Proper record maintenance helps quantify compensation

A surgeon is expected to keep a count of the number of surgical sponges used by him and ensure all of these are removed

Anumandalu Thallapali and wife Shanti were directors of Shanti Clearing Agency. On the midnight of April 26, 2009, Shanti developed acute abdominal pain, for which she was hospitalised on the advice of her family doctor. Since the pain did not subside, she was shifted to another hospital, where she was diagnosed to be suffering from bowel obstruction. She was then shifted to Surana Sethia Hospital in the Chembur area of Mumbai. Here, Dilip Rajpal performed emergency surgery on her. He informed Thallapali the operation was successful. Instead, Shanti's condition deteriorated due to pain and fever. The doctor and staff gave evasive replies. So, Thallapali decided to shift her to another hospital. Before granting a discharge, Surana Hospital collected Rs 2.90 lakh for hospitalisation.

Thallapali shifted her to Apollo Hospital in Chennai, where it was discovered a surgical mop had been left inside the abdomen during the earlier surgery, resulting in the accumulation of faecal matter, leading to septicemia. The surgery for removal of the mop, followed by three further corrective surgeries over a span of six months, the cost of treatment and incidental expenses came to about Rs 26 lakh.

Thallapali confronted Surana Hospital with the evidence of medical negligence but they did not pay any heed. Ultimately, Shanti and Thallapali filed a complaint before the Maharashtra State Commission, claiming reimbursement of the additional medical expenses incurred, compensation for trauma, and for having to neglect their daughter during this period.

Surana denied its liability, claiming it was a well-equipped hospital with qualified staff, run by a charitable trust and not for profit making. It alleged Shanti's discharge was taken against medical advice, though a second surgery was suggested. Rajpal also defended himself, claiming he was a well-qualified and experienced surgeon, and an honorary one, in public hospitals. He claimed he had taken due care and performed the surgery after taking valid consent. He attributed the pain to Shanti's ailment, and claimed be was being held liable for inherent risks associated with surgery.

The Commission observed there was no dispute about Shanti suffering post-surgical pain. It noted Apollo Hospital's operation notes clearly stated a large sponge (surgical pack) and proximal jejunal loop were found in the abdomen. Faeces was also found in the peritoneal cavity. Surprisingly, this had gone undetected during the sonography at Surana. The Commission observed Apollo Hospital's finding substantiated the allegation of medical negligence against Surana and Rajpal.

Additionally, Dr Undre's expert evidence stated a surgeon was expected to keep a tally count of the number of surgical sponges used and ensure all these are removed. If left behind, it can result in infection. Leaving a surgical sponge in the body squarely shows lack of medical attention and the duty of care expected of any surgeon.

In its order dated January 16, 2014, delivered by judicial member Usha Thakare for the bench, along with Narendra Kawde, the Commission held Surana Sethia Hospital and Dilip Rajpal guilty of medical negligence. The Commission observed for meeting the medical expenses, Shanti had to sell her house in Chennai with the furniture, her gold jewellery and Thallapali had to sell his car, mortgage his office and also borrow money from friends and relatives, which evidence was supported by bank records and accounting statements.

Therefore, the Commission held Shanti was entitled to Rs 28 lakh for medical expenses, Rs 5 lakh as compensation for mental agony, Rs 1 lakh for loss of income, and another Rs 1 lakh as litigation and travelling expenses. Accordingly, the Commission directed Surana Sethia Hospital and Dilip Rajpal jointly and severally liable to pay Shanti a total amount of Rs 35 lakh.

Thus, proper maintenance of accounts helps a court determine the quantum of compensation which ought to be awarded.

The writer is a consumer activist