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2017 Supreme(Del) 3686
IN THE HIGH COURT OF DELHI AT NEW DELHI
J.R. MIDHA, J.
Sabiha Khan - Appellant
Versus
UOI - Respondent
RFA 261 of 2007
Decided On : 11-09-2017
For the Appellant :Ms. Aishwarya Bhati, Mr. Jaideep Singh, Ms. Tanuja Patra, Advocates
For the Respondent:Mr. Jaswinder Singh, Advocate
The main legal point established in the judgment is the liability of the respondent for gross negligence in medical treatment, leading to severe complications and subsequent surgeries, warranting enhanced compensation.
Headnote:
negligence - medical malpractice - Army Base Hospital - 1999 Act, Section 6 - Summary: The court found gross negligence on the part of the respondent in leaving a packing gauze/swab during the surgery, leading to severe complications and subsequent surgeries. The court held the respondent liable for the negligence and awarded enhanced compensation.
Fact of the Case:
The appellant underwent surgery at the Army Base Hospital in 1999, during which a packing gauze/swab was left inside her abdomen. This led to severe complications, subsequent surgeries, and ongoing medical treatment.
Finding of the Court:
The court found gross negligence on the part of the respondent, leading to severe complications and subsequent surgeries. The court held the respondent liable for the negligence and awarded enhanced compensation.
Issues: 1. Whether the compensation awarded by the Trial Court warrants enhancement? 2. Whether the incisional hernia suffered by the appellant has a casual connection with the first surgery performed by the respondent?
Ratio Decidendi: The court held that the negligence of the respondent in leaving a packing gauze/swab during the surgery led to severe complications and subsequent surgeries, establishing the respondent's liability for the negligence.
Final Decision: The appeal was allowed, and the compensation awarded by the Trial Court was enhanced from Rs.1,25,932/- to Rs.5,95,932/-. The appellant was also entitled to interest at 9% per annum on the enhanced amount.
1. The Trial Court has awarded compensation of Rs.1,25,932/-along with interest @ 6% per annum to the appellant. The appellant is seeking the enhancement of the compensation amount.
2. On 14th May, 1999, the appellant suffered stomach ache and was taken to Station Sick Quarters at Air Force Station, New Delhi and was referred to Surgical OPD, Base Hospital, Delhi Cantt. where she was advised to undergo surgery for removal of gall bladder and cyst in the liver. The appellant was entitled to medical treatment in Armed Force Hospitals as her husband retired as Flying Officer (Hony.) from Indian Air Force on 31st July, 1995.
3. On 30th June, 1999, the appellant was admitted at the Base Hospital, Delhi Cantt where she was operated upon by Dr. Col. C.S. Joshi for removal of gall bladder and cyst in the liver on 02nd July, 1999. The appellant was discharged on 06July, 1999.
4. The appellant suffered continuous pain and fever after the surgery and she went to the Base Hospital on 09th July, 1999. The appellant continued to visit the Base Hospital with the aforesaid compliant on 07th August, 1999 and 04th October, 1999 where she was examined and prescribed pain killers.
5. On 22nd November, 1999, the appellant was examined by the Medical Officer at Armed Force Station, New Delhi and was advised special investigation whereupon an ultra-sonography was carried out on 25th November, 1999 which showed existence of some foreign body. On 30th November, 1999, Dr. Captain Sood (Surgeon) examined the appellant’s ultra-sonography report at the Base Hospital but merely prescribed some pain killers.
6. On 11th December, 1999, the appellant was taken to Holy Family Hospital in a serious condition. The appellant was advised immediate surgery as the CAT scan revealed abnormal rounded hypodense mass showing multiple tiny gas pockets covering a large area. The appellant underwent a surgery at Holy Family Hospital by Dr. Pradeep Chadha who removed a large rounded mass inside the abdomen which had badly damaged the intestines and stomach wall. The rounded mass taken out comprised of packing gauze/swab which is used by doctors to soak blood flowing from the operated area during the surgery and was left inside the abdomen during first surgery at the Base Hospital. The appellant was discharged from Holy Family Hospital on 31st December, 1999.
7. The appellant issued a legal notice and thereafter, instituted a suit for compensation of Rs.11,02,500/-. The appellant appeared in the witness box and reiterated the averments made in the complaint. The appellant proved the medical expenditure of Rs.25,932,/-incurred on the second surgery underwent by her. She deposed that her husband was a heart patient and she has three unmarried children, one of them being mentally retarded and fully dependent on her. The appellant’s husband appeared in the witness box as PW-2 and supported the appellant’s case. Dr. Pradeep Chadha, Consultant Surgeon of Holy Family Hospital appeared in the witness box as PW-5 and proved the recovery of the packing gauze/swab from the abdomen of the appellant. PW-5 proved the certificate dated 20th December, 1999 which is reproduced hereunder:-
“Adm.No.14766-99
20th December, 99
TO WHOMSOEVER IT MAY CONCERN
This is to certify that Mrs. Sabiha Khan W/O.Mr.E.A.Khan was admitted on 13.12.99 in this hospital and operated on 15.12.99 wherein a foreign body was recovered from abdomen. She requires further hospitalization of about two weeks more.
Signed
DR. P.CHADHA, MS
Surgeon”
8. The respondent examined Dr. Col. C.S. Joshi as DW-1, who had operated the appellant at the Base Hospital on 02nd July, 1999. DW-1 deposed that he operated the appellant on 02nd July, 1999 for Cholecystectomy and the operation was successful. The appellant was discharged on 06th July, 1999 in normal condition and was advised to take medicines for three days and review thereafter. He further deposed that no foreign body whatsoever was left during the operation. The standard laid dow
