Topic: Mrs. Arpana Dutta vs Apollo Hospitals Enterprises
Mrs. Arpana Dutta vs Apollo Hospitals Enterprises
Equivalent citations: 2002 ACJ 954, AIR 2000 Mad 340, (2000) IIMLJ 772 - Madras High Court - Bench: I D Christian - Date of Judgment: 18 February, 2000
1. Suit for damages.
Plaint allegations briefly stated are as follows :--
Plaintiff is a citizen of India and hails from Guwahati in Assam. She was given in marriage to one Tapan K. Dutta, who is a resident of United States of America. After living in United States of America of some years, the plaintiff along with her husband proceeded to Saudi Arabia and the husband is gainfully employed in Saudi Arabia. The plaintiff is residing with her husband in Saudi Arabia and she is a house wife looking after the house and taking care of her husband and children. By about 1986, the plaintiff developed certain gynaecological problems. When she consulted Doctors, they diagnosed that the plaintiff is having a cyst in one of her ovaries, for which they prescribed certain treatment. Even after she took medicines, she was feeling discomfort and the Doctors abroad advised her to go in for removal of uterus, a surgery known in medical terms as Hysterectomy. It was suggested that only such a surgery will give her relief from her problems. Since the surgery suggested was a major one, which would necessitate a period of recuperation, the plaintiff decided to have the surgery in India, where she could count upon the help from friends and relations to lookafter her during the period of recuperation. When the plaintiff made enquiries in India as to where, she could have best medical care and service, she was recommended to undergo surgery in the second defendant Hospital, namely Apollo Hospitals, Madras, run by the first defendant company. The plaintiff came to know that the second defendant would be charging fees and other charges which are higher in comparison to other private hospitals. The plaintiff was assured that the second defendant would assure highest standard of care commensurate with the charges levied by them. The plaintiff came to India in the month of June, 1991 and obtained a letter of Introduction from one Dr. Zaman, a leading Surgeon in Assam, addressed to the Chairman of the first defendant. She came down to Madras and she met Dr. Prathap C. Reddy, the Chairman, who referred the plaintiff to the third defendant because the plaintiff was suffering from gynaecological problems and the third defendant is a qualified Doctor and a gynaecologist. The third defendant examined the plaintiff and advised her to undergo hysterectomy for removal of the uterus and ovary. The plaintiff was also advised to undergo a Master Health Check-up to find out whether she would be fit for surgery. The reports of the check-up revealed that the plaintiff was having Cystic Overies, Mammary Dysplasia and Cervical Spondylosis. The plaintiff also underwent an ultra sound abdomen test. The third defendant evaluated the various test reports, of the plaintiff and diagnosed the ailment of the plaintiff as a Bilateral Endometriotic Cyst and Uterine Fibroids. The third defendant advised the plaintiff that only course open to her would be to operate upon her for removal of total abdominal hysterectomy. The plaintiff also was informed that it is major surgery, but however, the third defendant assured the plaintiff that she would be taken care of and best care and attention would be given to her and there is no room for any worry. The plaintiff also consented to undergo surgery in the hospital of the second defendant. The plaintiff made a deposit of Rs. 25,000/- towards part of the fees and charges. The plaintiff got herself admitted in the second defendant hospital on 19-6-1991 and the surgery is was to take place on 21-6-1991. After admission, the second defendant hospital conducted certain tests. On 21-6-1991 the plaintiff was taken to the operation theatres in the afternoon and operation was done by the third defendant under general Anaesthesia. The plaintiff was removed from the operation theatre to the ward at about 4.00 pm. on the same day. The surgery was done by the third defendant assisted by other Doctors, nurses and staff attached to the second defendant hospital. The operation notes prepared by the defendants also confirmed that abdomen of the plaintiff was opened by fannenstel incision and uterus was removed along with some mass that was found around the uterus. After the surgery, the plaintiff gained consciousness and talked. After the effect anaesthesia disappeared the plaintiff felt discomfort and severe pain over the abdominal region. The plaintiff was administered pain killers and other drugs to bring down the temperature. Even on the second day, the plaintiff developed an uneasy feeling due to a painful lump which she was able to feel in the abdominal region, which is around the place where the surgical incision was made. When the third defendant came to examine her, the plaintiff complained of pain and an uneasy feeling and she also informed that she felt a lump in the abdominal region. The third defendant after examining her and feeling the lump at the abdominal region, Informed the plaintiff that it must be due to fluid collection in the region as a result of surgery and the fluids would be absorbed in course of time. The third defendant also told the plaintiff that if the fluids did not get absorbed and pain continued she would aspirate the fluids and remove the same. The third defendant in her notes has also noted that there was indurated mass measuring 3 x 4 cms was felt between the umblicus and suture line". On the advise of the third defendant ultra sound tests were carried on for the plaintiff and two such tests were prescribed by the third defendant, one a Vaginal ultra sound examination and another abdomen ultra sound test. When the plaintiff was undergoing ultra sound tests, number of Doctors were present and she heard some Doctors expressing that there was something unusual in the tests result. But, the third defendant insisted that the lump was as a result of fluid collections and the same would get absorbed in the system in 3 to 4 months. The third defendant concluded that results of the ultra sound report revealed only fluid collection between rectus and muscle layer. The third defendant did not even attempt to aspirate the fluid which she has suggested earlier. Without giving any further