Consumer Court relief to Gynaecologist held negligent for leaving mop inside body during Caesarean

The Apex Commission addressed two appeals filed by the doctor and the patient. The doctor challenged the State Commission’s order issued in 2021 regarding the medical negligence case while the patient moved NCDRC seeking enhancement of comepensation.

The case involved a gynaecologist, the appellant doctor, practising at Dr M. Khan Hospital in Bareilly, who performed a cesarean section on the respondent patient on November 1, 2010. After the operation, the patient and her child were discharged, but on February 16, 2011, she returned to the hospital complaining of abdominal pain, diagnosed as acute colitis. Despite conservative management, her symptoms persisted, leading her to seek further consultation with a gastroenterologist and eventually at the Sanjay Gandhi Post Graduate Institute (SGPGI), Lucknow. Ultrasound examinations revealed abnormalities in her uterus and cervix, prompting further investigations and procedures.

On June 23, 2011, a gauze (mop) soaked in fecal material was found and removed from her vagina. Due to complications, she underwent multiple surgeries, including a transverse loop colostomy.

The patient’s husband filed complaints and an FIR alleging medical negligence against the gynaecologist and the hospital. The Chief Medical Officer (CMO) constituted a medical board to investigate, which found inconclusive evidence due to discrepancies in the size and shape of the mop used in the hospital and the one found in the patient’s genitals. Another medical board, formed at the behest of the District Magistrate, similarly found no evidence of negligence.

Despite these findings, the patient filed a complaint with the UP Medical Council, resulting in the gynaecologist’s suspension for six months, starting from May 1, 2013. The doctor then challenged this decision through a writ petition, which was dismissed by the Allahabad High Court.

The patient (respondent) filed a complaint with the State Commission seeking several reliefs, including compensation for medical negligence, reimbursement of medical expenses, compensation for loss of income, and legal costs. The State Commission ruled in favor of the patient, directing the defendants (gynecologist, the hospital and others) to pay Rs 50 lakhs as compensation, along with interest, Rs 3,90,107.28 for medical expenses, Rs 84,000 for mental agony, and Rs 1 lakh as the cost of proceedings. The defendants were given 30 days to comply, failing which the interest rate would increase to 15% per annum. They were also directed to indemnify the insurance coverage. Both parties appealed to NCDRC against this order, with the appellant (gynecologist and others) seeking its dismissal and the respondent (patient/complainant) seeking an increase in compensation.

The doctor contested the impugned order on several grounds. Firstly, the counsel argued that the principle of res ipsa loquitur, which implies “the thing speaks for itself,” does not apply in this case. They asserted that the elements required for this maxim to be invoked, such as clear evidence of negligence, lack of evidence against the plaintiff, breach of duty of care, and significant injury to the plaintiff, are not met.

Secondly, it was contended that negligence must be established by demonstrating that the defendant acted negligently, ruling out the possibility of the plaintiff or a third party causing the injury, and that the negligence falls within the defendant’s duty of care towards the plaintiff. They argued that the size and shape of the surgical mop recovered from the respondent differ from those used by the doctor, as confirmed by the Enquiry Committee led by the Additional CMO. Additionally, the statement of the OT technician asserted that there was no discrepancy in the number of mops and instruments before and after the caesarean operation.

The counsel highlighted the inconclusive findings of the police investigation, which recorded the statement of Dr. Kapoor from SGPGI, Lucknow, stating that it was not possible to determine whether the mop recovered was left during the first or second caesarean section operation on the patient. Furthermore, the mop was not sent for histopathological examination but was incinerated due to being soaked in fecal matter.

It was contended that the presence of adhesions during surgery indicates inflammation in the area posterior to the uterus, making it feasible that the mop was left during a previous surgery. They suggested that the mop could have been left during an abortion prior to the first caesarean operation in November 2009, considering the patient’s medical history.

Further, the counsel criticized the patient for not cooperating with any of the inquiries ordered by the Additional CMO, the District Magistrate, and the UP Medical Council, and for failing to provide details regarding their past medical history. 

The counsel appearing for the doctor cited medical literature showing that foreign bodies can remain asymptomatic in the human body for an extended period, suggesting that the mop may have manifested symptoms later, as observed in this case.

