Judicial Analysis Court Copy Headnote Facts Arguments Court observation

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Sudip Ahluwalia, Presiding Member and AVM J. Rajendra, AVSM VSM (Retd.), Member
M/s. Clinic Nallam and Anr. – Appellants
versus
A. Helen Victoria and Anr. – Respondents
First Appeal No. 296 of 2012
(Against the Order dated 20/04/2012 in Complaint No. 2/2004 of the State Commission Pondicherry)
Decided on 10.11.2023

Counsel for the Parties:
For the Appellants:Mr. Senthil Jagadeeshan and Mr. Sajal Jain, Advocates
For the Respondent No.1:Mr. Akur Raj, Mrs. Nikita Raj, Mr. Tushar Bhalla and Mr. Sarthak Dora, Advocates
For the Respondent No.2: Not Appeared

IMPORTANT POINTS
(1) Foreign object – It is established by the Complainant that the foreign object viz. bolt and nut was left in the abdomen of the complainant negligently by OP-2 while performing the abdominal hysterectomy surgery on her on 24.06.1991. the OP-3 assisted the same and dressed the surgery wounds and prescribed medicines.
(2) Proper Compensation – While the complainant did not produce any documents in respect of financial losses caused to her towards her treatment for 12 years and other losses due to erroneous and negligent operation performed by the OPs, she deserves to be appropriately compensated.

Headnote:
Consumer Protection Act, 1986 – Section 19 [Consumer Protection Act, 2019 – Section 51] – Appeal – Services – Medical Negligence – If attributable – Presence of foreign objects – Post Surgery – Surgery Wounds – Compensation – Award of – The Complainant produced documentary evidence for the first operation by OP-2 with the assistance of OP-3 and, after her discharge she was readmitted on 17.07.1991 in the same clinic for continued treatment and discharged on the same day. While the OPs contended that these documents are fabricated for the purpose of this case and disowned the same, however, they neither raised any objection in marking these documents on the side of the Complainant nor filed any document on their side pertaining to the period under dispute, to confront her claim. Thus, it is an established fact that the hysterectomy (uterus removal) was performed on 24.06.1991 in OP-1 clinic by OP-2. Thereafter, she suffered several medical complications as discussed above and finally when an ultrasound scanning was done, a foreign object i.e. bolt and nut were found in her stomach in November 2003. She immediately underwent surgery on 10.12.2003 and the ‘Bolt and Nut’ were removed from the abdomen of the Complainant. There is no evidence of any other surgery that the Complainant had undergone. Therefore, it is established by the Complainant that the foreign object viz. bolt and nut was left in the abdomen of the complainant negligently by OP-2 while performing the abdominal hysterectomy surgery on her on 24.06.1991. the OP-3 assisted the same and dressed the surgery wounds and prescribed medicines – While the complainant did not produce any documents in respect of financial losses caused to her towards her treatment for 12 years and other losses due to erroneous and negligent operation performed by the OPs, she deserves to be appropriately compensated. Further, she was in distress and suffering due to the deficiency and negligence. The compensation for the same was appropriately determined by the learned State Commission – Appeal dismissed. [Paras 5 to 22].
Result: Appeal dismissed.

ORDER

AVM J. Rajendra, AVSM, VSM (Retd.), Member—The Appellant filed the instant Appeal under section 19 of the Consumer Protection Act, 1986 (in short “the Act”), against the Order dated 20.04.2012 passed by the State Consumer Disputes Redressal Commission, Puducherry (hereinafter referred to as the “State Commission”) in Consumer Complaint No. 2 of 2004, wherein the State Commission partly allowed the Complaint filed by the Complainant.

2. For the sake of Convenience, the parties in the present matter being referred to as position held in Consumer Complaint before the State Commission. Smt A. Helen Victoria is identified as the Complainant or the Patient (Respondent No. 1 herein). While M/s. Clinic Nallam, a private nursing home identified as Opposite Party-1 (Appellant No. 1 herein) Dr. V. Nallam is referred to as OP-2 (Appellant No. 2 herein) and Dr. Sreeramamurthy is identified as OP-3 (Respondent No. 2 herein).

3. The facts of the case as per the Complainant are that on 24.06.1991, the complainant underwent an abdominal hysterectomy at the OP-1 nursing home in Pondicherry, performed by Dr. V. Nallam (OP-2) and Asst. Surgeon Dr. Sreeramamurthy (OP-3). The histopathology report indicated ‘Chronic Cervicitis’. Following the surgery, the Complainant experienced symptoms of giddiness and shivering, leading to her admission to the Intensive Care Unit on 17.07.1991. A provisional diagnosis suggested ‘Urinary Tract Infection’, for which the OPs provided treatment, and the complainant was discharged. OP-3 conducted dressings for the surgery wounds, sometimes even at the complainant’s residence. On one occasion, OP-3 observed exposed unhealed wounds, treated the complainant, and prescribed medications ‘proxyvon’ for stomach-ache and other medicines for her headache. Despite continued treatments, her health deteriorated and she could not do her day-to-day home activities and more so, she became dependent upon her family for everything. During 1994, she developed severe headaches and consulted Dr. Srinivasan, an ophthalmologist in Pondicherry, who prescribed power glasses that temporarily relieved her headache, while she continued taking proxyvon, as advised by OP-3, for stomach pain. Her deteriorating health caused significant distress in the family and her husband suffered massive heart attack on 22.09.1995. Overwhelmed with worry, she also suffered chest pain on 23.09.1995, leading to her admission to ICU after suffering a mild heart attack.

4. During 1997, the Complainant sought medical help from Dr. Janarthanan, a renowned urologist in Pondicherry, due to traces of blood in her urine. Following his advice, she underwent a kidney X-ray, revealing a ‘butterfly’ shaped object. However, no appropriate guidance was provided by the doctor. In 1998, she experienced similar stomach problems, vomiting and coughing. OP-3 visited her at home and prescribed a ten-day course of injections. With no improvement even after two months, she consulted Dr. Dhiiip Kumar Bhaliga at Govt General Hospital, Pondicherry, and later underwent homeopathic treatment based on his recommendation for one year. Despite these efforts, her condition did not improve. Between 2001 and 03.10.2003, she took treatments from Dr. TB Kasthuri, Dr. Ramesh, and Dr. Slvadasan, specialists in various fields, but her ailment persisted without improvement. Ultimately, on 03.10.2003, she consulted Dr. Mini Ravi, a Obstetrician and Gynecologist. After a thorough examination, Dr. Ravi diagnosed a poorly delineated object approximately 2.5 cm in size, superior to the vault, which needed to be removed through major abdominal surgery. Following this, Dr Kasthurl advised another scan at Govt General Hospital, Pondicherry, which was done on 04.10.2003. Despite the removal of the uterus on 24.06.1991, the scan revealed uterus was intact, confirming the presence of a foreign body. Seeing this, Dr. Kasthurl recommended another ultrasound scan on 11.11.2003 which revealed the foreign obje