treatments, the plaintiff was discharged from the care of the defendants on 3-7-1991. The plaintiff settled the hills raised on her by the second defendant on 15-7-1991 which included a sum of Rs. 3,500/- as professional fees to the third defendant. The second defendant informed that it was the policy of the first and second defendants to raise bills in separately in the name of the hospital and also in the name of the surgeon who did the surgery. The defendants advised the plaintiff to stay for few days in a hotel situated adjacent to the hospital of the defendants. After staying for few days, the plaintiff left for Guwahati for rest and recuperation. When she went to Guwahati. she continued to have discomfort and pain and the size of the lump also did not recede. The plaintiff became extremely anxious and she was in continuous state of worry and suffering from mental depression. The plaintiff had to accompany her husband to Saudi Arabia and accordingly she went. Her life was normal before the operation, hut subsequent to the operation, she continued to suffer more pain in the abdomen. She consulted with Gynaecologists in Saudi Arabia who after examining her told that the lump in the abdomen was quite unusual and kept her under observation for few days. Some medicines were given, but there was no improvement. Gynaecologists at the Royal Commission Medical Centre, Yanbu-al-Sinaiyah in Saudi Arabia advised her to undergo X-Ray examination on 12-11-1991. The X-ray revealed that there was some foreign object in the plaintiff s abdomen region. Therefore, the plaintiff was advised to undergo another major surgery for removal of the foreign object. The plaintiff was admitted in Royal Commission Medical Centre and she was under the care of Dr. Swapan K. Dutta and Dr. Finn and they operated upon the plaintiff on 9-12-1991. During the operation, the Doctors found a foreign body, namely a big abdominal pack which was found strongly and firmly adhered to the loops of the small Intestine and the Doctors who did the surgery removed it carefully. The abdominal pack which was found in the abdominal region was taken out and the operation was completed and she was taken to her room. The foreign object which was found embedded into her abdominal region was found to be a thick cloth of the size 12" x 12" which is a surgical pack with 18" string attached to it. This surgical pack has been left in the abdomen during the surgery done by the third defendant in the hospital of the second defendant. To remove this, the plaintiff has to undergo a second surgery at Saudi Arabia after this was discovered through X-ray examination. The plaintiff has to pay a sum of $ 1,500/- for undergoing the second surgery and for removal of the surgical pack which has been left in her abdomen at the time of her first surgery done by the hospital of the second defendant by the third defendant. Only after removal of this foreign body, namely the surgical pack, the plaintiff was relieved from the pain and suffering which she had been continuously undergoing for more than six months i.e. after the surgery at the second defendant's hospital till the second surgery done at Saudi Arabia. The surgical pack that was removed from the abdomen was also shown to the husband of the plaintiff and the plaintiffs husband wrote to the second defendant on 27-11-1991 drawing the attention of the second defendant with regard to the negligent manner in which surgery was performed in their hospital. The defendants sent a reply on 13-12-1991 stating that the matter is under investigation. The plaintiff's husband sent the X-ray report and also the skiagram to the defendants 1 and 2. The defendants 1 and 2 were also informed by the plaintiffs husband that a foreign object has been left behind in the abdomen of the plaintiff at the time of surgery done in the hospital of the second defendant by the third defendant and that the same has been removed only after a major operation done by the Doctors at the Royal Commission Medical Centre, Saudi Arabia. Even though the defendants promised to send a detailed reply after fixing the responsibility, they have not sent any such reply. The plaintiff was put to much pain, sufferings, emotional distress and trauma for a period of six months. The surgery done by the third defendant in the hospital of the second defendant has not been properly done and the defendants are guilty of gross negligence in conducting the operation, There has been a gross and inescapable failure in the standard of care on the part of the defendants. The plaintiff was attending to all the needs of the family prior to the operation, but after the operation -she was not able to do the normal work and because of the pain and suffering she has to engage the services of a servant-maid to look after the work. She had to pay a sum of 9000 riyals equivalent to a sum of Rs. 75,000/- to the servant-maid. During the period of second surgery and the treatment thereafter at Saudi Arabi, her husband haS to be on her side for which he has to take leave for five weeks on loss of pay and on account of this they have to suffer loss of earnings to the tune of Rs. 2,75,000/-. The plaintiff was unable to enjoy the pleasures of life and she was not able to carry on her normal activities due to the negligence of the defendants in doing the surgery on her. The suffering of the plaintiff was only on account of the negligence on the part of the defendants but for which the plaintiff would have been leading a normal life and would have been an integral part of the family. The plaintiff has suffered mental and physical pain, loss and damages on account of the negligence of the defendants. Because of the negligence of the defendants, the plaintiff has suffered physical pain, trauma, mental distress and financial loss and hardship and therefore she is entitled to claim a sum of Rs. 10 lakhs as special damages, besides the general damages. In all the plaintiff is entitled to a sum of Rs. 25 lakhs as damages for the negligence of the defendants which has resulted in suffering, pain, agony, mental depression and financial loss. The plaintiff had to spent lot of money for coming to India, where the surgery took place and the hospital is situated. Therefore. the plaintiff has filed the suit claiming damages of Rs. 25 lakhs and she is also entitled to interest at 21% per annum from the date of the plaint till recovery of the said sum.
