K.C. Gupta, President:
1. Briefly stated the facts are that respondent No. 2 Dr. Kuldip Singh Santokh is the proprietor of Santokh Nursing Home, Kothi No. 846, Sector-38-A, Chandigarh. Smt. Ravinder Kaur was admitted in the said nursing home (respondent No. 1) on 8.6.2004 at about 11.00 A.M. vide case sheet-Annexure R-2 for removal of Fibroid from her uterus as well as for total Hysterectomy. In the nursing home, she was operated upon by Dr. Rashmi Jain (respondent No. 3) on 9.6.2004. She was kept under observation by respondent No. 3 for a few days after operation and she was discharged on 13.6.2004 at about 11.00 a.m. She was told to revisit the nursing home for periodic examination. Accordingly, she visited the nursing home for periodic and regular checkups on 16.6.2004, 19.6.2004, 20.6.2004 till 30.8.2004. The said visits are reflected in Annexure C-1.
2. It was next averred that after the surgery, Smt. Ravinder Kaur developed some complications, including fever, persistent pain in the left abdominal area near the kidneys, drowsiness, nausea, loss of appetite, vomiting and unhealthy vaginal discharge. All these complications were brought to the notice of concerned doctor during checkups but at no point of time, she was advised ultrasound or Swab test. She also lost weight to the extent of 11 kgs. during the period 16.6.2004 to 1.9.2004, as indicated in Annexure C-1. Respondent No. 3 only advised her to take antibiotics and no other measure was ever recommended to her by respondent No. 3.
3. It was further averred that despite the exercise of due care and diligence on the part of Smt. Ravinder Kaur, her condition started deteriorating, instead of showing signs of improvement. She kept on complaining of abdominal pain coupled with nausea. Ultimately, another doctor working with respondent No. 1 namely Dr. Sushmita Sharma advised Ravinder Kaur to get ultrasound done as well as to undergo Swab test vide Annexure C-2. Accordingly, she got conducted ultrasound test and as per record, two MOPS/GAUGES measuring 13½" x 9½" were found in her abdominal cavity. The report of ultrasound test is Annexure C-3 while report of Swab test is Annexure C-4.
4. It was next averred that keeping in view the gravity of the situation, second surgery was performed on 3.9.2004 by Dr. Kuldip Singh Santokh, respondent No. 2 as he had mentioned in his report the existence of massive adhesion in her lower abdomen. The report to this effect is Annexure C-5. An abdominal sponge covered with pus and liquid stool was also found during the course of surgery and one of the small intestines, (referred to as âillume in the report) was found perforated and second sponge was found lying in the fissure of the intestine. In order to mend the ruptured intestine, Dr. Kuldip Singh Santokh has performed a solostomy in the intestine. It was next averred that although Smt. Ravinder Kaur had been visiting the clinic for almost three months after the surgery and had been repeatedly complaining about experiencing nausea, loss of appetite and vomiting but respondent No. 3 Dr. Rashmi Jain at no point of time advised her to go in for any precautionary measures and also did not care to ascertain the reasons behind the occurrence of such complications.
5. It was further averred that despite performing of second surgery, her condition did not improve and in fact her blood pressure dropped to 50 mm-60 mm and she was also found suffering from Septicemia and due to these complications, she went in a state of shock and even her blood pressure had to be revived by administering medicines. When the condition went out of hand, respondent No. 5 Dr. Kalsi referred her to PGIMER in the state of Septicemia shock, as is clear from Annexure C-5 dated 5.9.2004.
6. It was further averred that on 6.9.2004 she was admitted in PGIMER where she was operated upon and her ruptured intestine was again operated upon and illiastomy was conducted. It was also pointed out that due to long bed rest, she had developed Deep Vein Thrombosis (DVT) which means developing of a clot in the vein in the leg which could lead to amputation of the leg and she was ultimately discharged in the PGIMER on 16.9.2004 and she went for two checkups on 18.9.2004 and 25.9.2004. During the said period, her abdomen was kept open and skin round her abdomen was kept intact by using a belt which she had to wear around her waist.
