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2009 DIGILAW 436 (UTT)

ASHUTOSH SAYANA v. LALIT GOSWAMI

2009-08-19

IRSHAD HUSSAIN, KUSUM LATA SHARMA

body2009
ORDER (Per : Justice Irshad Hussain, President) Appellants were the opposite parties in consumer complaint No. 174 of 2004 filed by the complainant Sh. Lalit Goswami. Respondent No. 2 – The New India Assurance Company Limited has been impleaded during the pendency of this appeal on account of Professional Indemnity Insurance Policy issued by it in favour of M/s. Uttaranchal Forest Hospital Trust represented in this case by appellant No. 3. 2. It is a medical negligence case. Complainant Sh. Lalit Goswami got himself admitted in Dr. Susheela Tiwari Memorial Forest Hospital, Haldwani on 01.01.2004 as a case of periumbilical pain, which was referred to right Iliac Fossa and on examination, Appendicular Perforation had been diagnosed. In view thereof, Explorative Laparotomy and Appendectomy and Peritoneal Lavage has been done on the complainant on 02.01.2004 by appellant No. 2 – Dr. Naveen Sharma. Complainant was discharged on 08.01.2004 with the endorsement on discharge summary that he was not in better condition, progress was satisfactory and sutures were in site. He was prescribed medicines to be taken thereafter on discharge. These facts are not in dispute. 3. According to the complainant, he started suffering pain thereafter in his lower abdominal part inspite of taking medicines, as has been advised by appellant Nos. 1 and 2, but no recovery has been shown. Pursuant to the persistent pain problem, the complainant got himself examined and checked by the Doctors of All India Institute of Medical Sciences, New Delhi (hereafter referred to as A.I.I.M.S.) and on examination, was advised to get himself admitted there for thorough check-up. There at A.I.I.M.S., doctors diagnosed that the pain in the lower abdominal part of the complainant has been due to post-operative retained sponge and decided to perform surgery to get the complainant rid of his medical problem. On 01.05.2004, emergency Exploratory laparotomy for removal of sponge was performed and it had been affirmed that retained sponge in small bowel has been causing obstruction and the same was, thus, removed by resection of fistulised small bowel and end to end anastomosis plus right hemicolectomy and end to end leotransverse anastomosis, as has been recorded in the discharge summary of A.I.I.M.S. of the complainant’s treatment. After successful removal of the retained sponge of the earlier operation, complainant felt relieved and filed the consumer complaint with the allegation that the doctor concerned at Dr. After successful removal of the retained sponge of the earlier operation, complainant felt relieved and filed the consumer complaint with the allegation that the doctor concerned at Dr. Susheela Tiwari Memorial Forest Hospital failed to the use reasonable skill and diligence in operating him, as operating doctor left sponge in his stomach, as a result of which, he has suffered physical agony and had to undergo prolonged and expensive treatment. He, therefore, alleged deficiency in service on the part of Dr. Susheela Tiwari memorial Forest Hospital and its doctors and claimed compensation of Rs. 5,00,000/- and litigation expenses amounting to Rs. 5,000/-. 4. The District Forum, on an appreciation of the material on record, partly allowed the consumer complaint against appellant nos. 2 and 3 (opposite party Nos. 2 and 3) holding them jointly and severally liable for paying compensation of Rs. 1,20,000/- to the complainant together with litigation expenses of Rs. 1,500/-, within a period of one month from the date of the order dated 22.08.2005. In default of the payment within the stipulated period, the amount was directed to carry interest @ 9% p.a. The complaint has been dismissed against appellant No. 1 – Dr. Ashutosh Sayana. 5. We have heard the learned counsel for the paraties and have carefully considered their submissions in the light of the facts, circumstances and legal aspects of the case. Considering the peculiar aspects of the case, we have sought expert opinion of the A.I.I.M.S., New Delhi as regards the controversy whether there was probability that the sponge removed on exploratory laparotomy of the complainant at A.I.I.M.S., correlated the same having been left at the time of explorative laparotomy and appendectomy and peritoneal lavage done earlier on the complainant at Dr. Susheela Tiwari Memorial Forest Hospital. 