2. The defendants 1 and 2 filed a written statement contesting the claim of the plaintiff by contending as follows :--
The first defendant is a public limited company having its Registered Office at Madras and it is represented by the Managing Director, Mrs. Preetha Reddy. The second defendant hospital is run by the first defendant and as such there is no separate legal entity. The first defendant is represented by the Managing Director and impleadlng the Chairman by the plaintiff is not necessary. The suit is not maintainable as against them either in law or on facts. The defendants further submit that United India Insurance Company Limited is a necessary party to the proceedings because the first defendant has taken a policy covering all the legal liability arising out of any claim made against the first defendant. The defendants also have made a claim with United Insurance Company Limited enclosing a copy of the plaint. So, the United India Insurance Co. Ltd., has to be made a party for proper adjudication. The third defendant Dr. C. Swarnakumari is an independent consultant and she is not an employee of the first defendant. There is no relationship between the first and third defendants as master and servant. The third defendant is an independent consultant. In fact the third defendant pays service charges to the first defendant for availing the facilities viz., consultations suit, operation theatre and laboratories provided by the first defendant. The first defendant has no control over the third defendant. This defendant is not aware of the problems the plaintiff had prior to her admission in the hospital. It is not true to say that the fees and charges charged by these defendants are higher in comparison to other private hospitals. These defendants have been providing the best possible treatment and they are trying to maintain highest standard. They do not charge heavily as stated in the plaint. The medical check-up and the subsequent tests undergone by the plaintiff were all referred to only by the third defendant. These defendants understand that the tests have been carried out and results have been evaluated by the third defendant, who seems to have advised the plaintiff to undergo surgery for removal of uterus. The plaintiff has undergone surgery successfully and she was given post operation treatment also in the hospital on the advice given by the third defendant. It is not true to say that during ultrasound tests some of the Doctors have expressed about something being found unusual in the abdominal region of the plaintiff as suggested in the plaint. The plaintiff has not named the Doctor or Doctors who are said to have expressed such opinion. The third defendant is a competent surgeon with vast experience in the field of obstetrics and Gynaecology. The third defendant is an independent consultant and not an employee of these defendants and the patients admitted under the care of the third defendant are directed to pay the fee to the third defendant. This is the established practice followed by these defendants. The third defendant was not acting either under the control or directions of these defendants. These defendants are not aware of the opinion of the Gynaecologists who have examined the plaintiff after surgery in Saudi Arabia. The plaintiff has not disclosed the nature of the surgery which she claims to have undergone in Saudi Arabia on 9-12-1991. No medical records with reference to operation were sent to these defendants. These defendants deny that a big surgical pack was found in the abdominal region and removed by the surgeon at the hospital in Saudi Arabia. These defendants also deny that the second surgery done at Saudi Arabia was only for removal of the foreign body or surgical pack alleged to have been left in the abdominal region, when the plaintiff has undergone operation under these defendants. These defendants are not responsible for the surgery performed by the third defendant and they have only provided certain services. There was no negligence or lack of proper care on the part of these defendants when the plaintiff underwent the surgery in their hospital. There were some exchange of correspondence and phone con-versation between the plaintiff and the Chairman of the second defendant. It is not true to say that the Chairman was not even sympathetic to the sufferings of the plaintiff. These defendants do not admit that the plaintiff suffered traumatic pain after the operation done in the hospital of these defendants. These defendants also do not admit that the plaintiff suffered pain only because of the negligence in performing the surgery done in their hospital. These defendants also do not admit that the plaintiff has to incur financial loss as alleged in the plaint. The plaintiff is not entitled for damages claimed and these defendants are not liable for any damages suffered by the plaintiff. The damages claimed also are excessive. The suit is liable to be dismissed as against these defendants 1 and 2.
3. The third defendant filed a written statement raising the following contentions:--
The plaintiff herself has admitted that prior to her surgery in the hospital, the third defendant has advised her to undergo various tests and after proper evaluation, this defendant has advised removal of uterus of the plaintiff. The condition of the plaintiff when she came to this defendant was serious and she has been suffering from gynaecological problem from 1986. The surgery was imperative and therefore this defendant advised the plaintiff accordingly. A detailed discussion was held with the plaintiff before performing the surgery. The surgery was performed on 21-6-1991 with the consent of the plaintiff in the hospital of the first defendant. This defendant did abdominal hysterectomy and removed the uterus. The surgery was successful and the plaintiff was discharged on 3-7-1991. But, the plaintiff has been advised by this defendant to keep in contact with her for lower abdominal discomfort complained of by the plaintiff and she has been asked to come for review after six weeks. But the plaintiff did not turn up thereafter. Whenever the plaintiff complained. this defendant immediately examined and checked her. The lump or heaviness felt by the plaintiff in the abdominal region was due to induration following surgery. The plaintiff was ambulatory on the third day of surgery and started taking normal diet. This defendant examined the hardness in the abdomen of the plaintiff and did everything to eliminate any mistake that could have occurred at the time of surgery and verified whether the pad count and gauze count which was reported was correct. There was no possibility of any foreign body left in the abdomen at the lime of operation as alleged by the plaintiff. When the plaintiff complained of pain due to a lump in the abdominal region, this defendant has advised Tranvaginal Ultra sound test and Abdominal ultra sound test and they were also conducted. The tests did not reveal the presence of any foreign body. The ultrasound examination only revealed a small amount of fluid collection 2 to 3 CC near the rectus muscle under the skin. This defendant after such examination and investigation honestly concluded that the pain complained of by the plaintiff was only the normal pain after surgery which would decrease and vanish over a period of time normally given in such cases. It was also explained to the plaintiff and she was advised to come for further treatment in case the pain did subside. Even after discharge of the plaintiff, she has been examined by this defendant who has taken all interest. In spite of the care and caution taken by this defendant, she was not able to detect the real cause for the pain and this was more so because the plaintiff could not stay at Madras. After the plaintiff left Madras she did not complain of any pain and in fact the plaintiff told this defendant whenever she contacted her that she was alright except for a slight heaviness in the lower abdomen. The plaintiff actually stated that her pain, has considerably reduced. This defendant, advised her to have follow up treatment without any delay. The plaintiff cannot attributed any negligence towards this defendant. This defendant was not the only person who performed the operation on the plaintiff, but the surgery was performed with a team of people each having a distinct role to play and, any mishap could be attributed jointly and sever ally to all of them and this defendant cannot be singled out for bearing the responsibility. The staff who assisted this defendant during surgery are all employees of the first defendant. The nurses who assisted this defendant at the time of surgery are appointed by the first defendant. The operation theatre is managed by the first defendant. There was no negligence on the part of this defendant. This defendant has been assisted by an experienced team of staff. This defendant has repeatedly asked the theatre staff whether the pad counts were in order and whether all the swabs have been removed from the body and the staff assured her that every thing was normal. This defendant has exercised due standard of care which was necessary after the operation by making enquiries with the staff. The plaintiff ought to have come to this defendant if really she has felt a great deal of discomfort after the operation and in case the lump has not receded. In fact the plaintiff has been directed to come forward for review after six weeks, but she has gone abroad and did not come for review, The expenses allegedly incurred by her are not admitted. This defendant has done the job with perfection and there was no negligence on the part of this defendant. The damages claimed are excessive and the plaintiff is trying to make out a fortune from out of a tragedy. The plaintiff is not entitled to the claim made and this defendant is not liable. The suit is liable to be dismissed as against this defendant.