7. It was next averred that despite taking proper care, she fell unconscious on 13.10.2004 and her body started shrinking. She was immediately thereafter rushed to Fortis Heard Care and Multi Speciality Hospital, Mohali where it was found that sodium content in her body had dropped abysmally to a level of â 96 and sugar content in her blood had shot up to 400 PPM. The drop of sodium content in her blood was as a result of Repeated Electrolyte Imbalance which had been caused due to repeated use of antibiotics and regular surgery which had been occasioned due to the presence of gauges inside her body and, in fact, the presence of the gauges had made her abdominal cavity septic which resulted in massive damage to the veins as well as intestines and her body had become brittle and, in fact, she had been virtually conformed to her death bed by the negligent and careless act of respondent No. 3 Dr. Rashmi Jain. The report of Fortis hospital is Annexure C-7. She was discharged from there on 18.10.2004 and again was admitted on 21.10.2004. She was again recommended to get herself admitted in PGIMER where she was admitted on 30.10.2004 in the Intensive Care Unit and ultimately she breathed her last on 17.11.2004. It was next averred that her condition had become intolerable on 13.11.2002 as she started experiencing difficulty in passing her urine, on 14.10.2004 her entire nutrition system collapsed. Her kidneys had stopped functioning and in order to revive her kidneys, the doctors in PGIMER tried to administer a dose of antibiotics which resulted in a sharp fall in her blood pressure. Thereafter, due to increased Septicemia inside her abdominal area, the infection travelled all the way to the blood and her liver and lungs stopped functioning on 16.11.2004 and she was put on life support system and ultimately was declared dead on 17.11.2004. Annexure C-9 is copy of the medical certificate issued by PGIMER.
8. It was further averred that above mentioned facts and circumstances showed that she had suffered due to negligence and deficiency in discharge of service by respondent Nos. 1 to 3 and they (complainants) had suffered immense physical loss, mental agony, harassment as well as financial loss at their hands. They had spent about Rs. 5 lacs on her treatment till her death. Complainant No. 1 Jaswinder Singh is the husband of Smt. Ravinder Kaur, complainant No. 2 Parminder Singh is the son of Ravinder Kaur while complainant No. 3 Smt. Charandeep Kaur is the daughter-in-law of Ravinder Kaur.
9. With these allegations, the complaint was filed on 2.12.2004. They had claimed compensation of Rs. 50 lacs against respondent Nos. 1 to 5, as detailed below:
| Particulars | Amount |
| Medical expenses | Rs. 5,00,000 |
| Loss of Income of the deceased | Rs. 3000 x 12 x 15 =5,40,000 (average female expectancy in India) |
| Loss of business suffered by the Complainant No. 2: | |
| (a) Loss of Revenue | = Rs. 125000 pm x 6 = Rs. 7,50,000 |
| (b) Loss of Capital | = Rs. 5,00,000 |
| (c) Depreciation of immovable/movable assets | = Rs. 50,000 pm x 6 = Rs. 3,00,000 |
| Total : Rs. 15,50,000 | |
| Loss of income of the complainant No. 3 | = Rs. 6000 pm x 6 = Rs. 36,000 |
| who was running a boutique | |
Total Compensation claimed = Rs. 50,00,000
10. Respondent Nos. 1 and 2 filed joint written reply while respondent Nos. 3, 4 and 5 filed their separate written replies. It was also disclosed by respondent Nos. 1 and 2 that their clinic was insured with the New India Assurance Co. Accordingly, New India Assurance Company, SCO No. 58, Sector-26, Chandigarh through its Divisional Manager was allowed to be made party vide order dated 28.1.2005. Respondent No. 4-Insurance Company also filed written reply. However, no relief was claimed against respondent Nos. 6 to 11. On 25.2.2005 proxy Counsel for the complainants Mr. Amanpreet Singh Nagpal made statement that fresh amended memo of complaint would be filed by deleting respondent Nos. 6 to 11. However, it appears that amended memo was not filed but it hardly matters because in the complaint also no relief has been claimed against respondent Nos. 6 to 11.
