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2010(2) CPR 158 (NC)
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Ashok Bhan, President and B.K. Taimni, Member
Dr. Yoginiben N. Patel —Appellant
versus
Smt. Dekshaben —Respondent
First Appeal No. 215 of 2005
Decided on 17.2.2010
For the Appellant:Mr. Yogender Handoo, Mr. Sumit Bhatia and Ms. Pratibha Singh, Advocates.
For the Respondent:Mr. K.P. Toms and Mr. Vipin Nair, Advocates.
IMPORTANT POINT
Where a swab left in abdomen while taking up caesarean section operation it would constitute negligence on part of doctor.
Headnote:Consumer Protection Act, 1986—Sections 12 and 17—Medical Negligence—Complainant delivered baby in a “caesarean section” operation done by appellant—Complainant continued feeling abdominal pain and sonography done by other doctor showed that swab had been left during caesarean section —Swab was removed in second operation—State Commission holding appellant guilty of negligence awarded compensation of Rs. 1,50,000—Appeal—Doctor who conducted sonography and second operation proved that swab was there and had to be removed—It was for appellant to prove her plea and contention that swab could have been left in intervening period where two more surgeries were carried out but no evidence was examined—No reason to interfere. (Paras 7 to 10)
B.K. Taimini, Member—Appellant was the opposite party before the Commission, where the respondent/complainant had filed a complaint alleging medical negligence on the part of the appellant.
2. Undisputed facts of the case are that the respondent/complainant approached the appellant for purpose of ‘delivery’, for which she was admitted on 28.10.94, where after a ‘caesarean-section’ operation was done on 31.10.94 resulting in, giving birth a baby girl. It was the case of the complainant that she had abdominal pain after delivery for which she consulted the appellant. When the pain was not subsiding, the complainant was taken by her husband and they approached Dr . Paruben Raiyani of Gandhidham, who after getting a sonography report, carried out second surgery to remove the swab (piece of napkin like cloth of white colour). According to the complainant this was a clear case of negligence as the appellant/opposite party after carrying caesarean section for delivering the child left behind the swab affecting her health in the days to come. It is in these circumstances, a complaint was filed. The case was contested by the appellant by filing written version. Evidence were also filed from both the sides and deponents were cross-examined. The State Commission, after hearing the parties, allowed the complaint and directed the appellant to pay Rs.1,50,000 as compensation along with interest @ 9% p.a. from the date of filing of complaint till payment. A cost of Rs.5,000 was also awarded. Aggrieved by this order, this appeal has been filed before us.
3. We, heard the learned counsel for both the parties and perused the material on record. The only point of issue is whether the appellant left behind swab after carrying out the surgery on 31.10.94 or not?
4. We see that the main defence put forward by the appellant, is that sonography reports carried out subsequent to the operation, have not been produced, to prove the case of the complainant, thus, in their view, the complainant has not been able to prove the case of medical negligence, vis-a-vis, the appellant.
5. We have very carefully gone through the written version filed by the appellant before the State Commission and we find that no such plea finds any mention in the written version. They have denied the allegation that any swab was left in the cavity of the complainant while performing the surgery on 31.10.94. There is no .reference to non-production of sonography reports in the written version. To the contrary what is stated in para 7 is, “…. The complainant informed the opponent that she had consulted Dr. Trivedi and X-ray, abdominal scan and blood, urine tests were carried out and the same were normal….” In the affidavit as well as in cross-examination of the complainant, it has been specifically averred that she had not gone to Dr. Trivedi for any sonography. In Para 3 of the cross-examination, the complainant has stated, “…..After showing to Dr. Yoginiben Patel, I had gone to Dr. Trivedi for examination not for sonography: It is not true, if it is said that I had told Dr. Yoginiben Patel that according to opinion of Dr. Trivedi, “everything is alright”...”
6. So much for the sonography report especially of Dr. Trivedi, in our view, the most important examination evidence is of Dr. Paruben Raiyani, which reads as under:
“Smt. Dakshaben Modi had come to me on 26.12.1994 for examination. Her operation stitches condition had become worse and pus was present and foul smell was coming out. Therefore, advice was given for her ultra sonography, from which it certain F.B. was found in abdomen. Due to much pus, higher antibiotics, had been given and dressing was done for about 7-8 days. First pus level became low and thereafter it again increased and as such other General Surgeon Dr. Y.B. Joshi was consulted and thereafter lepotomy operation was performed on 6.1.95 with the help of Dr. Y.B. Joshi. Much foul smell came out on making cut during operation. In the abdomen, napkin size