4. On the above pleadings, the following issues were framed for trial:--
(1) Whether the defendants were negligent in the treatment accorded to the plaintiff?
(2) Whether the plaintiff is entitled to the damages in a sum of Rs. 25,00,000/- as claimed by the plaintiff ?
(3) Whether the plaintiff is entitled for interest at the rate of 21% per annum from the date of filing the suit till the date of realisation ?
(4) To what relief is the plaintiff entitled ?
5. Parties joined in issues and adduced evidence in support of their rival claims. Plaintiff examined herself as PW 1, her husband as PW2, besides the Doctor who treated her subsequently at Saudi Arabia as PW 3. Exs. A 1 to A29 documents were marked on the side of the plaintiff. Third defendant examined herself as DW 1 and Exs. B1 to B3 were marked on the side of the defendants.
6. Issue No. 1 :--
The plaintiff has filed the suit claiming damages of Rs. 25 lakhs because of the pain, agony, sufferings caused to her in the defendants performing total abdominal hysterectomy operalion on her on 21-6-1991 in Apollo Hospital run by the first defendant and the operation was actually performed by the third defendant, a specialist in gynaecology, alleging that the operation has been done in. a highly negligent manner without bestowing proper care and caution which is expected from a qualified Doctor as a result of which a foreign object was left in the abdomen and the wound was closed after the operation with the object embedded in the abdomen. The plaintiff is a permanent resident of United States of America and was residing in Saudi Arabia in the year 1991 where her husband was gainfully employed as an Engineer. She was aged 45 at that time and she was having some gynaecological problems and she got herself examined by the Doctors at Saudi Arabia and they diagnosed that she was having Cystic Overies and therefore she was advised to undergo abdominal hysterectomy when means removal of uterus. The plaintiff hails from Assam in India and she has got relatives and friends in India and when she was advised to undergo a major surgery to relieve her problems, she decided to have the surgery in India where she could naturally count on help from friends and relations to lookafter her during the period of recuperation. For the object of having surgery in India, she has come to Guwahati in the month of June, 1991 and when she made inquiries with regard to medical facilities available in India, it was suggested to her that best medical care and attention she could have a t Appollo Hospitals in Madras is a result she came to Madras by the middle of June, 1991. It is also not in dispute that she brought a letter of introduction from one Dr. Zaman and got herself introduced to Dr. Prathap C. Reddy, the Chairman of Apollo Hospitals, the first defendant. Even before she met Dr. Prathap C. Reddy, she was referred to his Assistant one Dr. Uma and it was Dr. Uma who referred the plaintiff to the third defendant Dr. Swarnakumari, a Gynaecologist and a surgeon having long experience in examination (sic).
7. Accordingly the plaintiff met the third defendant and the plaintiff was referred to Master Health Check-up to be conducted in the first defendant hospital itself and she underwent all tests. Ex. A-1 is the Medical Summary prepared by the first defendant hospital showing the results of the Master Health check-up and it would show that the plaintiff was complaining of pain in right abdomen on and off for a period of about one year in the past and sometime the pain was gripping type. A lump in the left breast which however was not painful was also found. Otherwise, the plaintiff was having normal health and she was not a diabetic and was not suffering from hypertension. After evaluation of Master Health Check-up Report Ex. A1, the third defendant advised the plaintiff to undergo an operation for total abdominal hysterectomy. This was suggested by the third defendant as a permanent cure and relief for the problems faced by the plaintiff. Since the plaintiff has been previously also advised by the Doctors that this would be the effective treatment, she has consented for the operation and she was admitted in the first defendant Apollo Hospital on 19-6-1991. The records of the hospital produced by the plaintiff would all show that she was admitted as such and this is also not disputed by the defendants.
8. It was on 21-6-1991 in the afternoon. the plaintiff was taken to operation theatre in the hospital of this first defendant and it was the third defendant who performed surgical operation on the plaintiff. The plaintiff was put under general anaesthesia and therefore after she entered the operation theatre she was not conscious nor she was aware as to how and in what manner the actual operation or surgery was performed by the third defendant assisted by her own assistants and staff of the first defendant hospital. The operation took about 1 1/2 hours and by about 4.00 p.m. she was removed to post operative ward where she remained for a period of about two weeks till she was discharged on 3-7-1991. According to the third defendant the operation was successfully done and uterus was fully removed. Therefore, apart from the normal discomfort or suffering which one would have to undergo soon after such a major surgery, the third defendant has promised that she would be completely relieved of her gynaecological problems because she has completely removed the uterus.