11. Respondent Nos. 1 and 2 took certain preliminary objections. They stated that they were only responsible for providing hospital care as directed by patient, physician/surgeon and she had herself elected to get herself operated from Dr. Rashmi Jain-respondent No. 3 vide written consent Annexure R-1/A and as far as nursing services were concerned, there was no deficiency in the said services, so, complaint against them was not maintainable. They next stated that the treatment was provided by respondent No. 3 Dr. Rashmi Jain and there was no mention of any mops/gauges of the size of 13½" x 9½" in Annexure C-3. They further stated that the second surgery was performed by respondent No. 5 Dr. K.S. Kalsi, who was engaged by Ravinder Kaur as the deceased as well as her relatives were not satisfied with the services of respondent No. 3. Annexure C-5 spells out the surgery performed by respondent No. 5 Dr. K.S. Kalsi. They next stated that they had no role in the treatment except that the treatment was given by respondent No. 3 in their nursing home.
12. Respondent No. 3 Dr. Rashmi Jain also took certain preliminary objections in her written reply. She stated that there was no privity of contract between her and the complainants as no services were hired by them, nor any fee was settled and no payment was made to her by them. She next stated that payments were made to her by Santokh Nursing Home-respondent No. 1. However, respondent No. 2-Dr. Kuldip Singh Santokh had issued cheque No. 250612 to her as her fee. She further stated that the case of alleged medical negligence needed voluminous evidence and cross-examination of witnesses could not be done by way of summary procedure. She further stated that the mop/gauge pieces were not left during surgery but they were inserted subsequently during douching done by untrained hands as Smt. Ravinder Kaur kept on visiting local doctors. She also stated that she by using her skills had successfully removed fibroid of 5.5 kg with 30 cm diameter, especially, when Ravinder Kaur was refused by number of surgeons, prior to her as she was chronic case of hypertension, asthmatic, severe anaemia, obesity having weight of 95 kg. and severe bleeding for the last one year. After the operation, she was fit and fine and was discharged in the fit condition and stitches were removed on 16.6.2004. She further stated that cause of death was not due to mops but due to the act and conduct of complainants who were more busy in collecting evidence than taking proper care of Ravinder Kaur. She denied that Ravinder Kaur visited her for periodical checkups till 30.8.2004. She next stated that due to vaginal discharge, douching was done by respondent No. 1 and further she had got done douching from some unskilled hands, probably mopes used for douching might have been inserted subsequently by some untrained hands. She also stated that patient had been visiting ESI hospital and ultrasound was done on the advice of ESI hospital. She further stated that Dr. Kalsi was unsuccessful in the surgery due to which he had referred her to the PGIMER. If, he had been successful, then there was no need of third surgery. She next stated that, in fact, complications had arisen mainly in the second surgery due to which she developed Septicemia. She also stated that surgery conducted by her was not the root-cause of her death. She also stated that Dr. Anita Dua and sister Anju had assisted her in performing operation upon Ravinder Kaur and 10 mops were kept before operation and same 10 mops were counted by sister Anju and were counter-checked by Dr. Anita Dua after the surgery was complete and as such there was no negligence on her part. She also stated that she had been blamed only in order to extort money from her.
13. Respondent No. 4 (New India Assurance Company) in its written reply stated that it had issued professional indemnity (Medical establishment) Error and Omission Insurance No. 353300/46/03/00487 for the period from 20.12.2003 to mid-night of 19.12.2004 in favour of insured M/s. Santokh Nursing Home subject to the terms and conditions stated therein and the maximum limit of liability covered for one incidence was Rs. 5 lacs. It further stated that the complaint involved complicated facts and issues which required detailed procedure and only Civil Court was competent to try such type of matters. It denied other allegations.
14. Respondent No. 5 Dr. K.S. Kalsi stated that despite successful surgery done by him to remove the foreign bodies left inside the abdomen after the first surgery, Ravinder Kaur was very slow in improvement and in fact the improvement was negligible and as such he advised her family members to take her to PGIMER in the morning but they took her in the evening.