6. Learned counsel for the appellant submitted that there was every possibility that after getting the appendix removed by surgery at Dr. Susheela Tiwari Memorial Forest Hospital, complainant must have received treatment somewhere else and at that time, somehow got the sponge retained in his stomach/abdomen and, therefore, upon removal of the sponge by surgery performed at the A.I.I.M.S. later on 01.05.2004, it could not safely been held that the sponge had, in fact, been left in the stomach/abdomen of the complainant by the operating doctor of Dr. Susheela Tiwari Memorial Forest Hospital on 02.01.2004, when the complainant was operated there for appendectomy and peritoneal lavage. Susheela Tiwari Memorial Forest Hospital on 02.01.2004, when the complainant was operated there for appendectomy and peritoneal lavage. The submission of the learned counsel for the appellant has to be said to be uncalled for, in view of the expert opinion from A.I.I.M.S. vide its report dated 27.07.2009 and wherein, on perusal of all the relevant documents of the first surgery of the complainant at Dr. Susheela Tiwari Memorial Forest Hospital and subsequent surgery at A.I.I.M.S., Professor M.C. Misra, MBBS, MS FRCS (Glasg), FAMS, FACS, Professor and Head, Chief, J.P.N. Apex Trauma Centre, at A.I.I.M.S. in the above report recorded expert opinion as under: “In this case, there is a probability that the sponge was left inside the abdomen, as has been alleged, at the time of explorative laparotomy and appendectomy and peritoneal lavage done earlier on the said patient.” 7. In view of above expert opinion we shall have no hesitation in saying that it is a case to which the principle, as laid down by the maxim, res-ipsa-loquitur, can safely be applied, in view of the fact that the facts of the case speak for themselves that the operating doctor of Dr. Susheela Tiwari Memorial Forest Hospital, namely, Dr. Naveen Sharma – appellant left sponge in the stomach/abdomen at the time of performing the appendectomy and peritoneal lavage on the complainant on 02.01.2004 and that the sponge left, got to be removed by subsequent surgery performed at A.I.I.M.S. on the complainant on 01.05.2004, as evidenced by the discharge summary and relevant record of the hospital. The expert opinion clearly rule out the possibility of the complainant getting the sponge inside his stomach/abdomen left subsequent to the treatment and surgery, which the complainant has had at Dr. Susheela Tiwari Memorial Forest Hospital. It is, thus, obvious that the appellant No. 2 acted carelessly and in a manner, which was not expected of a medical practitioner and in such a case, an action, as has been taken by the complainant, was legally maintainable. At the same time, we may also state that, as has been observed in Spring Meadows Hospital and another Vs. It is, thus, obvious that the appellant No. 2 acted carelessly and in a manner, which was not expected of a medical practitioner and in such a case, an action, as has been taken by the complainant, was legally maintainable. At the same time, we may also state that, as has been observed in Spring Meadows Hospital and another Vs. Harjol Ahluwalia through K.S. Ahluwalia and another; 1998 (4) SCC 39, “very often in a claim for compensation arising out of medical negligence, an area is taken that it is a case of bonafide mistake, which under certain circumstances, may be excusable, but a mistake which would tantamount to negligence, can not be pardoned. In the former case, Court can accept that ordinary human fallibility precludes the liability while in the latter, the conduct of the defendant is considered to had gone beyond the bounds of what is expected of the skill of a reasonably competent doctor”. There can be no doubt that the instant case fall in the above-mentioned later category and for committing medical negligence, the complainant was definitely entitled to reasonable compensation from the doctor who performed the surgery as well as the hospital, with which the doctor was been employed. 8. By the impugned order, appellant Nos. 2 and 3 have been held jointly and severally liable to pay the compensation awarded and since the appellant No. 3 – Dr. Susheela Tiwari Memorial Forest Hospital was covered under the Professional Indemnity Insurance Policy, the order impugned is liable to be modified, so that the appellant Nos. 2 and 3 and respondent No. 2 – The New India Assurance Company Limited, can be held jointly and severally liable to pay the compensation awarded by the District Forum. 9. For the reasons aforesaid, this appeal being devoid of merit, is liable to be dismissed. 10. Appeal is dismissed. The appellant Nos. 2 and 3 Dr. Naveen Sharma and Dr. Susheela Tiwari Memorial Forest Hospital, Haldwani respectively and respondent No. 2 – The New India Assurance Company Limited are held jointly a severally liable to pay to the complainant the amount of compensation and costs awarded by the District Forum. Interest @ 9% p.a. shall be payable on the amount of compensation of Rs. 1,20,000/- from the date of filing of the complaint till actual payment. Costs of the appeal made easy.