9. But, Immediately after the operation was over and while she was recuperating in the post operative ward of the first defendant, the plaintiff felt persistent pain in the abdominal area and she also felt that there was a lump or heaviness in the stomach which she has not experienced prior to operation. The plaintiff is an educated lady and she could easily differentiate the pain which she was earlier accustomed to endure the constant pain after the operation. Within two days when the third defendant came for examining her in the ward, the plaintiff complained of persistent pain and lot of heaviness in her abdominal region and she was assured by the third defendant once again who felt the same, but however told her that this must be due to collection of fluids and the fluids would be absorbed in course of time naturally and the plaintiff would have complete relief, it is also stated by the plaintiff which is not denied by the third defendant that the latter also told her that if the pain still persisted, the fluids can be removed by way of aspiration. The plaintiff was advised to remain in the hospital for few more days under the care and control of the third defendant. The plaintiff was still complaining about persisting pain and therefore the third defendant referred her for ultra sound examination. Ex. A-4 is the Discharge Summary given to the plaintiff at the time of her discharge and this also would, corroborate and confirm the complaint of the plaintiff during her post operative period.
10. Ex. A-4 is the Discharge Summary which gives the detailed description of the condition is in proceedings prior to the operation and after the operation. A reading of Ex. A-4 would show that a detailed investigation has been done at the hospital and master health check-up has been done and operation notes also would disclose that the plaintiff under anaesthesia underwent an operation for the removal of uterus. It states that "total abdominal hysterectomy with bilateral salpingo opherectomy has been done in the usual way. Vault closed and peritonised, Abdomen was closed in layers skin sutured by vicryl." it is also mentioned therein that the fifth post operative day indurated a mass measuring 3 x 4 cm was felt between umblicus and suture line. Ultra sound test was done on 24-6-1991 which reported fluid collection between the rectus and muscle layer, Haematoma. According to the Report, there was reduction of mass after the patient was observed for five days and the plaintiffs condition at the time of discharge is reported to be fair and the wound has healed in a healthy manner. The report concludes with an advice which includes a Review with the third defendant after six weeks.
11. In the written statement filed by the third defendant and also during her evidence, the third defendant has unequivocally staled that she came to the conclusion that the pain and heaviness complained of by the plaintiff after the operation was only due to fluid collection in the abdominal region and she was of the opinion that it would subside in course of time and the fluids would get absorbed in the system in course of time. The third defendant has done only ultra vires sound examination, both vaginal and abdominal, but that has not shown any abnormality in the body of the plaintiff and the third defendant seems to have not taken seriously the complaint of pain and heaviness felt by the plaintiff after the operation. The third defendant herself admits that it was she who advised the plaintiff to remained for few more days and she remained as an in-patient till 3-7-1991 and not discharged on 3-7-1991. In fact even after the discharge the plaintiff was staying in the hotel attached to the first defendant hospital and she has also seen the Doctor thereafter and she only left Madras by about 13-7-1991 after settling the bill due to the hospital. But. till she left, she was complaining about pain and suffering and she has been repeatedly assured by the third defendant that there was nothing wrong in the operation or nothing to be worried about and the pain and suffering was only due to some fluid collection and the plaintiff would get relief in course of time and therefore she was advised to leave the hospital and Madras to her place in Assam.
12. That the pain and suffering felt by the plaintiff after the operation was not due to any collection of fluids and it was not the previous pain which she was having before the operation and this has become known due to the subsequent medical examination and the surgery she underwent in Saudi Arabia later. But. the fact remains that the third defendant was not able to find out any cause or reason for the pain and heaviness suffered by the plaintiff and she has been constantly complaining to the third defendant right from the day after the operation. All that has been done by the third defendant is that she asked her to undergo an ultra sound examination and this has also not confirmed her opinion that there was any abnormality in the abdominal region where incision has been made and uterus has been removed.
13. It is now stated by the third defendant that even at that time she made sure that no foreign body has been left behind in the abdominal region before closing the wound at the time of operation and this she claims to have done by checking the tag swab counts and counts of instruments used at the time of operation. The third defendant claims to have satisfied herself that the complaint of heaviness and pain made by the plaintiff was not due to any foreign object being left behind, at the site of operation and this she has made sure by counter checking the pad count and gauze counts. It is no where stated by the third defendant that she even suspected that some foreign object could have been left behind in the site of operation and this could have been the cause for the post operative complaint made by the plaintiff. Therefore, I think it is not probable that the third defendant has made such a counter check and that too after the operation and in view of the complaint made by the plaintiff. Obviously because of the subsequent development which revealed a foreign substance in the abdominal, she is making this claim and anyhow there is nothing on record to show that she made this counter check after hearing the complaint of the plaintiff during the post operative period. No records have been produced and even the ultra sound report did not reveal that it was done with a view to find out as to whether any foreign object has been left at the site of operation during the period of operation. Therefore, it is an afterthought invented by the third defendant for the purpose of explaining her not bestowing enough care and caution to the complaint of the plaintiff and the plaintiff has been treated in a casual manner.
14. The plaintiff after remaining in Guwahati for some more time left for Saudi Arabia to join her husband who was employed there. Throughout her stay in India and even after going to Saudi Arabia, she was having constant pain and the heaviness in the stomach was also there and therefore the plaintiff was suffering from much discomfort even few months after her operation. Perhaps, as advised by the third defendant, the plaintiff was hoping against hope that the pain and suffering would subside and might be it was only due to collection of fluids and therefore suffered in silence for few more months in Saudi Arabia where she was staying subsequently. P.W. 1, the plaintiff after waiting for few months naturally sought the advise of a Doctor in Saudi Arabia and she was referred to Royal Commission Medical Centre. Yanbu-al-Sinaiyah in Saudi Arabia and she was examined by the gynaecologists at the said hospital. After examination, the Doctors in the said hospital also felt that there was a lump in the abdominal region of the plaintiff which appear to be unusual and naturally the plaintiff would have told her about the operation she underwent in the month of June in Madras and having persistent pain thereafter. The Gynaecologists at the Royal Commission Medical Centre immediately referred the plaintiff to X-ray examination.