15. Parties adduced their evidence by way of affidavits.
16. On 24.10.2005 respondent No. 3 filed additional affidavit. In her additional affidavit, she stated that she had taken every care and only 10 mops/swabs were used during the surgery and after the operation same ten mops were counted and the swabs which were alleged to have been discovered within the abdomen were in all likelihood left within the body during several other medical interventions which the patient had undergone after the first surgery in the Santokh Nursing Home on 9.6.2004. She further stated that even if any swab had been left inside the abdomen of the patient in the course of first surgery at Santokh Nursing Home undertaken by her along with Dr. Anita Dua, the same could have been so left only on account of lapse on the part of the Scrub Nurse namely Anju who failed to keep an accurate account of the swabs used during the surgery. It is also stated in it that operating surgeon would not grope inside the abdomen for swabs or instruments, if the swabs and instruments according to the Scrub Nurse had been fully accounted for. The operating surgeon was always acutely aware of the fact that the surgery had to be completed and the incision sutured within the period of the effect of anesthesia. She further stated that Scrub Nurse Anju was not qualified nurse, eligible for working during the course of surgery as she had not done G.N.M. course and Operation Theatre Staff Diploma. If, swabs had been left inside her abdomen, the responsibility for the same would squarely lie on the Scrub Nurse and not on her. However, Smt. Anju, Scrub Nurse at the time of surgery was an employee of Santokh Nursing Home.
17. Mr. N.K. Banka, Advocate appeared on behalf of respondent No. 5 and filed written reply. Later on, none appeared on behalf of respondent No. 5 and as such respondent No. 5 was proceeded against ex parte on 30.8.2005.
18. We have heard Counsel for the complainants Mr. Gaurav Chopra, Counsel for respondent Nos. 1 and 2 Mr. Pradeep Bedi, Counsel for respondent No. 3 Mr. Sudeep Mahajan, Counsel for respondent No. 4 Mr. D.K. Dogra and carefully gone through the file.
19. It is an admitted fact that Smt. Ravinder Kaur (now deceased) was admitted in Santokh Nursing Home, Kothi No. 846, Sector-38-A, Chandigarh (respondent No. 1) on 8.6.2004 for removal of fibroid from her uterus as well as for total hysterectomy. The operation upon Ravinder Kaur was performed by Dr. Rashmi Jain, surgeon (respondent No. 3) on 9.6.2004. It appears that Dr. Rashmi Jain was the visiting doctor to Santokh Nursing Home i.e., she was at the call of Nursing Home for performing Gynae operations. A perusal of photocopy of OPD card of Santokh Nursing Home, Annexure C-1 shows that the operation was performed by respondent No. 3 for total Hysterectomy. She was kept for a few days in the clinic after the operation and was discharged on 16.6.2004. Dr. Rashmi Jain in para 8 of the preliminary objections of her reply has stated that she had performed a successful operation by using her skills for removing fibroid measuring 5.5 kg with 30 cm diameter, especially, when other surgeons had refused to operate her as she was chronic patient of hypertension, asthmatic, severe anemia, obesity, having weight of 95 kg and severe bleeding for the last one year. In her additional affidavit dated 24.10.2005 Dr. Rashmi Jain has stated that she is MBBS, MS (Obst. and Gynae) and she had got her MS (Obst. and Gynae) degree in 1998 and thereafter she had worked as Senior Resident in Himalayan Institute of Medical Sciences, Dehradun till 1999 and during that period, she had carried out several difficult surgeries and since 1999 she was running her own practice in the city of Chandigarh and conducted several complicated surgeries. She further stated that at the time the deceased was admitted in the Santokh Nursing Home on 8.6.2004, she was bleeding profusely through vagina and the bleeding was uncontrollable and knowing fully well that treating such a patient was risky, still she performed operation to save her life. The experience mentioned by her shows that she was not a very experienced doctor. She was having experience of only 5-6 years when she had performed operation. Annexure C-1 shows that Smt. Ravinder Kaur had complained of fever on 20.6.2004. She further complained of abdominal pain and nausea on 19.8.2004. Annexure C-2, photocopy of OPD card further shows that she had complained of pain in epigastric region and nausea. During her visit to nursing home/hospital she was probably checked up by another doctor Sushmita. It was found that she had reduced in weight. She was advised ultrasound and swab test on 30.8.2004. The report regarding ultrasound of the whole abdomen, photocopy of which is on pages 25 to 29, is as under:
