Case Title:
Sweta Khandelwal Vs Dr. A.K. Jain & 2 Ors.
Decided on:
03rd June, 2022
Bench:
Hon’ble Justice R.K. Agrawal, President
Hon’ble Dr. S.M. Kantikar, Member
Parties
Petitioner- Sweta Khandelwal ('Patient')
Respondent- Dr. A. K. Jain ('Opposite Party No. 1') and Dr. Usha Jain ('Opposite Party No. 2)
Subject
A Review Petition was filed by the complainant under Section 21(b) of the Consumer Protection Act, 1986 against the Order wherein the State Consumer Disputes Redressal Commission, Delhi accepted the Appeal by the Respondents and set aside the Order to pay ten lakhs as compensation passed by the District Consumer Disputes Redressal Forum.
Important Provisions
Section 21(b) in the Consumer Protection Act, 1986- National Commission shall have jurisdiction to pass appropriate orders against and order decided by any State Commission where it appears Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.
Overview
- Petitioner was a patient who had a Caesarian delivery (LSCS) performed on her by the Respondents on 13.09.2012 at Rishabh Medical Centre, Delhi.
- Petitioner was discharged on 18.09.2012, although her condition was not good. She visited the respondents again stating she was feeling unwell but was told it was a problem of indigestion.
- Petitioner developed unbearable abdominal pain and was admitted to St. Stephen Hospital the next day and was operated on. 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 Respondents, the Petitioner filed a Complaint before the District Forum, East Delhi, which awarded compensation of 10 lakhs against the Respondents.
- Respondents filed the First Appeal before the State Commission stating there was a possibility of the sponge being left in the body at a previous LSCS and the same remained in existence. The State Commission allowed the Appeal, dismissed the Complaint, and set aside the order passed by the District Commission.
- Aggrieved by this decision, the Complainant filed the instant Revision Petition before the National Commission under Section 21(b) of the Consumer Protection Act, 1986.
Issues Raised
- Whether the doctors and the hospital are liable for gross medical negligence?
Advancements made by the Petitioner
- The petitioner submitted that it was a case of gross negligence on the part of the Respondents, who left the sponge in the abdomen of the petitioner during the LSCS operation.
- It was tobrought attention that on examination of the x-ray of the patient at St. Stephens Hospital on 24 September, 2012,post the second LSCS, there was an indication of the presence ofa foreign body.
- It was also submitted that the abdominal ultra-sonography report (USG) of the patient dated 21st January, 2010, after the first LSCS did not reveal any abnormal findings.Thus, it was apparent 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.
- The Petitioner further submitted that Dr. Usha Jain made an error in judgement by not duly investigating the cause of the post-operative abdominal pain reported by the patient and by simply attributing the same to indigestion.
Advancements made by the Respondents
- The Respondents argued that the Petitioner concealed the previous LSCS done five years prior and it was a possibility that the sponge was from the previous procedure.
- They further argued that the USG could not give conclusive findings in the back of the belly. At the time of LSCS the doctor opens up the abdomen from the front midline and has no access to the back side. Therefore, there was no chance to miss the alleged sponge in POD which was found by the St. Stephen Hospital.
- Furthermore, the Respondents submitted the final order passed by the Disciplinary Committee of Delhi Medical Council which stated that there was no conclusive proof of professional misconduct of gross nature and a benefit of doubt should be granted to the doctors with an advice to further improve the surgical protocols at the place of their practice. They held that the punishment of removal of name of Dr. Usha Jain, was not warranted.
Judgement Analysis
- The main issue for consideration before the National Commission was whether the doctors and hospital were liable for the alleged medical negligence.
- The commission observed that the WHO surgical safety checklist should be strictly adhered to. It stated that in case a patient presents post-operative complications such as fever with abdominal pain or discharge from wound, a high index of suspicion for retained sponge should be considered.
- The commission took notice of the fact that the Respondent, an experienced Gynecologist, while examining the patient, failed to notice the operative scar of the previous LSCS of the instant patient.
- Furthermore, the commission stated that it was more relevant to rely upon the Medical Record of St. Stephen’s Hospital wherein it showed that at the time of admission, the abdomen was distended with a firm mass felt which was held to be the sponge found in the POD.Therefore, in the considered opinion of the bench, it was viewed that the sufferings of the patient were due to the pelvic abscess because of a retained sponge after LSCS.
- The commission relied on various judgements of the Supreme Court such as Jacob Mathew v State of Punjab & Anr and Achutrao H. Khodwa v State of Maharashtra to establish the principle of what constitutes medical negligence.It was observed that a medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise reasonable degree of care. Furthermore, Achutrao H. Khodwa’s case concluded that since a foreign body was left in the system during the surgery, it clearly indicated that there was a failure of reasonable degree of care thus leading to medical negligence.
- Therefore, following the principles laid down in the judgements, in the instant case the commission held the Respondents liable for medical negligence and did not accept the Order of Disciplinary Committee of DMC.
- Regarding the compensation, the bench stated that although no amount of money could reverse the harm already done, receiving compensation for unnecessary surgery or surgical errors could at least help the patient to overcome some of the challenges that lie ahead.
- Commission relied upon the case of Nizam's Institute of Medical Sciences vs. Prashant S. Dhanaka, where it was held that the Judge in medical negligence litigation has complete and absolute discretion in awarding compensation unless evidentiary proof of the expenses incurred, or proposed expenses is provided.
- The National Consumer Disputes Redressal Commission however, believed the compensation of 10 lakhs awarded by the District Commission to be on the higher side. Since the petitioner had not filed the details of expenses, the compensation was reduced to 5 lakhs, which was considered just and adequate in the instant case.
Conclusion
- The Order of State Commission was duly set aside while the award made by the District Forum was modified directing the Respondents to pay Rs. 5 lakhs to the Petitioner on account of committing medical negligence.
- The Revision Petition was partly allowed.
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