15. Ex. A-18 is the Report given by P.W. 3 Dr. Swapan K. Dutta, who is a consultant and general surgeon working in Royal Commission Medical Centre. The Medical Report reads as follows :--
"Mrs. Arpana Dutta was admitted jointly under myself and Dr. Finn for removal of foreign body from the abdomen.
In the past, she had hysterectomy back in India, which was performed through a low Pfannenstil incision. Following the operation, while she was recovering fairly satisfactorily, there was problem with wound sepsis. She was reassured about this and finally discharged when the wound healing was complete.
However, while she has recovered from the operation, she somehow did not feel quite right, as she kept complaining of pain in that area, and at the time, it was felt as if she had a mass in relation to the scar.
She was seeing our gynaecological colleague here, who discovered on x-ray that, she had a retained abdominal pack in the wound, and eventually, she was referred to vis for its removal."
16. The Gynaecologists at the Royal Commission Medical Centre in Saudi Arabia took X-ray for the plaintiff and Ex. A-5 series are skiagrams which would show that a foreign object was found embedded in the abdominal region where she has undergone a surgery. So, when the defendants 1 and 3 have failed to find out what was the cause for the complaint of subsisting pain by the plaintiff, the Gynaecologists at Saudi Arabia Hospital were immediately able to find out by simply taking X-ray of the region which revealed that a foreign object has been left behind at the site of the operation and the wound has been closed without removal of the said object. The Doctors were able to find out also from Ex. A-5 X-ray obviously the foreign object left inside must be a surgical pad. Therefore, once they have found that the cause for the plaintiffs problem or the detection of a foreign object at the site of the operation, she was immediately advised to undergo second surgery in the abdominal region for the purpose of removing the foreign object. It was this second operation or surgery which was done by P.W. 3 Dr. Swapan K. Dutta who was a Consultant surgeon attached to Royal Commission Medical Centre, Yanbu-al-Sinaiyah in Saudi Arabia. Again we have to refer to Report of P.W. 3 who has done the second surgery and reference can be usefully made to Ex. A-18 Medical Report prepared by P.W. 3, a Doctor in Saudi Arabia, it is stated in the last portion of the report as follows :--
"She was, therefore, admitted for this purpose on 8 December 1991, and the operation was performed on the following day.
On exploration through the old scar, a cavity was found containing greenish yellowish pus without any special sme!i. While a sample was taken for culture in the same cavity, a big abdominal pack was found in situ. The pack was very strongly and firmly adhered to the loops of the small intestine, and this was very gently freed from the intestine and was removed. The cavity was then closed from the abdominal cavity proper, and a suction drain was put into the cavity through a separate incision. Abdominal wall was then closed in layers with Dermalon in the skin. Her postoperative period has been excellent, and she was allowed home on 16 December, 1991, having ensured that the wound has healed well and there was no evidence of any infection in the wound."
This Report also has been spoken to by P.W. 3 Dr. Swapan K. Dutta, during her evidence. She has spoken to about the removal of abdominal pack from inside the abdomen of the plaintiff which is also shown in detail in Ex. A-2 photograph.
17. P.W. 2 is the husband of P.W. 1 and he has sworn to the fact that after removal of foreign object, namely the abdominal pack, this was shown to him by P.W. 3 and he was also allowed to take a photo of the same and Ex. A-2 is the photograph and Ex. A-3 is the negative. No doubt the object was discovered by the hospital authorities in Saudi Arabia. The abdominal pack that was found inside the abdominal region of the plaintiff is correctly shown in Ex. A-2 photograph and this has been spoken to by P.W. 3 also. Abdominal pad in used for mopping up blood at the time of operation and number of pads would have been used and it is for the Doctor to remove all the pads before ever the wound is closed and ensure that no pack was left inside. She would have to do a count check with the staff attending on the patient and assisting her in the operation. The third defendant as D.W. 1 also confirmed that it is the least which is expected from a surgeon who does the operation. The pad is made up of cloth which measures 12 x 12 cms, A string is attached to the same measuring 18 cms. A string is attached because when the pad is used for mopping up the blood at the site of operation, the string will be kept, outside the body so that it can be removed after the operation was over and before closing the wound, But, unfortunately this foreign object has been allowed to remain in (he site of the operation and naturally the pack would have become bloodstained and that is the reason why a long string is attached which is to be left hanging outside the body so that it can be easily identified and removed. But, in the case of the plaintiff, the third defendant has not bestowed any care and attention and this abdominal pack was allowed to be inside at the site of the operation and wound has been closed without removal of the same which has been the cause for all the pain and suffering which the plaintiff unfortunately underwent after the operation. I am not in a position to understand as to why the elementary precaution of taking X-ray to find out whether any foreign object has been left behind, was not even taken by (he third defendant. It is elicited from P.W. 3 a consultant surgeon with good qualification that if any foreign object like abdominal pack has been left inside and if the patient was referred to ultra sound examination, it may not reveal the presence of foreign object because it would be submerged in the fluids and therefore will not be visible under ultra sound examination. On the other hand P.W. 3 has stated that X-ray would reveal the presence of any foreign body inside the abdominal region. But unfortunately this has not been done at the hospital of the first defendant and this was never thought of by the third defendant who performed surgery at the first defendant hospital.