âFew of the small bowel loops are dilated measuring 3-3.5 cms in width. In addition hyperechoic area? foreign body seen in right iliac fossa measuring approximately 4-5 cm in length. It is throwing dense distal acoustics.â
20. Therefore, the ultrasound report confirmed the presence of foreign body in the abdomen area. Annexure C-4 shows that Vaginal swab test was conducted on 30.8.2004 and report was received on 31.8.2004. Cefoxitin (CXT), Imipenem and Fosfomycin were found to be sensitive. Annexure C-5 photocopy of the letter written by respondent No. 5 Dr. K.S. Kalsi, Senior Surgeon of Santokh Nursing Home dated 5.9.2004 to the PGI emergency/surgical emergency shows that he had performed second operation on 3.9.2004 but her condition had deteriorated instead of improving. He had also given previous history. He had stated that she had undergone abdominal hysterectomy on 9.6.2004 for uterus fibroid but she continued to have ill-health and abdominal discomfort and vaginal discharge. About a month ago, her condition had deteriorated; oral intake became less and vomited often. Abdominal ultrasound was done on 2.9.2004, it confirmed a foreign body in the abdomen. She was in obstruction. Lapartomy performed on 3.9.2004 revealed peritonitis with massive adhesion in the lower abdomen. With the adhesion, one abdominal sponge covered with pus and liquid stool was found. Ileum was perforated and a second sponge was lying within the linen of ileum 2 ft distal to this perforation. Thus, he had performed second surgery on 3.9.2004 but after second operation, she had not been showing satisfactory improvement. She was also asthmatic. As she had not improved and in view of her condition and having Septicemia, it was decided by Dr. Kalsi in the morning to refer her to the PGI. Thus, ultrasound test of the abdominal area had confirmed presence of foreign bodies. Vaginal swab test had also found that Cefoxitin, Imipenem and Fosfomycin were sensitive.
21. Dr. Rashmi Jain in preliminary objection No. 7 of her written reply has stated that the mop/guage pieces were not left out during the surgery conducted by her but were inserted subsequently during the douching by untrained hands as Ravinder Kaur kept on visiting local doctors. She had further stated that Ravinder Kaur never came to her for douching after 7th July, 2004. In her additional affidavit dated 24.10.2005, in para 3 she has stated as under:
âThat on 9.6.2004, the complainant was operated upon by the deponent for removal of fibroid and uterus. The surgery was carried out successfully and fibroid weighing 5.5 kg. and 30 cm. in diameter was removed from her abdomen along with her uterus. At the end of the surgery, the deponent asked her assistant doctor i.e., Dr. Anita Dua and the Staff Nurse Anju who was the Scrub Nurse for this particular surgery, as to how many swabs and instruments have been used during the operation. The deponent was told by the Scrub Nurse that 10 swabs were used during the course of surgery. The said swabs are used during the surgery for various purposes such as mopping and packing. The deponent thereafter accounted for all the ten swabs which she was told were used during the course of surgery. The swabs which were later alleged to have been discovered within the abdomen were in all likelihood left within the body of the patient during several other medical interventions which the patient underwent after the first surgery at Santokh Hospital on 9.6.2004. If at all, though it is not admitted, if any swab was left inside the abdomen of the patient in the course of first surgery at Santokh Hospital undertaken by the deponent and by Dr. Anita Dua, the same could have been so left only on account of lapse on the part of the Scrub Nurse namely Anju who failed to keep an accurate count of the swabs used during surgery. It is important to keep in view the fact that the operating surgeon will not grope inside the abdomen for swabs or instruments, if the swabs and instruments according to the Scrub Nurse have been fully accounted for. The operating surgeon is always acutely aware of the fact that the surgery has to be completed and the incision sutured within the period of the effect of anesthesia i.e., before the effect of anesthesia starts to wear offâ.
