Ramanand B. Raikar - Appellant
Versus
Salgaonkar Medical Research Centre - Respondent
Decided On : 05/19/1993
Complaint NO.2 of 1992
Advocates Appeared :
Lotlikar,Kakodkar. V.G. Shetye,M.G. Tari,M.R. Bharne

Headnote:Consumer Protection Act, 1986 - Sections 2 and 14 - Negligence in Medical Services - Compensation claim - Gauze towel left negligently in abdominal cavity of the complainant, during the operation performed by O.P. No.2 and 3 Post splemectomy fever and septicemia - Complainant had to be treated in another hospital for a period of 71 days - Removal of gauze towel, - Complainant had to suffer hospitalisation and physical, mental distress - Award of Rs.3,30,000/- towards medical and other expenses - Rs. 70,000/- awarded as compensation Amount to be paid by the hospital - Services of O.P. Nos. 2 and 3 were requisitioned by the hospital - Amount to be paid within 30 days.

       Held: From the facts proved and the circumstances of this case, we found that while performing the operation on complainant, OP Nos. 2 & 3 proved to be guilty of negligence. No gauze towel could have remained in the abdominal cavity of complainant, if OP Nos. 2 & 3 acted with ordinary skill and with reasonable care. It is contended by OP Nos. 2 & 3 that they were not negligent while performing the operation. However, they made a common grievance that firstly that no sufficient facilities were available in the hospital of OP No.1 and secondly that if any negligence as regards the forgetting to remove the "gauze towel" from complainant’s stomach is established, then the nurse on duty is liable for the negligence. We are not satisfied with this-explanation because the OP No.1 has undertaken to render the required medical services to complainant and when we find negligence in not removing the gauze towel used in operation, then OP Nos. 2 & 3 and the nurse on duty arc jointly and severally liable for the act of negligence. While concluding this point, we further find that OP No.4, Dr. S.W. Desai although present during the operation did not participate in the operation and, therefore, is not guilty of any negligence. Similarly, OP No.5, Dr. (Mrs) Pai anesthetist is also not guilty in the operation since she was engaged in important job .of administering anaesthesia to keep the patient immobile during the performance of operation. It cannot be said by any stretch of imagination that she had anything to do with act of negligence. (para 14)

       Further held. there is no doubt in our mind that the complainant had to undergo sufferings and sustained financial loss directly as a result of negligence in his treatment in the hospital of OP No.1 at Chicalim. The root cause of complainants sufferings is the gauze towel left negligently during the operation performed by OP Nos. 2 & 3 in 21.1.1991 on behalf of OP No.1. The complainant in his para 8 of his complaint at item No. a, b, c, d & e had mentioned the amount of compensation claimed on account of medical expenses and fees of specialists in Jaslok Hospital amounting to Rs. 9,00,000/-, T.A. by air from Goa to Bombay along with four attendants and taxi expenses of Rs. 10,000/-, medicines of GMC and miscellaneous expenses Rs. 5.000/-, lodging and boarding at Bombay Rs. 10,000/-. We find that the expenses made by the complainant on a, b, c & d are reasonable and supported by receipts and, therefore, complainant is entitled to claim it. The total amount of expenses comes to Rs.3,25,000/-. As regards item No. e, SMRC bill out of Rs. 13,825/-, the complainant paid on 22.1.1991 only Rs. 5,000/-. The receipt is on record. However, it seems that balance has not been paid. Therefore, out of this item, the complainant is entitled to claim Rs. 5,000/-. Thus the total cost comes to Rs. 3,30,000/-. (Para 16)

       Consequently held: It is an established principle of law that employer is liable for act of omission and commission by its employee. In the instant case, Mrs. P.A. Narvekar was a nurse assisting the team of doctors and it was her duty to count the gauze towels after completion of operation. It is an established practice in all the hospitals that the nurse assisting the doctors in operation theatre is accountable for counting of gauze towels issued for the use of doctors during operation. There is an affidavit by one independent Dr. S.D. Laad. He is a well qualified person having done M.S. in general surgery and also trained in England and presently working in Muscat as Consultant in Neuro-Surgery. He has stated in his affidavit that practice of procedure of surgery prevailing all over the world is that surgeon incharge of operation is totally involved in the operation and has to concentrate on treating the patient surgically and are, therefore, no expected to keep the count of the swabs or the instruments and that job is done by the nurse assisting the doctors. Although it is true, yet in the instant case, nurse Mrs. P.A. Narvekar has stated in her affidavit that she had counted the gauze towels. OP Nos. 2 & 3 stated that they did not negligently left a swab in the stomach cavity of the complainant. It is abundantly proved that the gauze towel was left in the stomach cavity of complainant negligently during operation on 21.1.1991. We, therefore, hold that this is a case of proved negligence on the part of OP Nos. 2, 3 & Nurse who were in the employment of OP No.1. It is also found in the bill that OP No. 1 charged Rs. 13,825/- to the complainant for his operation which includes fees to be paid to OP Nos. 2 & 3. There is no privity of contract between .the complainant and OPs. 2 and 3 and, therefore, we have to hold that OP No. 1 is liable to pay the complainant the amount of compensation. (Para 18)

       Result: Complaint allowed accordingly.

       IMPORTANT POINT

       The Hospital who renders services to a patient for consideration is liable for payment of compensation if its services are found deficient.