18. P.W. 1 has referred to and this has been confirmed by the evidence of the third defendant that there was a discussion among the Doctors who were shown the ultra sound scan of P.W. 1. It is the case of the plaintiff that some Doctors have expressed their opinion on seeing the test results that there was something abnormal about the post operative condition of P.W. 1. But, the third defendant did not care on that opinion and insisted even thereafter that heaviness and pain felt by P.W. 1 after the operation was only due to collection of fluids. The third defendant herself has previously stated that if the pain still persisted it was due to collection of fluid and she would extract the fluid by aspiration. But, this was also not done and the third defendant must have been confirmed that there was least presence of fluids as disclosed from ultra sound examination. Therefore, the third defendant must have probed into the matter with regard to persistent pain complained by the plaintiff and the plaintiff must have known better because the plaintiff could differentiated the pain which she was not frequently having and which she was feeling continuously after the operation. The third defendant has been negligent even in taking sufficient care and caution in finding out the cause for the pain and suffering complained by the plaintiff during the post operative period. It now suits the third defendant to state that after P.W. 1 has complained about persistent pain, she made sure by checking the counts of pads and instruments used in the operation by referring the matter to the staff, who have assisted her during the time of operation. If this was actually done as claimed by the third defendant, she must have carried a suspicion that some foreign object sought have been left in the abdomen due to which the patient must have been suffering from persistent pain. The third defendant has never admitted before the Doctors to whom she discussed that the pain could be due some foreign object left during the period of operation and therefore this claim is made now before the Court as an after thought.
19. if really such a check and count of operation pads and Instruments have been subsequently conducted by D.W. 1 with reference to staff who have assisted her in the operation, this could have been done only with reference to operation notes or some records which she ought to have maintained at the time of operation. But, strangely the third defendant has not produced any such operation notes or notes maintained by the staff with regard to counts of pads and instruments used at the time of operation. This attitude on the part of the third defendant would also show that even after operation and in spite of the complaint made by P.W. 1 she has not bestowed any care and caution in finding out the real cause and if only she had made sincere efforts, she could have easily found the blunder or mistake she has committed at the time of operation and would have made the correctional operation.
20. The fact that there was a foreign object namely abdominal pack, left behind in the stomach of the abdomen and the wound was closed without removing the same is proved by the evidence of P.W. 1 which is also corroborated by P.W. 3 Dr. Swapan K. Dutta who has done the subsequent second surgery in the hospital at Saudi Arabia. Dr. Swapan K. Dutta has been examined as a witness and she has spoken to Ex. A-2 X-ray and Ex. A-5 skiagram which all disclose that a foreign object has been left behind in the abdomen and which must be the cause for the complaint of P.W. 1. Therefore, as a surgeon P.W. 3 did the second operation during the course of which to her shock and surprise, she found an abdominal pack which has been left inside the abdomen during the time of previous operation and removed the same deftly which in the meantime got interwoven with small Intestine and loops. Fortunately for P.W. 1, the foreign object has not caused any further complication except pain and suffering and probably she was not able do her normal work during the period intervening the first and second operation. Therefore, the evidence of P.W. 3 and the connected records Exs. A-4 and other materials have proved beyond doubt that during the first operation underwent by the plaintiff in the Apollo Hospitals, an abdominal pack has been left and this has caused suffering, pain and discomfort to the plaintiff. Naturally the plaintiff has suffered lot of pain and suffering Instead of comfort, after removal of uterus for which she has chosen the first defendant hospital after she was informed by her friends and relatives that it is the best hospital available in India. The plaintiff naturally got disappointed and this she has shared with her husband P.W. 2 and when P.W. 2 was informed about the presence of foreign object after X-ray, he has immediately written to the Chairman of the first defendant hospital for which he did not receive any satisfactory reply.
21. The correspondence between P.W. 2, the husband of the plaintiff and the Chairman of the first defendant hospital had been produced and marked as Exs. A-11 to A-17 and these documents would also show that while the hospital did not deny the mistake which was discovered by P.Ws. 1 and 2 with the help of P.W. 3 few months after the operation, his replies were only evasive and he has not conducted any meaningful investigation. Perhaps the Chairman of the first defendant hospital was not willing to admit that such a blunder or mistake could have been committed during the operation done in their hospital and there seems to be no attempt on the hospital authorities to Indemnify for the sufferings she has undergone. The third defendant also has written a letter Ex. A-15 wherein also she does not deny that she could have left a foreign object, namely abdominal pack inside the abdomen during the time of operation and she would try to explain that she has conducted thousands of operation wherein such a thing has not happened. Nobody denies the qualification or the experience of the third defendant as a Gynaecologist. But unfortunately P.W. 1 has been the victim when she had the operation in the hands of the third defendant and this was only due to negligence and lack of care and caution on the part of the third defendant and the third defendant should have honestly owned the mistake and the first defendant hospital also should have taken efforts or attempts to indemnify the plaintiff. But, none of these courses have been suggested to the first defendant and the third defendant has not taken any steps.
22. It is sought to be suggested to P.W. 3 the Doctor who has done the second subsequent operation that this foreign object could have been as well left in the abdomen of the plaintiff at the time when the plaintiff first underwent a Caesarean operation, when she gave birth to her child. It is seen from the records, namely discharge summary of the plaintiff that in 1979 she underwent a Caesarean operation under which the child was taken out of her womb and there was a scar left in her abdomen evidencing the operation. But, it is Incredible to think that in 1979 the abdominal pack would have been left and this started giving pain after the operation at first defendant's hospital and the foreign object was ultimately discovered during the correctional operation done in Saudi Arabia. This is a far-fetched suggestion made by the third defendant. If really a foreign object has been left in the abdomen in the year 1979, this could have been easily detected by the third defendant herself when she again opened the abdomen and did the operation for removal of uterus. It is not probable that a foreign object like abdominal pad was left in the abdomen from 1979. This could have been noticed by the third defendant herself when she did the operation in the first defendant's hospital on 21-6-1991.
