THE HON’BLE SRI JUSTICE K.C.BHANU APPEAL SUIT NO.2730 OF 1993 DATED:29-11- 2010. Between Philadalphia Leprosy Hospital, rep. By its Superintendent Dr.G.Rajam Babu … Appellant-Defendant And Smt. D.Vijayalakshmi …Respondent-Plaintiff THE HON’BLE SRI JUSTICE K.C.BHANU APPEAL SUIT NO.2730 OF 1993 JUDGMENT: This appeal is filed against the judgment and decree, dated 26-11- 1992 in O.S.No.187 of 1987 on the file of the Subordinate Judge, Bobbili, whereunder and whereby the suit filed for recovery of a sum of Rs.58,000/- together with interest at 12% per annum and costs was partly decreed for Rs.30,884/- with proportionate costs and subsequent interest at 12% per annum from the date of suit till the date of realization. 2. The appellant herein is the defendant and the respondent herein is the plaintiff in the suit. 3. The averments of the plaint in brief are as follows: The plaintiff who was residing at Delhi came to her parents house Salur along with her husband for confinement during the month of September, 1985. The plaintiff went to the defendant’s hospital at Salur and she was examined preliminarily and advised to join in the hospital and accordingly, she admitted in the hospital on 19-10-1985 for delivery as an in patient. Three days thereafter it was found that the plaintiff might not be able to have a normal delivery as it was becoming difficult for her, decided to conduct a Cessarian operation and conducted the same on 22-10-1985 at about 8.30 P.M. The plaintiff delivered a healthy baby also and she continued to stay in the hospital as an in patient till 01-11-1985 and on the same day she was discharged from the hospital. Later she was complaining severe pain and swelling over the operated area. The swelling was carefully intensified and got opened by itself suddenly almost within just less than 2 months after discharge from the hospital. The wound was lot of foul smelling accumulated puss came out of it. The plaintiff went to the defendant’s hospital, where she was dressed and cleaned the wound superficially and advised some medicines. In spite of that she suffered pain and she was assured that in due course of time, it will subside. The plaintiff was taken to Venkateswara Nursing Home on 19-03-1986 and admitted in the hospital as an inpatient on 20-03-1986. The plaintiff was given some external treatment with usual dressing of the wound and she was not surgically dealt with except excision of sinus. She was continued as in patient for 19 days and when she was discharged on the same day the wound burst open itself at her residence. A large quantity of foul smelling puss started coming out of the wound. Again the plaintiff rushed to the Nursing Home and the wound was cleaned after excision of sinus and she was referred to K.G. hospital, where she was joined as an in patient. The doctor decided to open the abdomen after conducting operation for the first time after the cessarian operation at Salur. The doctor after opening the wound and abdomen of the plaintiff, found a foreign body (a mop) of the size of 4 inches x 2 inches in a loop of a small bowel. He thought it fit TML to take the assistance of the Surgeon for further examination TML and surgery and the same is carried out by Dr. T.S.Prasad, M.S. of K.G. Hospital, Visakhapatnam. The plaintiff for the first time got relief of the pain slowly from the time of the operation at the K.G. hospital, Visakhapatnam after the foreign body was removed from her body. The plaintiff suffered pain nearly for a period of seven months. The defendant hospital authorities conducted the cessarian operation to the plaintiff carelessly, negligently and recklessly kept the foreign body inside the loop of the small bowel of the abdomen of the plaintiff, as a result, puss started accumulating around it and by lapse of time deteriorated her health and left her with severe pain and suffering. The defendant hospital authorities are responsible for leaving the foreign body. They collected Rs.1,598/- from the plaintiff for cessarian operation and she was also made to purchase medicines as per the prescription given by the doctors. She spent Rs.250/- for her transport to Visakhapatnam. She incurred heavy expenditure at Visakhapatnam during her stay at Venkateswara Nursing Home. Till she discharged from the hospital, her baby could not be given natural mother’s milk. During her suffering, she incurred Rs.30,000/- and the defendant’s hospital authorities are responsible for such expenditure by their negligent act and liable to pay the amount. Though the plaintiff is entitled to claim more damages, she is limiting her claim to Rs.28,000/- as damages besides the amount of Rs.30,000/- spent by her at the defendant’s hospital. She got issued a lawyer’s notice, for which the defendant sent a reply stating that the matter was being looked into. Hence, the suit. 4. The defendant filed written statement denying the averments in the plaint. It is stated that the plaintiff came to the Mission hospital at Salur in October, 1985 for her confinement. She was referred to Mission hospital by local Medical Practitioner on 07-09-1985 and she was found that she had Urinary Track infection and she was also anemic. She was admitted in the hospital on 20-10-1985. It was decided to perform cessarian operation with a view to save the mother and child and the operation was done at 7.30 P.M. by Dr.Binal Charles, who was then working in the hospital. The operation was performed with utmost care and caution and every care was taken to see that no instrument used in the operation was left behind and care was also taken to see that no foreign matter was left