22. Thus, she has tried to put the blame on others and not upon herself. First, she stated that she had counted 10 swabs which were used during the course of surgery and two swabs which were alleged to have been discovered within the abdomen were in all likelihood left in the body during several other medical interventions which the patient underwent after the first surgery at Santokh Nursing Home on 9.6.2004. She has further stated that if at all, though it is not admitted, if any swab was left inside the abdomen of the patient in the course of first surgery at Santokh Nursing Home undertaken by her and by Dr. Anita Dua, the same could have been so left only on account of lapse on the part of the Scrub Nurse namely Anju, who failed to keep an accurate account of the swabs used during the surgery. She had also alleged in para 4 that Anju, the Scrub Nurse was not qualified. For a nurse to be eligible for working as Scrub Nurse during the course of surgery, she is required to have done GNM course and Operation Theatre Staff Diploma and since, she was not fully qualified and that might have led to the lapse on her part, in counting swabs used in the surgery. Thus, she had fastened negligence on the Scrub Nurse and not upon her. It may be true, that Scrub Nurse was required to count the swabs but overall responsibility is of the doctor who performs the operation. She cannot escape liability for negligence by stating that the Scrub Nurse was at fault or that she was not fully qualified. Admittedly, Scrub Nurse Anju was an employee of Santokh Nursing Home. If, she was not qualified, then she could have refused to join her for the conduct of operation. The very fact that she did not object, shows that she had no complaint against her.
23. The presence of foreign body in her abdominal region had been confirmed by the ultrasound test, Annexure C-4 and also from the report of Dr. K.S. Kalsi-respondent No. 5-Annexure C-5 dated 5.9.2004. It is difficult to believe that mops were inserted subsequently to the performing of the first operation by way of douching or in any other manner by untrained hands through vaginal route. Counsel for respondent No. 3 has not been able to cite any instance mentioned in medical jurisprudence regarding insertion of mops through vaginal route or through douching.
24. Counsel for respondent No. 3 contended that medical practitioner faced with an emergency ordinarily tried his/her best to redeem the patient out of his suffering. He/she did not gain anything by acting with negligence or by omitting to do an act. For this contention, he has placed reliance upon an authority of Honble Supreme Court Jacob Mathew v. State of Punjab and Another, III (2005) CPJ 9 (SC)=VI (2005) SLT 1=III (2005) CCR 9 (SC)=(2005) 6 SCC 1, wherein it has been so observed in Para No. 28 at page 22. It is further stated in para 32 at page 24 of the said authority that accident during the course of medical or surgical treatment has a wider meaning. Ordinarily, an accident means an unintended and unforeseen injurious occurrence; something that does not occur in the usual course of events or that could not be reasonably anticipated. Care has to be taken to see that the result of an accident which is exculpatory may not persuade the human mind to confuse it with the consequence of negligence. Therefore, negligence and accident are two different things.
25. It has been observed by Honble Supreme Court in Indian Medical Association v. V.P. Shantha and Others, III (1995) CPJ 1 (SC)=(1995) 6 SCC 651, that where there is deficiency in service rendered by medical practitioner or by hospital or by nursing homes, deficiency has to be judged by applying the test of reasonable skill and care which is applicable in action for damages for negligence. It has further been observed by the Honble Supreme Court in Achutrao Haribhau Khodwa and Others v. State of Maharashtra and Others, I (1996) CLT 532 (SC)=(1996) 2 SCC 634, that a medical practitioner has various duties towards his patient and he must act with a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. This is the least which a patient expects from a doctor. Where mop (towel) is left inside abdomen while conducting sterilization operation by a doctor in hospital which caused pus formation and peritonitis and second operation was performed by another surgeon to ascertain cause of ailment and the mop was removed but the patient ultimately died. Held, doctrine of res ipsa loquitur is applicable and the doctor is liable for negligence. In the present case also two mops were left inside the abdomen while performing first operation on 9.6.2004 by Dr. Rashmi Jain respondent No. 3 due to which her health started deteriorating and there was abdominal discomfort. She lost 11 kgs of weight. The presence of foreign body was confirmed by the ultrasound test. It was conducted by Dr. Ladbans Kaur M.D. (Radiology) on the suggestion of Dr. Sushmita Sharma. Dr. K.S. Kalsi in his letter in Annexure C-5 had also mentioned about the presence of foreign body found on ultrasound examination. He further mentioned that despite performing operation on 9.6.2004 by Dr. Rashmi Jain for removal of uterus fibroid as she had undergone abdomen hysterectomy, her health did not improve and she had vaginal discharge and abdominal discomfort. Abdominal ultrasound done on 2.9.2004 confirmed presence of foreign body in the abdomen. Therefore, Dr. Rashmi Jain did not apply reasonable skill and care and two mops were left inside the abdomen due to her negligence. The principle of res ipsa loquitur applies in this case. The mops left in the abdomen caused pus formation which ultimately led to Septicemia and caused all the subsequent difficulties which led to her death on 17.11.2004. It has also been held by the Madras High Court in Mrs. Arpana Dutta v. Apollo Hospitals Enterprises Ltd. and Others, 2000 (3) Civil Court Cases 441, that where foreign body namely abdominal pack was left behind in abdomen and the doctor failed to produce operation note or notes maintained by hospital staff with regard to counts of pads and instruments used at time of operation and further it was a case of no post operation care and caution in spite of complaint of abdominal pain expressed by patient and removal of foreign object was proved by evidence of doctors who performed second surgery, the doctrine of res ipsa loquitur applies to these facts and hospital and doctors are liable to pay damages suffered by the patient.
