After considering the matter and the evidence, the District Forum allowed the complaint partly and directed the NIMS and its doctor to jointly and severally pa the complainant a sum of Rs 60,000 for medical expenses incurred during the second surgery and another Rs 5 lakh towards compensation.

Aggrieved with the order, NIMS approached the State Commission and claimed that the allegation of finding a mop inside the patient's abdomen three years after the first surgery was without any basis and the complainant failed to submit any evidence to prove that the Mop was found in her abdomen.

It was further contended that the ultrasound did not reveal that there was a foreign body- like a surgical mop in the abdomen. NIMS argued that a CT Scan would have clinched the evidence since all the mops used at NIMS have a radio opaque thread embedded in them.

While considering the matter, the State Consumer Court of Telangana noted that the complainant had underwent her second surgery at Sakhamuri Narayana Memorial Nursing Home for the suggestions of cystic lesion arising from the pelvis leading to a suspicion of ovarian tumor.

The Commission also noted that the operation notes during the second surgery mentioned, "when the cyst was relieved fro flimsy adhesion from parieties, it ruptured out along with plenty of pus coming out nearly 300 ml. of pus came out along with MOP."

At this outset, the State Consumer Court noted, "It is evident that upon the second surgery, the 'surgical MOP' wad found that was left behind during the first surgery. This is further supported by the evidence submitted by Dr. H. Sandhya Rani" (who conducted the second surgery).

Dr. Rani had mentioned in her statements, "I found a well defined cystic mass completely occupying the pelvic region, few loops of small intestine adherent to the cystic mass, when the cyst was released from flimsy adhesions from parieties, it ruptured out along with plenty of pus coming out nearly 300 ml. of pus came out along with MOP (Cotton)."

Taking note of this, the Commission observed,

"Although the appellant/Opposite parties have urged the plea that MOPS were counted at the end of the surgery and found to be correct, we find this to be challenged in the face of the evidence and operation notes (Ex.B6) submitted by RW.4. There is no scope for the surgical MOP to be found at the site of surgery, unless appellants/opposite parties 1 & 2 had left it behind during the first surgery conducted on 3.11.2009."

The Commission further noted that Dr. Rani had stated in her evidence that the said material was sent to Histopathology Department for Examination. The necrotic material was foul smelling and covered by necrotic slough, but this report has not been filed.

At this outset, the bench referred to the order in the case of Shanti Thallapali & anr. vs. Surana Sethia Hospital & anr. and noted,

"There is no evidence in the present complaint that the complainant had undergone any other surgical procedure between the 1st surgery at the appellants/opp.parties hospital and 2nd surgery at Sakhamuri Narayana Memorial Nursing Home on 22.7.2012, where the foreign body -mop was detected."

Reference was also made to the top court judgment in the case of Jacob Mathews vs. State of Punjab & anr. and Achuthrao H. Khodwa vs. State of Maharastra, where the court had noted that a medical practitioner must bring to his task a reasonable degree of skill and knowledge and exercise a reasonable degree of care.

"the context of the case in hand, the presence of a foreign body left in the system/body during the surgery, clearly indicates that reasonable care was not taken and therefore it amounts to medical negligence."

"A sponge/mop left for an extended period of time can creat_e seriousproblems. The complainant underwent CT Scan and other investigative tests but the mop was not visualised . This imaging method is not helpful when these markers are disintegrated or fragmented. CT scan is the method of the choice for detecting gossypibomas and possible complications, but the reported C.T. appearances ofgossypibomas are often not pathognomic and most of the times they are non -specific. In the instant case, the Doctor­RW.4 has not visualised this owing to lack of clinical suspicions and familiarity with imaging features as stated in her cross examination."

Opining that there was medical negligence during the operation at NIMS, the Commission noted,

"In general experience, accident in question does not happen without negligence. Mere allegations will not make out a case of negligence. However, in this case it is proved by reliable evidence and is supported by expert evidence. Doctor and hospital are liable for damages where foreign objects are left in the body after surgery. The principle of Res-ipsa -Loquitor comes into play and the burden is on the Doctor/ opposite parties to explain how the incident could have occurred without negligence."

Therefore, agreeing with the District Forum, the Commission noted, "In view of the afore said discussion, we see no reason to interfere with the well appreciated order of the Forum below. Hence the order of the District Forum stands confirmed."

"Time for compliance of the order of District Forum is 45 days, failing which the awarded amounts (Rs.60,000/-+Rs.5 lakhs+Rs.3,000/-) will carry interest @ 7% p.a. till realisation," ordered the State Consumer Court.

To read the order, click on the link below.

https://medicaldialogues.in/pdf_upload/nims-medical-negligence-179700.pdf

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