behind. There were no post operative complications except running temperature. There is no abnormality and anti-biotic intravenous fluids were given to her and plaintiff’s relations insisted of a discharge and she was discharged on 01-11-1985 and was advised to take septron and should also report for check up after a week. There is no record to establish that she complained of pain or that she attended out patient department again. It is not known to the defendant that the plaintiff was taken to Venkateswara Nursing Home where external treatment was given and dressing of the wound. It is also not known to the defendant that after discharge, the wound had burst and large quantities of foul smelling puss has started coming out. The enquiries reveal that plaintiff was admitted at private nursing home and she was operated. There is no negligence on the part of the defendant. It is not known that due to negligence of the defendant hospital, some foreign body was left, as a result, puss accumulated and she suffered pain. The plaintiff after discharge from the defendant hospital, never attended the hospital except on 24-12- 1985. The defendant is also not aware that her health became precarious that she was handicapped and therefore, she could not lead a happy married life. The defendant is not liable to pay any amount. Hence, it prays to dismiss the suit. 5. Basing on the above pleadings, the following issues were settled for trial: 1. Whether the doctors of the defendant hospital were negligent and careless in performing the cessarian operation on the plaintiff? 2. Whether the plaintiff was subjected to severe suffering, physical and mental because of the operation conducted by the doctors of defendant’s hospital? 3. Whether the plaintiff has incurred an expenditure of Rs.30,000/- to get cured from the ill-effects of the said operation? 4. Whether the plaintiff is entitled for the said amount of Rs.30,000/- towards expenses as claimed? 5. Whether the plaintiff is entitled to recover damages in a sum of Rs.28,000/- as claimed? 6. To what relief? 6. On behalf of the plaintiff, P.Ws. 1 to 6 were examined and Exs.A1 to A118 were marked. On behalf of the defendant, D.Ws. 1 and 2 were examined and Exs.B1 was marked and Exs.X1 and X2 were marked through Court. 7. After considering the oral and documentary evidence available on record, the trial Court partly decreed the suit as above. Challenging the said judgment and decree, defendant preferred this appeal. 8. Now the points for determination are; 1) whether there is negligence on the part of the defendant in conducting operation and 2) whether the plaintiff incurred any expenses for curing ill-effects of the operation? 9. Learned counsel appearing for the appellant-defendant contended that absolutely there is no evidence to show that the doctor of defendant’s hospital was negligent in conducting the operation and consequently, she was suffering pain and suffering, that as she has not followed the prescriptions given by the doctor of defendant’s hospital, she might have developed some ill-effects due to the operation, that in the absence of any negligent or carelessness on the part of the doctors, the question of awarding compensation does not arise, that in between two operations, the plaintiff underwent another operation in another Nursing Home and that possibility of inserting foreign material in the second operation in another hospital cannot be ruled out and hence, he prays to set aside the impugned judgment. 10. On the other hand, learned counsel appearing for the respondent-plaintiff contended that in the third operation it was detected about the finding of the foreign material in the abdomen of the plaintiff, that second operation is not a operation in the medical terminology because the wound was cleaned and sutured because after the first operation the wound was severely infected, that from the evidence of P.W.1 and the documents filed on her behalf, it is established beyond preponderance of probability that foreign material was inserted in the first operation itself, which was noticed in the third operation, that the trial Court after elaborate consideration of evidence on record, rightly decreed the suit and there are no grounds to interfere with the same. 11. The factual matrix is not in dispute. P.W.1 went to the hospital of the defendant on 19-10-1985. As per the advice, she admitted in the hospital on the same day. On 22-10-1985 cessarian operation was performed on P.W.1. She delivered a female child. She was in the hospital till 01-11-1985 and thereafter, she was discharged from the hospital. According to the case of P.W.1, even after the operation, she suffered pain and swelling. When the same was brought to the notice of the defendant, doctors advised that she need not worry as the operated injuries would be cured or healed. After discharge, as there was swelling, she went to the hospital again. The stitches at the place of operation was removed by the doctor of defendant’s hospital and lot of puss came out. The doctors examined her and dressed the wound and prescribed some medicines. She used to go to the hospital periodically for dressing of the wound till March, 1986. She filed certain receipts showing about the treatment and she also filed certain documents i.e., prescriptions of the medicines issued by the defendant. The doctor at Salur advised her to go for expert consultation, as the wound was not healed. In the month of March, 1986, her husband came from Delhi and took her to Visakhapatnam for treatment. In pursuance of prescription issued by Venkateswara Nursing Home, she purchased medicines. She was in-patient in the Nursing Home for 20 days. The doctors at the Nursing Home cleaned the wound. Thereafter also, puss started coming out. As per the advise of the doctor, she admitted in the hospital, where she underwent an operation. At that time, the doctors found a gauze and cotton cloth were left inside the stomach. Therefore, she suffered a lot for several months. Thereafter, she issued a legal notice and she also filed receipts issued by King George Hospital. 