Surgical cloth left inside abdomen during appendix operation, man wins Rs 8.75 lakh

The Gujarat consumer commission has held Ahmedabad’s Kesar Sal Hospital guilty of medical negligence after a piece of cloth (surgical mop) was found left inside a man’s abdomen following an appendix operation in 2008, and ordered the hospital to pay him Rs 8.75 lakh in compensation.

President I D Patel and Dr J G Mecwan (member) were hearing an appeal filed by one Pravinbhai Naranbhai Sonara, who was operated on by a doctor at Kesar Sal Hospital in December 2008 following persistent appendicitis pain.

“From the evidence given, it is proved that a mop (cloth piece) was left inside the abdomen during the first surgery by Dr Mitul Choksi of Kesar Sal Hospital Surgery Department, which has created all the consequent surgical complications”, the June 16 order read.

The commission found that the report of the expert committee constituted by B J Medical College was categorical and left “no room for ambiguity”.

An 18-year nightmare

The man claimed that he was admitted to Kesar Sal Hospital on December 20, 2008, with appendicitis pain, and the operation was performed on him the very next day. The man was discharged on December 24, 2008, but the pain persisted.

It was further added that he was readmitted on January 6, 2009, for a second procedure to clean pus from the operated site, and discharged on January 13, 2009. Pus continued oozing from the site, and he was admitted again on February, 13 2009, when a tube was inserted into his abdomen to trace the source of the discharge.

He was discharged on February 23, 2009 after the pus discharge had reduced. About ten days later, he developed severe pain again and visited the hospital on 14, April 2009, where a sonography was done, and he was told it was normal pain.

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The man claimed that his marriage was scheduled for May 21, 2009, and the pain continued to distress him. On June 11, 2009, a villager allegedly advised him to consult one Dr Vinay Bharwad, who suggested a sonography and, on seeing the report, told the man that an operation would be required.

Dr Bharwad allegedly operated on the man on June 12, 2009. During the surgery, he called the man’s father into the operating theatre and allegedly showed him a piece of cloth stuck in the large intestine, telling him it was the root cause of the pain and suffering.

Aggrieved by this, the man filed an appeal in the district consumer commission, which ultimately rejected his claim on April 9, 2012. Aggrieved by this, the man filed this appeal with the state consumer commission.

‘A foreign object inside man’s stomach’

The commission rejected the hospital’s argument that the man was not a consumer since no fee was charged, noting the hospital’s own trust deed limited free treatment to poor and deserving persons.

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It noted that “where free treatment is extended only to a particular class of persons and the institution otherwise renders medical services for consideration, the beneficiaries of such services would continue to fall within the definition of consumer”.

It also rejected the hospital’s plea that it was denied a chance to cross-examine Dr Bharwad, citing the Supreme Court ruling in which it was held that consumer cases are summary in nature and not bound by strict Evidence Act rules.

The commission held that the hospital’s own case papers recorded entries such as “stool not passed” on multiple dates and repeated use of laxatives like Isabgul and Cremaffin Syrup, contradicting its now defence that the man was passing stool normally and therefore could not have had a foreign object inside him.

Invoking the doctrine of res ipsa loquitur (the thing speaks for itself), the commission held that a surgical mop (piece of cloth) remaining inside a patient’s body is not an occurrence that takes place if reasonable care is exercised, and that the burden shifted to the hospital to explain the retained object, a burden it failed to discharge.

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The commission held the hospital vicariously liable (where one party is held financially and legally responsible for the wrongful actions of another) for the negligent acts of its treating doctor and medical staff, noting the acquittal of Dr Mitul Choksi in a related criminal case did not bind the commission’s independent assessment of medical negligence.

Commission’s directions

The commission directed the hospital to pay Rs 8 lakhs towards medical negligence, prolonged suffering and consequential loss. An additional Rs 50,000 was directed towards mental agony, emotional suffering, physical hardship and loss of amenities of life.

The hospital was further directed to pay Rs 25,000 towards litigation costs. The entire amount must be paid within 60 days of the order, failing which it will carry 9 per cent annual interest till realisation.

Arguments

The complainant’s counsel, advocate R P Patel, argued that an expert panel from B J Medical College, a government institute, had categorically opined that a mop or cloth piece was found in the man’s intestine, establishing gross medical negligence during his appendicitis operation.

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On the contrary, the hospital’s counsel, advocate M J Parikh, argued that no mop was ever used during the surgery and that no forensic examination was carried out on the cloth piece to establish that it had actually come from the complainant’s body.

For consumer-related grievances, individuals may contact the consumer helpline in their respective states (Gujarat Consumer Commission Helpline: 1800-233-0222) or call the National Consumer Helpline at 1915 for assistance.

Written by Avinash Verma (Avinash is an intern with The Indian Express)