The counsel further argued that the injury was caused by a third party, and thus, the principle of res ipsa loquitur should not have been invoked by the State Commission. It was contended that the State Commission erred in ignoring the categorical finding that the surgical mops recovered were of different sizes and shapes, as confirmed by the inquiries conducted by the CMO and at the direction of the District Magistrate. Additionally, they point out that the mop recovered from SGPGI, Lucknow, was incinerated, and the statement of the OT Assistant did not indicate any discrepancy in the number of mops used before and after the surgery. Furthermore, it was submitted that the State Commission failed to consider medical literature provided and that the awarded compensation lacked a basis, leading to unjust enrichment.

It was argued that the State Commission’s order relied on conjecture and surmise and the report of the UP Medical Council, which they believe does not qualify as an expert opinion. The appellant doctor cited previous Supreme Court judgments to support their contention that expert opinions must be supported by reasoning. They also challenged the finding that their failure to challenge the UPMC’s report amounted to an admission of negligence, as the suspension period was already over by the time the decision was communicated. The counsel argued that the compensation awarded without establishing deficiency in service was unjustified and arbitrary.

On the other hand, the patient challenged the impugned order for inadequately compensating her. The counsel appearing for the patient claimed that the State Commission overlooked the principle that relief for deficiency in service under Section 14 of the Act should include compensation for any loss or injury suffered due to negligence. The counsel cited Supreme Court judgments to support their argument that compensation should cover expenses already incurred, pain and suffering, lost wages, and future care. They also referenced specific cases where the Supreme Court enhanced compensation in matters involving medical negligence. Additionally, they contended that the doctor’s negligence resulted in medical issues that required them to travel for treatment, causing prolonged suffering and depriving them of caring for their newborn child.

The apex court noted the state commission’s observations which concluded that the doctor, as per the findings of the Medical Council of India, was guilty of negligence, deficiency in services, and professional misconduct. It noted that despite the doctor’s admission that they did not practice for six months as directed by the UP Medical Council, they still filed an appeal before the MCI now NMC, which was subsequently dismissed. The State Commission accepted the findings of the UP Medical Council, approved by the MCI, that the doctor was responsible for leaving the surgical mop in the complainant’s body. It dismissed the argument that the mop may have been left during a previous cesarean operation, as the patient did not experience any pain until after the second cesarean and continuously suffered thereafter.

Furthermore, the State Commission held the hospital negligent for lacking basic and emergency facilities and failing to provide proper care to the patient. It emphasized the duty of doctors to remain present with the patient until the operation is complete and highlights the hospital’s responsibility to uphold the standards of medical care. The State Commission applied the maxim res ipsa loquitur, indicating that the case clearly demonstrates medical negligence without exception. It concluded that the doctor’s  acceptance of the UP Medical Council’s report and the lack of proper facilities and supervision constitute admissions of negligence, leading to the complainant’s success in proving their case.

The finding of the State Commission read: “During the course of argument, the Counsel argued that the complainant was operated before one year and it may happen that this mop might be left at that time. If for the sake of argument, it is presumed that this mop was left during first caesarean, during second cesarean the concerned doctor was unable to detect it and if she detected it, she left it unattended. It is no argument because the complainant did not complain of any pain after the first cesarean and after the second cesarean she continuously suffered from pain and visited various doctors. It was the duty of the hospital to provide all the basic facilities and emergency facilities in case of any untoward happenings. It is the duty of the doctor that she should stay all the time opposite the bed of the patient unless and until the operation is over and the patient has been allowed to go to ICU or Ward. In this case the hospital is also negligent because they want to make money and they have forgotten their oath which was taken before entering into the medical profession. All the abovementioned facilities should be there and if anyone lacks, it will come under deficiency of service and negligence. This is a case where the maxim res ipsa loquitur is applicable in full strength and as per the various judgments of the Hon’ble courts it is clear that it comes under medical negligence without any exception. The guilt has already been admitted during the enquiry as opposite party accepted the enquiry report. So, the complainant has succeeded in proving his case.”

The Commission observed that the issue in the case involved was determining whether the doctor was negligent in medical treatment, whether the doctrine of res ipsa loquitur was correctly applied by the State Commission, and whether the patient  deserves higher compensation according to the principle of restitutio in integrum.