23. The foreign object found inside the abdomen, namely the abdominal pack, has been removed physically which has been spoken to by P.W. 3 who did the second correctional operation. She has also spoken to the fact that after the foreign object was taken out, it was shown to the husband of P.W. 1, namely P.W. 2 and he was allowed to take a photograph of the same, which is shown in Ex. A-2. The oral evidence of P.W. 3 has been substantiated by her report, Ex. A-5 skiograms and other records. So, the fact that abdominal pack was left behind in the abdominal region of the plaintiff due to her operation in Apollo Hospital has been proved by the evidence of P.Ws. 1 to 3 and this has been also corroborated by records. P.W. 3 as a Doctor who has done the second operation has absolutely no reason to swear falsely. In fact she being a qualified Surgeon admitted that leaving of a foreign object like abdominal pack during the course of operation and closing the wound is an act of negligence. The evidence adduced by the plaintiff has conclusively established that an abdominal pack was left behind in the abdominal region at the time of operation done by the third defendant in the hospital of the first defendant and this was only an act of negligence and due to want of sufficient care and caution in conducting the operation which is expected of a surgeon like the third defendant. So, there can be no escape for the first and third defendants and they must be made answerable to the sufferings and pain undergone by the plaintiff due to the carelessness and negligence of the third defendant, while doing the operation in the hospital of the first defendant. The Doctrine "Res Ipsa Loquitur" squarely applies to the facts of the present case. Therefore, the defendants 1 to 3 must be held liable for the damages suffered by the plaintiff which was only due to the negligence on the part of the third defendant and the operation was done at the hospital of the first defendant.
24. The plaintiff entered the hospital of the first defendant for the purpose of having the operation and it was the first defendant who offered services for which the plaintiff has paid necessary fees and charges. The plaintiff was referred to Appollo Hospitals run by the first defendant and it was the first defendant who arranged for the operation. It was the first defendant who admitted the plaintiff in its hospital and it was the first defendant who has collected fees for the medical services rendered to the plaintiff and it was the first defendant who has offered to do the operation for the removal of uterus. Now it is sought to be made out by the first defendant that all that he has assured is care and treatment in the hands of skilled and qualified Doctors and if those Doctors were guilty of any negligence or carelessness, the concerned Doctors must be alone held responsible and not the first defendant hospital. It is ingeneously suggested that there is no master and servant relationship between the defendants 1 and 3 and the fee for doing the operation charged by the third defendant is separately collected from the patients and there is no master and servant relationship between the defendants 1 and 3.
25. We are not very much concerned with exact type of relationship governing the employment of the third defendant in the hospital run by the first defendant. So far as the plaintiff is concerned she is no where concerned with the terms of the contract alleged to have been entered between the defendants 1 and 3. The plaintiff has bargained for her operation done in the first defendant hospital and for the successful operation in the first defendant hospital. The third defendant's services has been utilised by the plaintiff only at the instance of the first defendant. She came and got herself admitted in the hospital of the first defendant and she was attracted to this hospital by the wide reputation the hospital is enjoying which she came to know from the far away place where she was residing. Therefore, her contact was with the hospital run by the first defendant and it was only at the instance of the first defendant, the third defendant did the surgery, to which the plaintiff has consented. No doubt when a patient has consented for undergoing an operation, it does not envisage 100% success or full remedy. All that is expected of from a skilled surgeon is possible diagnosis and correctional remedial measures which he is supposed to do with sufficient care and caution and in case of carelessness and negligence, the patient will be entitled to claim damages in a case of this nature. This is a case where the first defendant has referred the plaintiff for the treatment at the hands of the third defendant, the latter correctly identified the illness of the plaintiff and properly suggested the remedial operation, namely removal of uterus. So, the diagnosis was correct and the operation conducted by the third defendant was necessary under the circumstances and now the hospital and the Doctor are being sought, to be held liable only because of the negligence with which operation was done which is proved by the evidence of P.Ws. 1 to 3. Since the Doctor was employed by the first defendant, notwithstanding the terms of employment between the defendants 1 and 3, so far as the plaintiff is concerned she can hold the first defendant liable for all the damages suffered. The first defendant is running the Apollo Hospitals and it was he who is offering medical services. The terms under which the first defendant employs the Doctors and Surgeons is between them but because of this it cannot be stated that the first defendant cannot be held liable so far as third party patients are concerned. The patients like P.W. 1 go and get themselves admitted in the first defendant hospital relying upon the hospital to provide them the medical service for which they pay necessary fee. It is expected from the first defendant who run the hospital, to provide such a medical service and in case where there is deficiency of service or in cases like this, where the operation has been done negligently without bestowing normal care and caution, the first defendant also must be held liable and the first defendant cannot be allowed to escape from the liability by stating that there is no master and servant relationship between the first defendant hospital and the third defendant surgeon, who did the operation.
26. Moreover, this Court itself has held that the first defendant hospital is liable in case of established negligence and it is no more a defence to say that the third defendant is not a servant employed by the first defendant, etc. The same plea has been taken up by the first defendant in another case of negligence and it is reported in (1996) 1 Mad LW 58 (SN); V. Chandrasekhar v. Appollo Hospitals Enterprises Limited, represented by its Chariman, Dr. Prathap C. Reddy.
Learned counsel appearing for the first defendant relied upon a ruling made in Hillyer v. St. Bartholomew's Hospital Governors (1909 (2) KB 820. The same ruling was also relied upon in the case referred to above and this was also negatived by Pratap Singh, J. who has observed as follows :--