26. It is admitted by Dr. Rashmi Jain that she had received fee by cheque from respondent No. 1-Santokh Nursing Home for performing operation upon Ravinder Kaur. It is true that Dr. Rashmi Jain was not directly engaged by Ravinder Kaur or complainants to perform operation but she was engaged by respondent Nos. 1 and 2 to perform operation. She has not performed operation gratuitously or free of cost. The hospital had charged from Ravinder Kaur and in turn had paid to Dr. Rashmi Jain. It has been observed by Honble Supreme Court in Medical Associations case (supra) that where services rendered by doctor/hospital, charges are required to be paid by every body availing of services, fall within the purview of expression âserviceâ as defined in Sub-section 2(1)(o) of the Act. Thus, Dr. Rashmi Jain is amenable to the provisions of the Act along with management of the nursing home jointly and severally. Dr. Rashmi Jain cannot be allowed to throw burden upon sister Anju because it was overall responsibility of Dr. Rashmi Jain to perform the operation and that too successfully and without any negligence and with care and caution which she had failed to perform as she negligently left two mops in the abdomen which caused pus formation and then Septicemia which ultimately led to her death on 17.11.2004.
27. Counsel for respondent No. 3 contended that respondent No. 5 Dr. Kalsi had performed unsuccessful second operation which led to Septicemia and ultimately caused her death and, as such, Dr. Rashmi Jain is not liable. In our opinion the contention of learned Counsel is not tenable. Even if it is presumed though not admitted that second operation was done negligently and caused Septicemia, the fact still remains that but for leaving mops inside the abdomen would not have caused pus formation and rupture of small intestine for which colostomy was done by respondent No. 5 and mops were removed by way of second operation. Respondent No. 5 was employee of respondent Nos. 1 and 2 for which respondent Nos. 1 and 2 are vicariously liable but respondent No. 3 cannot escape liability for her negligent act which was done without due care and caution.
28. Counsel for respondent No. 3 next contended that in the complaint, complicated questions of law and facts were to be decided and as such the same should have been decided by the Civil Court and the State Consumer Commission is not competent to decide the same by way of summary procedure. In our opinion, the contention of learned Counsel is not tenable in view of the authority of Supreme Court in Dr. J.J. Merchant v. Shrinath Chaturvedi, in which it was observed in para D that where death takes place by medical negligence then complaint before the Forum is maintainable and consumer should not be directed to approach Civil Court on the ground that it involved complicated questions of facts and required examination and cross-examination of expert witness which could delay. It has further been observed that complaints in such cases can be speedily disposed of by the procedure that is being followed by the Consumer Disputes Redressal Agencies.