12. She stated that prior to examination by the defendant, she was not having any complaint. She categorically stated that in Venkateswara Nursing Home, at Visakhapatnam, the wound on the abdomen was cleaned and dressed. She stated that no anesthesia was administered to her and the doctor at Venkateswara Nursing Home did not conduct any operation. It is suggested to her that the defendant hospital is not liable to pay any damages as there was no negligence, but the same was denied. 13. The evidence of P.W.3 is very relevant for the reason that he is the person who conducted second minor operation on 20-03-1986. He categorically stated that by the time of her admission, puss was coming out from the wound and in the last week of March, 1986 incision of sinus was done under the local anesthesia. At the time of suture removal, foul smell was coming out. The wound was cleaned and dressed. Ten days thereafter, she was discharged and the wound was not healed. He advised her to consult a specialist in K.G. hospital. 14. P.W.5 is the doctor who conducted operation on 24-05-1986. At that time, they found there was a moss in the small bowel of 4” long and 2” thick. The bowel was opened near the moss and a foreign body was removed. Ex.X2 is the case sheet. Though he came to the operation theatre in the middle of the operation, but P.W.6 is the person who conducted operation on 24-05-1986. He found a small gause placed in the abdomen. The evidence of P.Ws. 5 and 6 remained unchallenged. Therefore, the finding of gause in the abdomen as noticed by P.Ws. 5 and 6 is not in dispute. Therefore, the gause and cloth must have been inserted negligently at the time of first operation by the defendant or at any rate at the time of conducting operation by P.W.3. According to P.W.3, it is only minor operation, but he has not opened the abdomen. He noticed the length of wound 1 to 1 ½ around the sinus and its depth was about 2” to 4”. He closed the wound in two layers. At the time of excision of sinus, puss and foul smell was emanating. He cleaned the wound by removing sinus. On 27-03-1986, he removed the sutures. It is not the case of the defendant that at the time of P.W.3 conducting operation, the possibility of keeping the foreign material in the abdomen of P.W.1 cannot be ruled out. Therefore, the evidence of P.W.3 leaves no room to doubt that the gause and cloth must have been negligently left in the abdomen of P.W.1 during first operation and thereafter sutures were made. For these reasons, the evidence of P.Ws. 1 to 3 is clear that she suffered a lot because the wound was not healed. In spite of using medicines prescribed, puss was coming. The gauze was noticed by P.Ws. 4 and 5 at the time of second operation. Therefore, the foreign material noticed by P.Ws. 4 and 5 must have been negligently or carelessly left in the abdomen of P.W.1 during first operation. Negligent is a gross culpable neglect or failure to exercise that care and caution that may be taken while conducting the operation. The doctors who conducted operation must ensure that no foreign material is left in the abdomen and the Surgeon of the defendant’s hospital has to take all necessary precautions and perform the surgery with due care and caution. That due care and caution must have not been taken by the doctor of defendant’s hospital, as a result, the foreign material was left in the abdomen of P.W.1. Therefore, there was negligence on the part of the doctor of defendant’s hospital in performing the operation that was conducted on 22-10-1985. In view of the fact that there was no scope or possibility for inserting the foreign material on 20- 03-1986, the irresistible conclusion is that the doctor of the defendant‘s hospital negligently left the foreign material in the abdomen of P.W.1 and that was noticed by P.Ws. 5 and 6 when they performed the operation on 24-05-1986. The moss in the bowel is 4” length and 2” thick. It is not the case of the defendant that P.W.3 while performing operation opened the small bowel. The evidence of P.W.3 would go to show that he opened the sinus and excision of sinus was done. Therefore, there is no possibility for P.W.3 to keep the foreign material in the abdomen of P.W.1. The evidence of P.W.6 is also very clear that if there is no wabbing of abdomen wall, there is no chance of gauze piece getting in because there is no opening. Therefore, it is a case where the doctor of the defendant’s hospital conducted operation negligently for which P.W.1 has suffered for a long time till it was cured in the K.G. Hospital, for which she made several visits to the various doctors and incurred huge expenditure. The prescriptions and bills have been filed to show the expenditure incurred by the plaintiff. Therefore, the trial Court rightly awarded compensation for negligence on the part of the defendant’s hospital in conducting the operation. None of the findings is shown to be perverse or contrary to law so as to call for interference by this Court. 15. Accordingly, the Appeal Suit is dismissed, but in the circumstances of the case, no order as to costs. -------------------- K.C.BHANU, J DATED:29-11- 2010 Hsd