National Consumer Disputes Redressal Commission: While deliberating upon the instant revision petition claiming medical negligence on part of the doctors who had left a sponge in the complainant’s abdomen after performing a LSCS surgery; the coram of Justice R.K. Agarwal (President) and S.M. Kantikar (Member), relying on the cases of Jacob Mathew v. State of Punjab, (2005) 6 SCC 1 and Achutrao Haribhau Khodwa v. State of Maharashtra, (1996) 2 SCC 634, held that, since a foreign body was left in the system of the complainant during the surgery, it clearly indicated a failure of reasonable degree of care thus constitutes medical negligence. Therefore, without any hesitation, the Commission held the opposite parties liable for medical negligence. The Commission also directed the opposite parties to pay Rs. 5 lakhs to the complainant within 6 weeks from the receipt of the copy of this order.
Facts and Legal Trajectory of the Case: Dr. A.K. Jain and Dr. Usha Jain (opposite party 1 and 2) performed a Caesarian delivery (LSCS) of Sweta Khandelwal (complainant) at Rishabh Medical Centre, Delhi. was later discharged on 18-09-2012, even though her condition was not good. She approached the doctor again, but she was sent back stating that everything was fine. Her stitches were removed, but she was still not feeling well. She visited the doctor again, who told her that it was a problem of indigestion. On 23-09-2012, she developed unbearable abdominal pain and her abdomen was swollen like a balloon. On the next date, she was admitted to St. Stephen Hospital at Delhi and was operated. During the operation, the doctors found an infected sponge and 1.5 liters of pus in the pouch of Douglas (POD). She was discharged on 11-10-2012.
Being aggrieved by the alleged carelessness of the Opposite Party, the Complainant filed a Complaint before the District Forum, East Delhi. The District Forum, upon hearing the parties, partly allowed the complaint and awarded a compensation of Rs. 10 lakhs against the opposite parties. Later the opposite parties filed the First Appeal before the State Consumer Disputes Resolution Commission, Delhi; who allowed the Appeal and dismissed the Complaint. Being aggrieved with the decision of the State Commission, the Complainant filed the instant petition.
Contentions: The complainant submitted that this was a case of gross negligence on the part of the opposite party, as it was them who left the sponge inside her abdomen during the LSCS operation.
The complainant also presented the observations made by the Delhi Medical Council who duly 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 and 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”.
Per contra, the opposite parties contended that the complainant concealed the previous LSCS done five years back and it was a possibility that the sponge remained there since then. The opposite parties also submitted the Final Order given by the Disciplinary Committee of the Delhi Medical Council, where they held 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”.
Analysis and Observations: Perusing the rival contentions and facts of the dispute, the Commission considered the relevant surgical textbooks in order to get some clarity into the procedures involved in a LSCS operation.
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Drawing the inference that in cases of Gossypiboma prevention is always better than cure, the Commission noted that WHO surgical safety checklist should be strictly followed in such cases. In case of discrepancies, 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.
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While deliberating upon the argument presented by the opposite party about the possibility of the gauze being left by a previous LSCS operation, the Commission expressed its surprise that an experienced Gynaecologist like the opposite party, while examining the patient, failed to see the operative scar of a previous LSCS operation on the complainant’s body.
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The Commission also examined the Medical Record of St. Stephen’s Hospital where it was noted that the sufferings of the complainant were due to the pelvic abscess because of a retained sponge after LSCS.
Decision: With afore-stated analysis, the Commission concluded that the principles and constituents of medical negligence are now well established via Jacob Mathew and Achutrao Haribhau Khodwa cases. Therefore, based on the facts and reports, the Commission held that the opposite parties have been negligent. “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”.
The Commission also rejected the Final Order of the Disciplinary Committee of the Delhi Medical Council and modified the compensation granted by the District Foram.
With the afore-mentioned decision, the Commission partly allowed the instant revision petition filed under Section 21(b) of the Consumer Protection Act, 1986.
[Sweta Khandelwal v. A.K. Jain, 2022 SCC OnLine NCDRC 70, decided on 03-06-2022]
Advocates who appeared in this case
Anish Verma, Advocate for Petitioner
Pankaj Singhal, Advocate with Dr A.K. Jain – in person for Respondents