29. Counsel for respondent No. 3 further contended that there was no privity of contract between the complainants and respondent No. 3 and as such the complaint was not maintainable. Again in our opinion, the contention of learned Counsel is not tenable. The deceased Ravinder Kaur was admitted in Santokh Nursing Home for treatment. Respondent No. 3 was visiting doctor to the said nursing home. She was called by Santokh Nursing Home to perform operation upon Ravinder Kaur and she performed the operation and charged fee which was ultimately paid by the deceased Ravinder Kaur or complainants through Santokh Nursing Home. In these circumstances there was privity of contract, though indirectly and Ravinder Kaur had availed the services of Dr. Rashmi Jain which were not free of charge and as such the present complaint comes under the provision of Section 2(1)(o) of the Act and as such complaint is maintainable and Dr. Rashmi Jain is liable for her negligence.
30. Counsel for respondent Nos. 1 and 2 contended that respondent No. 1 was insured with the New India Assurance Company upto 20 lacs which the insurance was liable to pay. On the other hand, Counsel for Insurance Company contended that it is true that the nursing home was insured with it but in one incident it was liable to pay only Rs. 5 lacs. Thus, Insurance Company is liable to reimburse respondent Nos. 1 and 2 to the extent of Rs. 5 lacs with respect to negligence committed by respondent No. 3, the visiting doctor, as the visiting doctor was also insured by the cover note issued by the Insurance Company.
31. Now question arises as to what compensation should be allowed to the complainants. Complainant No. 1 is the husband while complainant No. 2 is the son and complainant No. 3 is daughter-in-law of the deceased. Complainant No. 3 is not legal heir of the deceased. Only complainant Nos. 1 and 2 are legal heirs of deceased Ravinder Kaur and are entitled to compensation. Photocopies of medical bills which have been placed on record i.e., C-10/2 to C-10/39 show that complainants had spent total amount of Rs. 2,66,414.50 p on treatment, operation, etc. of deceased Ravinder Kaur. No evidence has been led by complainant No. 2 about the loss of business suffered by him. However, he must have suffered some loss as for five months he must have remained on his toes without conducting any business. Loss of income suffered by complainant No. 3 cannot be taken into consideration because she is not a legal heir.
32. It is evident that Smt. Ravinder Kaur was aged of 50 years at the time of her death. The life expectancy in India has improved and it is now about 65 years. She was admittedly a housewife. She must be rendering valuable service to her husband and to some extent to her son also who was married. Complainant No. 1 Jaswinder Singh has lost his companion. The loss of companionship cannot be measured in terms of money. If, her income is considered to be Rs. 4,500 per month by guesswork that is she was rendering service of this amount to her family she must be spending 1/3 income upon herself. Therefore, loss to the estate is considered at Rs. 3,000 per month or Rs. 36,000 per annum. Applying multiplier of 13, the total loss comes to Rs. 4,68,000.
33. Now, further question is to be seen as to what compensation be awarded on account of pain, mental agony and distress suffered by the deceased as well as complainant Nos. 1 and 2 due to negligence of respondent No. 3. Ravinder Kaur was operated upon on 9.6.2004 and ultimately she died on 17.11.2004 i.e., after a period of more than five months. For five months, she suffered mental agony, distress and pain to a greater extent. Complainant Nos. 1 and 2 also suffered much mental agony, distress and pain as they could not do any work and remained busy in attending the deceased. Therefore, they are allowed compensation for mental agony, etc. and loss of work to the extent of Rs. five lacs. In all, they are allowed compensation of Rs. 12,34,414.50 p. Respondent No. 1 is a private clinic whose proprietor is respondent No. 2. Respondent Nos. 1 and 2 are vicariously liable for gross negligence of respondent No. 3 in conducting operation which ultimately led to the death of Ravinder Kaur. However, respondent No. 4 is liable to the extent of rupees five lacs only.
34. For the foregoing reasons, complaint is accepted with costs. Complainant Nos. 1 and 2 are allowed compensation of Rs. 12,34,414.50 against respondent Nos. 1 to 4 who are liable jointly and severally to make payment of this amount along with interest @ 6% p.a. from the date of filing complaint till the payment of the amount. Costs are quantified at Rs. 10,000. However, liability of respondent No. 4 is limited to the extent of rupees five lacs only. Complaint of complainant No. 3 Smt. Charandeep Kaur is dismissed.
Copies of the order be communicated to the parties, free of charge.