IMPORTANT POINT
Medical negligence – In determining compensation in cases of medical negligence, balance has to be struck between demands of person claiming compensation, as also interests of those being made liable to pay – Compensation by its very nature, has to be just.

JUDGMENT :

SANJAY KAROL, J.

1. Leave granted.

2. In ordinary circumstances, a procedure concerning appendicitis is considered to be routine. It did not turn out to be so for Jyoti Devi.¹ [Hereafter ‘claimant-appellant’] She was admitted to Suket Hospital, Sundernagar, Mandi, Himachal Pradesh on 28th June 2005 and had her appendicitis removed by Dr. Anil Chauhan, Senior Surgeon, Suket Hospital. Post surgery, she was discharged on 30th June 2005. However, her ordeal did not end there. She suffered continuous pains near the surgical site, as such she was admitted again on 26th July 2005 but was discharged the next day with the assurance that no further pain would be suffered by her. She was further treated by one Dr. L.D. Vaidya of Mandav Hospital, Mandi, on the reference of Dr. Anil Chauhan respondent no. 2 herein. Yet again, there was no end to her suffering. This process continued for a period of four years.

3. The claimant - appellant eventually landed up for treatment at the Post Graduate Institute of Medical Science, Chandigarh. Upon investigation, it was found that a 2.5 cm foreign body (needle) “is present below the anterior abdominal wall in the preveside region just medial to previous abdominal scar (Appendectomy)” for which a further surgery had to be performed for its removal.

4. Alleging negligence on the part of the respondent - Suket Hospital, a claim was brought for the “huge pain and spent money on treatment” totalling to Rs. 19,80,000/-.

5. The District Consumer Disputes Redressal Forum, Mandi, H.P.² [For short ‘District Forum’], while adjudicating Complaint Case No. 262 of 2011 vide award dated 18th December, 2013 under Section 12 of the Consumer Protection Act, 1986, concluded as under:

“15. In the case at hand, the complainant has suffered physical pain for more than five years due to negligence of opposite parties no. 1 and 2......we feel that compensation for Rs. 5,00,000/- in lump sum is just and proper to meet out the injury of the complainant. …Opposite parties no. 3 and 4 have taken plea that they are only liable for bodily injury as per the contract for death, injury, illness or disease of or any person. In the present case the complainant was operated by opposite party no. 2 for appendicitis but after operation, the complainant developed pain and pus started oozing out from stitches and she was operated at PGI where needle was extracted by the doctor from her abdomen. Therefore, the case of the complainant is covered under injury and illness and opposite parties no. 3 and 4 are liable to pay compensation awarded against opposite parties no. 1 and 2 being the insurers”

6. On appeal preferred by the present respondents (First Appeal No. 70 of 2014 dated 23rd September 2014) the H.P. State Consumer Disputes Redressal Commission, Shimla³ [For short ‘State Commission’] observed that:

“......needle was not left at the site of surgery, at the Hospital of the appellants, when the complainant was operated for removal of appendicitis, yet from an overall reading of the pleadings and evidence on record, it can be said that surgery conducted at the clinic of the appellants, was the cause of pain, which the complainant had been having at-least upto December, 2008, when the pus was drained out.”

7. The respondents herein were held liable to compensate the appellant for the physical pain, mental agony, and expenses incurred by her, to the tune of Rs. 1,00,000/- thereby partly allowing the respondent’s appeal.

8. The National Consumer Disputes Redressal Commission⁴ [For brevity ‘NCDRC’] in the Revision Petition 57 of 2015 arising out of the order of the State Commission observed that the post-operative care provided by the respondents was casual and fell short of the standard of medical care. They had failed to investigate the non-healing surgical wound thereby constituting a deficiency in service. The NCDRC refused to accept the argument that since the appellant had received care at other hospitals as well it would be difficul