It mentioned that the law regarding medical negligence, as established by the Supreme Court in Jacob Mathew vs. State of Punjab & Anr., is based on the Bolam Test. It emphasizes that negligence must be judged based on the standard of care expected of a reasonable medical practitioner. The court highlighted that the failure to meet this standard, resulting in damage, constitutes negligence. Furthermore, the court clarified that the application of res ipsa loquitur, the principle that the thing speaks for itself, must be cautious in cases of professional negligence, particularly in the medical field. It stressed that adherence to established medical practices defines the standard of care, and negligence cannot be presumed solely based on unfavorable treatment outcomes.

In essence, the Supreme Court’s rulings emphasize the need to establish a breach of duty resulting in damage to prove medical negligence, with a clear understanding of the standard of care expected of medical professionals.

The case revolved around allegations of medical negligence against appellant no.1, a doctor (gynecologist) for leaving a mop of gauze in the abdomen of the patient during a caesarean operation. The mop was discovered through a sonography at SGPGI, Lucknow, prompted by the respondent’s complaints of persistent abdominal pain post-surgery. While reports from separate medical inquiries ordered by the district administration found inconclusive evidence linking the recovered mop to the one used in the hospital, the UP Medical Council concluded negligence, a decision upheld by the Medical Council of India.

The State Commission affirmed this conclusion. The UP Medical Council’s report highlighted the patient’s testimony and the presence of the mop laden with fecal matter, leading to the conclusion of negligence by the doctor.

The decision in this case hinged on the findings of both the Uttar Pradesh Medical Council and MCI, which concurred that the doctor was negligent in leaving the mop in the respondent’s abdomen during surgery. The Ethics Committee of the UPMC, after hearing testimonies and reviewing clinical records, upheld this decision, which was subsequently approved by the Executive Committee of the MCI. The State Commission upheld the medical negligence based on these findings. The doctor argued that the patient’s medical history and the OT Assistant’s testimony were overlooked, and the doctor did not fully accept the UPMC’s decision. Additionally, the timing of the MCI’s decision, just days before the appellant’s suspension ended, was highlighted.

The apex commission noted that while the Uttar Pradesh Medical Council and the MCI suspended the doctor’s license based on their Ethics Committees’ conclusions, these conclusions lacked sufficient reasoning to establish civil liability for medical negligence. The State Commission’s reliance on these reports and the principle of res ipsa loquitur was deemed unsubstantiated, especially given the absence of evidence linking the mop found in the patient’s abdomen to the appellant’s surgery. The patient had a history of previous surgeries, and no conclusive evidence tied the mop to the surgery in question. The Commission noted;

“We find that in this case the breach of duty resulting in medical negligence has not been categorically proven since neither the mop is available as evidence, nor its dimensions conform to the ones used in the appellant no. 2 hospital apart from the evidence of the OT Assistant not being controverted. Further, while the conduct of the appellant has been held deficient from an ethical point of view by the two professional bodies which considered the matter, their reports do not support the claim of the respondent for civil liability of medical negligence. The issue of criminal liability has not been raised since no mens rea has been alleged.

In order to establish deficiency in service, it is imperative that negligence be established. As held by the Hon’ble Supreme Court in Jacob Matthew (supra), “negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued.”

The State Commission’s order in relying merely upon the reports of the UPMC and the MCI has not determined the above. The reliance on the principle of res ipsa loquitor in the present case by the State Commission is also based on the assumption that the mop extracted from the Pouch of Douglas of the respondent was due to the negligence of appellant no. 1 in leaving it in the abdomen during surgery.

As is evident from the records of this case, the respondent patient had admittedly undergone an earlier abortion and a caesarean section operation for the birth of another child. There is no evidence on record to establish whether the mop in question pertained to any of these surgeries or was due to negligence of the appellant doctor during the caesarean section operation conducted by her on 01.1.2010. No reasoning for the finding arrived at by the UP Medical Council or the Medical Council has been provided to bring out the basis for concluding the appellant liable for medical negligence. There is no evidence on record that has been relied upon to reach this conclusion. In the absence of any evidence based finding, the conclusion of these bodies cannot be sustained legally.”

As a result, the decision overturned the State Commission’s order, absolving the doctor of liability and dismissing the patient’s appeal for compensation enhancement. It held;

“In view of the discussion above, we find that liability of appellants no. 1 and 2 as determined by the State Commission cannot be sustained. We therefore set aside the impugned order of the State Commission….In view of the conclusion above, FA 60 of 2022 filed by the respondent patient seeking enhancement of compensation fails.”

To view the original order, click on the link below: