IN THE COURT OF THE III ADDITIONAL CHIEF JUDGE:
CITY CIVIL COURT: AT HYDERABAD
Dated this the 24th day of August, 2012.
PRESENT: SRI T.GANGI REDDY, B.A.,B.L.,
III ADDL.CHIEF JUDGE
O.S.No. 189 of 2005
Between:-
1. Maj. P.Gopala Krishna (Retd.)
2. Smt. A.V.Janaki Amma,
3. Miss A.V. Gopika Nair.
...PLAINTIFFS
And
1. The Union of India, represented by its Secretary, Ministry of Defence, New Delhi,
2. Dr.Col.M.N.Math,
3. Brig.S.V.Vatve
...DEFENDANTS
This suit coming on for final disposal before me in the presence of SriK.Chaitanya, Advocate for the plaintiffs and of
Sri P.Ravinder Reddy, Advocate for the 1st defendant and the defendants 2 and 3 having called absent and set exparte and the matter having stood over for consideration till this day, this Court delivered the following:- :J U D G M E N T :
1.This suit is filed by the plaintiffs against the defendants to award damages and compensation of Rs.17,00,000/- to the plaintiffs for medical negligence against the defendants.
2.The brief averments of the plaint are as follows:-
The 1st plaintiff is a retired Defence Personnel having served as a Major in Indian Army. The 2nd plaintiff is the mother-in- law and the 3rd plaintiff is the daughter of the 1st plaintiff and another daughter by name Smt.A.V.Sandhya is married at present 2
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and is residing abroad as such could not be joined as plaintiff. It is further stated that while the plaintiff was posted at Secunderabad in the office of Army Chief Engineer (R&D) in the year 1995, his wife by name A.V.Savitri went to Military Hospital, Secunderabad with a complaint of stomach pain and after checkup as an out- patient, she was advised to undergo laproctomy operation and after admission, she was checked up by the concerned doctors about her fitness to undergo operation and she was admitted into the Military
Hospital, Secunderabad in Officers Family Ward on 19-11-1996.
After admission on 26-11-2006, the 1st plaintiff's wife by name
Smt.A.V.Savitri was operated for laproctomy and cystectomy by the defendant No.2 and the defendant No.3 is the head of the Military
Hospital. After operation, the wife of the 1st plaintiff was suffering high fever, bloating abdomen and venous thrombosis and as the days passed the operation wounds instead of healing started oozing pus and her condition started deteriorating and though the 1st plaintiff expressed his anxiety, the doctors in the Military Hospital insisted that there was no need for any worry and the plaintiff's plea for taking second operation were negatived the situation went from bad to worse. It is further stated that upon the requests made by the 1st plaintiff, the defendants advised ultra so8und tests on 13- 12-1996 and in the report there was evidence of heterogenerously enhancing hyper dense well defined mass lession in the left supra vesicle measuring 7.8x7.6 cmand interloop abcess under 3
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liquefaction and infected haematoma. But ever after the report the doctors at Military hospital did not take any steps to identify the mass and continued the same line of treatment with anti-biotics without referring her for second opinion to Apollo Hospital or to any specialist as requested by the 1st plaintiff and prolonged the anti-biotics and after fever subsided she was discharged with an oral advise to come back for dressing in morning and evening.
It is further stated that on 01-01-1997 as the wife of 1st plaintiff Smt.A.V.Savitri developed fever, shivering and vomiting and as prolonged treatment at Military Hospital did not yield any result, the 1st plaintiff took her to Apollo Hospital and thereafter various tests it was revealed that a mop towel was left behind during the operation at Military Hospital, Secunderabd due to which she developed septicemia and after exploratory laprotomy on 8-1-1997 for removal of Mop Towel, she expired on 16-2-1997 due to septicemia. The untimely death of the wife of the 1st plaintiff occurred solely due to the sheer negligence and callousness of the authorities of the Military Hospital in not trying to diagnose or find out the cause for continued illness after the operation and not identifying the mass which was evident in the ultra sound test conducted on 13-12-1996 and further not taking any steps for referring her to any experts opinion or second opinion.
It is further stated that the authorities of the Military
Hospital did not even send the case-sheet or discharge summary 4
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for continuing further treatment at Apollo Hospital inspite of the plaintiff's request and so as to enable the doctors to follow the line of treatment and as the plaintiff No.1 took her to Apollo Hospital, they refused to issue referral letter to the plaintiff No.1 so as to obtain reimbursement from the Government towards medical treatment expenses incurred by him at Apollo Hospital. The plaintiff was put to severe mental agony and torture and suffered financial indebtedness due to the action of the defendants. The 1st plaintiff being a defence person was posted to various places and he had to leave his adolescent daughters to their fate and the plaintiff No.2 lost her daughter and had nobody to depend on and the daughters did not get enough love and affection required at their tender age and the 1st plaintiff lost his consortium.
It is further stated that the plaintiffs problems increased after the death of Smt.A.V.Savitri. The children of A.V.Sandhya and the 3rd plaintiff Miss A.V.Gopika Niar were young and the Army service of the 1st plaintiff was a demanding service and it was a great problem to cope up with both issues. Weeping children and financial crises made by the 1st plaintiff mentally upset as the mother of this children expired at the prime of their age when her requirement was actually set in the life of the girls and her presence is vital for controlling their growth and psychology and the mother is the guiding factor in a girl's life and the loss is immeasurable in terms of money and wealth. The 1st plaintiff lost 5
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his companion and life partner at a young age and he had to cook food with the help of servant and if the servant did not turn up, it was a night time and he was not able to leave the children alone at home and he had to pay for everything which would have otherwise not been so if his wife was alive and expenditure was unpredictable.
It is further stated that the plaintiff filed W.P.
No.7634/1997 before the Hon'ble High Court of A.P. seeking for compensation of Rs.20 lakhs against the defendants and after contest, the Hon'ble High Court of A.P. was allowed the said writ petition with a direction to the 1st defendant to pay a sum of Rs.3 lakhs which was to be apportioned among the petitioners in the writ petition and further gave a liberty to the petitioners i.e. the plaintiffs to file a civil suit claiming for appropriate compensation and the compensation so awarded by the Civil Court shall be adjusted towards the amount awarded by the Hon'ble High Court and for any reason if the plaintiffs failed to obtain a decree from the Civil Court, the amount of Rs.3 lakhs awarded by the Hon'ble
High Court shall not be recovered from the plaintiffs.
It is further stated that as the defendants did not pay the amount as directed by the Hon'ble High Court, the plaintiffs were constrained to file a contempt petition against the defendants seeking to punish them for violating the order of the Hon'ble High
Court and ultimately the defendants paid the amount of Rs.3 lakhs 6
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and the contempt was cosed as the order was complied with.
It is further stated that the plaintiff on 02-11-2004 got issued a statutory notice as contemplated under Sec. 80 of CPC to the defendants to pay an amount of Rs.17 lakhs towards damages in view of the loss of life of the wife of the 1st plaintiff in the most tragic manner due to gross negligence and callousness of defendants and due to which the plaintiff suffered mental agony and trauma which is beyond anybody's imagination. The defendant
No.1 received the notice and the notices sent to the defendants 2 and 3 were returned with endorsement as left. The defendants did not pay the amount of damages claimed by the plaintiffs even though the Court of enquiry conducted by the defence. Hence the suit.
3.The defendant No.1 filed a written statement nteralia denying the plaint averments and stated that the suit is not maintainable either in law or on facts and the same is liable to be dismissed in limini.
It is further stated that late Smt.Savithri w/o
Maj.Gopalakrishna of C.E. (R&D) attended O.P.D. of Obstet. &
Gynae Department of Military Hospital, Secunderabad on 21-9- 1996 and she was advised a surgical treatment on 06-11-1996.
Case was investigated for her fitness for surgery and she was declared fit for surgery on 16-11-1996 and she was admitted to
Military Hospital, Secunderabad on 19-11-1996 and taken up for 7
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surgery on 26-11-1996. CT scan and ultra sound imaging was done at ISMIT Secunderabad on 13-12-1996. The investigation report showed evidence of collection of fluid in left supravesical region i.e.
in the lower middle segment of the abdomen and the same was interpreted to be an interloop abcess or liquefying infected haematoma (blood collection). Patient was discharged from the hospital on 23-12-1996 with advise to come for dressing as a .5 cm area in the scar was still moist. It is further stated that it was learnt subsequently that the deceased lady was admitted to Apollo
Hospital, Hyderabad on 1-1-1997 and after a prolonged period of treatment, she expired in the same hospital on 16-2-1997.
Subsequent events after discharge from the hospital are not known to the defendants. The allegation of the plaintiffs that the cause of death as ascertained by the Apollo Hospital septicemia with ARD's with DIC with Cardio Respiratory failure is not known to the defendants. The CT scan report referred to does not show evidence of foreign body like a MOP, it indicates presence a liquid collection like pus or blood (haemotoma). In fact, the doctors in
Military Hospital who treated the case are qualified and skilled in their profession. In the instant case, there has been no negligence.
When the patient was discharged from Military Hospital,
Secunderabad, she was symptom free has found recorded in the case record. CT scan film and report was given to the patient along with the discharge slip. At no stage, case sheet was asked by the 8
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plaintiff. The plaintiffs or Apollo Hospital authorities did not request for case sheet or discharge summary or any other information regarding the patient. It is further stated that the plaintiff No.1 took his wife to Apollo Hospital, Hyderabad on his own where the patient remained in the hospital from 1st January 1997 to 16th February 1997 i.e. total 47 days. During hospitalization at Apollo Hospital, the patient underwent three major surgical operations on 8th January, 1997, 17th January, 1997 and 5th February,1997. In the first surgery, the discharge summary states that an infected contracted MOP was removed and abdomen was closed. Patient is stated to have been improving after the surgery. Obviously, the intestines were in good condition before this surgical procedure. During next surgical operation on 17th
February 1997,intestine was found to be perforated, for which procedures considered a necessary by surgeon were carried out and subsequently the patient is stated to have shown improvement.
Obviously, the perforation of intestine resulted into peritonitis and septicemia generalized widespread infection causing deterioration in patient's condition though the discharge summary states that the patient was improving after surgery. It is clear from the sequence of events that the damage to the intestine which hide apparently resulted into subsequent complication and death did not occur due to surgery carried out in Military Hospital on 26th November, 1997.
It is further stated that inspite of the death occurred in the Apollo 9
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Hospital and where three operations were conducted, the plaintiffs did not make the Apollo Hospital as the defendant. It is further stated that the defendant No.1 as per the orders of the Hon'ble
High Court of A.P. the defendant No.1 paid Rs.3 lakhs to the plaintiff. Inspite of receiving the same, the plaintiffs filed this suit.
Hence, he prays to dismiss the suit.
4.The defendants 2 and 3 remained exparte as per the docket order dated 20-3-2006.
5.On the above contentions, the following issues has been settled for trial.
1. Whether the plaintiffs are entitled for damages as prayed for?
2. Whether the plaintiffs are entitled for recovery of suit amount as prayed for?
3. Whether the suit is bad for non-joinder of necessary parties?
4. To what relief the plaintiffs are entitled to?
6. On behalf of the plaintiffs, the 1st plaintiff has been examined as P.W-1 and exhibited Exs.A-1 to A-10. The plaintiff also examined the doctor of Apollo Hospital as P.W-2 to prove their case. On behalf of defendants, D.W-1, the Doctor of Military
Hospital, Secunderabad has been examined and no documents are marked.
7.Both sides submitted written arguments. Apart from written arguments of both sides, the oral submissions of both sides can be classified as follows:- 10
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It is contended by the learned Advocate for the plaintiffs that Smt.A.V.Savitri, who is the wife of the 1st plaintiff, and daughter-in-law of the 2nd plaintiff and mother of the 3rd plaintiff, joined in the Military Hospital, Secunderabad on 19-11-1996 and she was undergone operation conducted by defendant No. 2 (Doctor) in the Military Hospital, Secunderabad, but after operation, she was suffering with high-temperature, pain in abdomen and operation wounds could not cured and her health has become deteriorated. The Military Hospital, Secunderabad doctor (D-2) and D-3 also told to the 1st plaintiff (P.W-1) that no second opinion was required.
He further argued that the 2nd defendant, the doctor, and
D-3 advised ultra-sound tests on 13-12-1996, but inspite of the report, the doctors of the Military Hospital, Secunderabad did not take any steps to identify the mass and continued the same line of treatment without referring her (deceased) for second opinion and subsequently Smt.A.V.Savitri developed fever, shivering and vomittings and immediately she was joined in Apollo Hospital and she undergone operation, wherein it was revealed that a MOP towel (cotton piece) was left behind during the operation at
Military Hospital. He further argued that the 2nd defendant being the doctor and defendant No.3 being the Head of the Military
Hospital acted negligently and due to the acts of defendants 2 and 3, who did not give proper treatment and because of their (D2 and 11
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D-3) negligence, a Mop towel was kept inside the womb during the operation of A.V.Savitri (for shorted 'deceased'). Therefore, there is a gross medical negligence on the part of defendants 2 and 3 being the doctor and Head of Military Hospital, Secunderabad.
Because of proper care not taken by the 2nd defendant and 3rd defendant at Military Hospital, Secunderabad, therefore, the deceased died. He further argued that the plaintiffs also filed a writ petition in W.P.No. 7634/1997 before the Hon'ble High Court of A.P. seeking compensation of Rs.20 lakhs and the Hon'ble High
Court of A.P. awarded compensation of Rs. 3 lakhs and also advised the plaintiffs to approach the Civil Court to get their redressal.
Because of the death of the deceased being the wife of the 1st plaintiff and daughter of the 2nd plaintiff and mother of the 3rd plaintiff, there were none to look after them.
He further argued that the Court of Enquiry report also shows that there was gross negligence on the part of the defendants 2 and 3. Because of prolonged treatment of the deceased, the plaintiffs were put to severe mental agony and torture and suffered financial problems. The deceased being the house-wife and she is looking after the welfare of the plaintiffs and other household affairs, she could get more than the salary of the plaintiffs. The compensation claimed by the plaintiffs is just and proper. The deceased died due to the negligent acts of the defendants 2 and 3, being the doctor and Head of the Military 12
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Hospital, Secunderabad and therefore the defendants 2 and 3 who are working under defendant No.1 are jointly and severally liable to pay compensation to the plaintiffs.
As against this, the learned Advocate for the defendant
No.1 contended that the deceased died long after she discharged from the Military Hospital, Secunderabad and there was no negligence whatsoever on the part of the duty doctor while giving treatment to the deceased. At the request of the 1st plaintiff (P.W-1), the doctors of Military hospital advised Ultrasound tests on 13-12-1996 and in the report there was evidence of Hetero
Genously enhancing hyper dense well defined mas lesion in the left supra vesicle. Absolutely there was no negligence whatsoever on the part of the duty doctors of Military Hospital, Secunderabad for the death of the deceased. In pursuance of the directions of the
Hon'ble High Court of A.P. in W.P. No. 7634/1997, the 1st defendant
deposited Rs.3 lakhs and the plaintiffs also claimed reimbursement amount of nearly Rs. 3 lakhs, in all the plaintiffs received Rs. 6 (six) lakhs.
He further argued that the deceased died while she was undergoing treatment in Apollo Hospital long after discharge from the Military Hospital. Therefore, the death of the deceased could not be attributed because of the negligent acts of the doctors of
Military Hospital, Secunderabad. The Apollo Hospital is also proper and necessary party for adjudication of the case. Already 13
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the plaintiffs received sufficient compensation from the defendants.
The alleged compensation claimed by the plaintiffs is excessive, abnormal and unjust, even otherwise there is no legal evidence on record to award damages or compensation to the plaintiffs. The deceased not died in the Military Hospital, Secunderabad and she died long after discharge from the Military Hospital, Secunderabad and while undergoing treatment at Apollo Hospital, Hyderabad.
Absolutely, there is no negligence much less medical negligence on the part of the doctors of Military Hospital, Secunderabad. The medical evidence shows that the damages to the intestine, which had apparently resulted in subsequent complication, but death did not occur due to the surgery carried out at Military Hospital,
Secunderabad and he prays to dismiss the suit.
8.ISSUES 1 and 2
These two issues are inter-related and therefore they can be discussed together.
Issues 1 and 2 could be construed ''whether due to the negligent acts and inaction of defendants 2 and 3 of Military
Hospital, Secunderabad, the deceased died and if so the plaintiffs are entitled to the compensation as claimed by them''.
9.On this aspect, the 1st plaintiff has been examined as
P.W-1 and he deposed that he is a retired defense person and he served as a Major in the Indian Army and the plaintiff No.2 is his mother-in-law and the plaintiff No.3 is his daughter and his another 14
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daughter Smt.A.V.Sandhya is married and was residing abroad and that when he was posted at Secunderabad in the office of Army
Chief Engineer (R&D), his wife Smt.A.V.Savitri went to Military
Hospital, Secunderabad with a complaint of stomach pain and after check up as an out-patient, she was advised to undergo laperoctomy operation and after admission, she was checked up the concerned doctors about her fitness to undergo operation and she was admitted into the Military Hospital, Secunderabad in Officers
Family Ward on 19-11-1996. After admission on 26-11-2006, the 1st plaintiff's wife by name Smt.A.V.Savitri was operated for laproctomy and cystectomy by the defendant No.2 and the defendant No.3 is the head of the Military Hospital. After operation, the wife of the 1st plaintiff was suffering high fever, bloating abdomen and venous thrombosis and as the days passed the operation wounds instead of healing started oozing pus and her condition started deteriorating and though the 1st plaintiff expressed his anxiety, the doctors in the Military Hospital insisted that there was no need for any worry and the plaintiff's plea for taking second operation were negatived the situation went from bad to worse and that on 01-01-1997 as the wife of 1st plaintiff
Smt.A.V.Savitri developed fever, shivering and vomiting and as prolonged treatment at Military Hospital did not yield any result, the 1st plaintiff took her to Apollo Hospital and thereafter various tests it was revealed that a mop towel was left behind during the 15
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operation at Military Hospital, Secunderabd due to which she developed septicemia and after exploratory laprotomy on 8-1-1997 for removal of Mop Towel, she expired on 16-2-1997 due to septicemia. The untimely death of the wife of the 1st plaintiff occurred solely due to the sheer negligence and callousness of the authorities of the Military Hospital in not trying to diagnose or find out the cause for continued illness after the operation and not identifying the mass which was evident in the ultra sound test conducted on 13-12-1996 and further not taking any steps for referring her to any experts opinion or second opinion. He further deposed that his problems increased after the death of his wife-
Smt.A.V.Savitri and that he lost his companion and life partner at a young age and he had to cook food with the help of servant and if the servant did not turn up, it was a night time and he was not able to leave the children alone at home and he had to pay for everything which would have otherwise not been so if his wife was alive and expenditure was unpredictable.
P.W-1 further deposed that he filed W.P. No.7634/1997
before the Hon'ble High Court of A.P. seeking for compensation of
Rs.20 lakhs against the defendants and after contest, the Hon'ble
High Court of A.P. was allowed the said writ petition with a direction to the 1st defendant to pay a sum of Rs.3 lakhs which was to be apportioned among the petitioners in the writ petition and further gave a liberty to the petitioners i.e. the plaintiffs to file a 16
O.S.No.189/2005
civil suit claiming for appropriate compensation and the compensation so awarded by the Civil Court shall be adjusted towards the amount awarded by the Hon'ble High Court and for any reason if the plaintiffs failed to obtain a decree from the Civil
Court, the amount of Rs.3 lakhs awarded by the Hon'ble High Court shall not be recovered from the plaintiffs. As the defendants did not pay the amount as directed by the Hon'ble High Court, the plaintiffs were constrained to file a contempt petition against the defendants seeking to punish them for violating the order of the
Hon'ble High Court and ultimately the defendants paid the amount
of Rs.3 lakhs and the contempt was cosed as the order was complied with. On 02-11-2004 he got issued a statutory notice as contemplated under Sec. 80 of CPC to the defendants to pay an amount of Rs.17 lakhs towards damages in view of the loss of life of the wife of the 1st plaintiff in the most tragic manner due to gross negligence and callousness of defendants and due to which the plaintiff suffered mental agony and trauma which is beyond anybody's imagination. The defendant No.1 received the notice and the notices sent to the defendants 2 and 3 were returned with endorsement as left. The defendants did not pay the amount of damages claimed by the plaintiffs even though the Court of enquiry conducted by the defence. Hence, he filed the present suit.
In the cross-examination, P.W-1 denied the suggestion that there is no negligence on the part of the doctors of Military 17
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Hospital and the plaintiffs are not entitled for the suit claim. He (P.W-1) admitted for having received medical expenses of
Rs.2,99,241/- by way of reimbursement and also Rs. 3 lakhs in pursuance of the orders of the Hon'ble High Court in
W.P.No.7634/1997. He further stated in the cross-examination that he filed the prescriptions, which were issued by the Military
Hospital in the court enquiry. After the operation 2 or 3 days the condition of his wife was normal and subsequently her condition was deteriorated. After treatment, his wife (deceased) discharged from the hospital as per Ex.A-3 dated 23-12-1996. In the Apollo
Hospital, the doctors done four operations. He denied the suggestion that the plaintiffs are not entitled to any compensation.
10.In the instant case, the plaintiffs also examined P.W-2, the Doctor of Apollo Hospital and he (P.W-2) deposed that he is working as Consulting Surgeon in Apollo Hospital, Jubilee Hills since its inception in 1988. He treated the patient by name
A.V.Savitri in January, 1997 when she was admitted by a
Gynecologist. Before admission in their hospital, she was treated at Military hospital at Secunderabad for excision of right ovarian cyst following which she developed high fever and as she was not feeling better after the treatment rendered at Military Hospital, she joined in their hospital. P.W-2 further deposed that the CT scan showed intra-sabdominal abscess (pus) for which laprotomy was done on 08-1-1997 and they removed the infected mop (small 18
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towel) which was left at the time of previous surgery at Military
Hospital. P.W-2 further deposed that the cause of the death of the patient was due to the infection developed due to the retained mop.
The responsibility lies on the surgeon as well as the hospital, where the operation was performed to take care of the patient.
In the cross-examination, P.W-2 stated that the patient was admitted by Gynecologist on 1-1-1997 and he attended the patient on 6-1-1997 after C.T. scan over abdomen was done, which showed large cavity with densities right and central areas of pelvis with collection. He (P.W-2) decided to take up surgery. The treatment given by Military Hospital for ovarian cyst and surgery done by the said hospital is correct. P.W-2 denied the suggestion that the Mop (towel) was not left by the Military Hospital. P.W-2 denied the suggestion that the cause of death mentioned in the death summary that septicemia with ards with DIC with cardio respiratory failure, not to the ovarian cyst problem and surgery done by the Military Hospital. The hospital did not preserve the mop (towel) removed from the abdomen after showing to the patient's husband. P.W-2 further stated in the cross-examination that he took the telephone number of the Surgeon of Military
Hospital and informed about the removal of the mop from the patient's abdomen which was retained during the previous surgery.
11.The evidence of P.W-2, the Doctor of Apollo Hospital clearly shows that CT scan shows intra-abdominal abscess (pus) for 19
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which laptrotomy was done on 8-1-1997 and they removed the infected mop (small towel) which was left at the time of previous surgery at Military Hospital. The doctors of Military Hospital while doing operation on 26-11-1996, one mop (towel) was kept inside the abdomen of the deceased and subsequently abnormal parts of the deceased were infected and resulting in serious ill-health and illness to the deceased. Keeping of Mop (small towel) in the abdomen of the deceased while doing operation in the Military
Hospital, Secunderabad was not noticed by operation doctors, which shows gross negligence and total inaction on the part of the doctors, who conducted operation on the deceased.
12.On behalf of the defendants, one of the doctor of Military
Hospital, Secunderabad has been examined as D.W-1. D.W-1 reiterated almost all the averments made in the written statement of defendant No.1 with regard to the admission of the wife of the 1st plaintiff, conducting operation by the defendants 2 and 3 in the
Military Hospital, Secunderabad etc.. D.W-1 deposed that the 1st plaintiff took his wife to Apollo Hospital, Hyderabad on his won where the patient remained in the hospital from 1st January, 1997 to 16th February, 1997 i.e. total 47 days. During hospitalization at
Apollo Hospital, the patient underwent three major surgical operations on 8th January, 1997, 17th January,1997 and 5th
February, 1997, in first surgery the discharge summary states that an infected contracted MOP was removed and abdomen was 20
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closed. Patient is stated to have been improving after surgery.
Obviously, the intestines were in good condition before this surgical procedure. During next surgical operation on 17th
February, 1997 intestine was found to be perforated for which procedures considered a necessary by surgeon were carried out and subsequently patient is stated to have shown improvement.
D.W-1 further deposed that obviously the perforation of intestine resulted into peritonitis and septicemia generalized widespread infection causing deterioration in patient's condition though the discharge summary states that the patient was improving after surgery. It is clear from the sequence of events that the damage to the intestine which hide apparently resulted into subsequent complication and death did not occur due to surgery carried out in
Military Hospital on 26th November, 1997. D.W-1 further deposed that as per the orders of Hon'ble High Court, the defendant No.1 paid Rs.3 lakhs to the plaintiffs, apart from Rs.2,99,241/- reimbursement amount paid for the treatment to the hospital. The deceased was only household lady and the plaintiffs already received Rs.6 lakhs including reimbursement amount, as such, the plaintiffs are not entitled to any claim.
In the cross-examination, D.W-1 stated that it is true that by the date of admission of the patient Smt.A.V.Savitri w/o Major
Gopalakrishna (P.W-1), he has not even completed his (DW-1)
MBBS and he was posted recently on 29-8-2011 in the Military 21
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Hospital, Secunderabad as a doctor. He has not filed any records such as hospital case sheet, discharge summary or any reports in support of the contention made by him (P.W-1) in his affidavit so as to show that his chief-affidavit is based on such records. It is true that he has filed his evidence affidavit on behalf of Union of India,
Ministry of Defence (D-1), represented by the Military Hospital,
Secunderabad. It is true that he has not seen the documents filed on behalf of the plaintiffs and he is not even aware of the contents of the exhibits filed and marked on behalf of the plaintiffs. It is true that his chief affidavit was prepared not on his instructions but on the instructions of the hospital authorities.
13.There is no explanation whatsoever as to why the 2nd defendant, the doctor of 3rd defendant Brigade did not enter into the witness box to speak out nature of treatment given to the deceased in the hospital. The 2nd defendant is the best person being the doctors to speak that there was no negligence on their part in conducting operation, but they did not enter into the witness for obvious reasons. D.W-1 was posted as a Doctor in Military
Hospital, Secunderabad in the year 2011. The operation was held on the deceased in the Military Hospital, Secunderabad in the year 1996. D.W-1 is not a competent person to speak about the nature of the treatment given by the doctors of Military Hospital,
Secunderabad. Having considered the evidence on record, it clearly shows that while conducting operation, the doctors of 22
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Military Hospital, Secunderabad kept Mop (small towel) in the abdomen of the deceased resulting in serious infections to the deceased and ultimately she died.
14.Exs.A-1 and A-2, ultra sonography reports of the deceased-Savitri in the Military Hospital, Secunderabad. Ex.A-3 is the discharge slip of Military Hospital, Secunderabad. Ex.A-4 is the discharge summary of the deceased-Savitri wherein it shows that extensive treatment has been given to her. Ex.A-5 is the death report of the deceased issued by Apollo Hospitals, Hyderabad.
Ex.A-6 is the death report of the deceased-Savitri issued by
Municipal Corporation of Hyderabad. Ex.A-7 is the death certificate of the deceased-Savitri issued by Apollo Hospitals,
Hyderabad. Ex.A-8 is the copy of order in W.P.No.7634/1997 on the file of the Hon'ble High Court of Andhra Pradesh, Hyderabad, wherein His Lordship observed at para-41 as follows:- ''41. In the result, the writ petition is allowed subject to above observations and directions. A mandamus shall issue with the following directions.
(i) first respondent shall pay an amount of Rs.3,00,000/- (Rupees three lakhs only) which shall be apportioned among petitioners by paying an amount of Rs.50,000/- (Rupees fifty thousand only) each to the petitioners 1 and 4 and Rs.1,00,000/- (Rupees one lakh only) each to the petitioners 2 and 3.
(ii) The petitioners herein are at liberty to file civil suit claiming appropriate compensation. While Civil Court awards any compensation, the amount awarded by this Court shall be adjusted. Even in case the petitioners for any technical reason fail to obtain decree from Civil Court, the amount now ordered to be paid shall not be recovered by first respondent.
(iii) It shall be open to first respondent to recover this amount of Rs.3,00,000/- (Rupees three lakhs only) now ordered to be paid, from respondents 2 and 3 proportionately as it deems fit and proper.'' 23
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Ex.A-9 is the copy of legal notice issued by the plaintiff to the defendants. In the present case, the plaintiffs also filed Ex.A-10 proceedings of the Court of Enquiry relating to the case, which relevant extracts are as follows:- '' (i) for not carrying out proper checking and counting of operation theatre instruments and swabs after the surgery of Mrs. AV Savithri on 26-11-1996, resulting in a surgical mop/swab being left inside the abdomen of Mrs. AV Savithri during the operation......... I recommend; that administrative action to award appropriate censure of GOC-in-C Southern Command be taken against MR-19777 Brlg (now Maj.Ge.) SV Vatve, Commandant, Military Hospital, Secunderabad for the following lapses:-
(a) For not investigating properly the reported presence of cotton material in the abdomen of Mrs. AV Savithri, wife of Maj.P.Gopalakrishnan of Chief Engineer (R&B) Secunderabad after the matter came to his knowledge..........
There were several lapses in the treatment of Mrs. Savithri Gopalakrishnan while she was admitted at MH Secunderabad from 19 Nov 96 to 23 Dec 96. These are:
(a) Leaving a surgical mop inside the abdomen of the patient while closing the operative wound.
(b) Not taking appropriate follow up measures despite the prolonged fever, the persistent discharge from the operative wound and the rare and disturbing indications in the CT scan report.
(c) Not probing the root cause of her problems with commitment and concern and also by consulting the specialists from within the Military hospital and outside.
(d) Discharging the patient prematurely/ not readmitting her, when the problems persisted during the period she was treated as an outpatient. The following are to be blamed for the lapses.
(a) Col.MN Math, Senior Advisor Gynecology, MH Secunderabad for the lapses at para-2 above.
(b) Col MN Math is also to be blamed for concealing the information about detection of the mop of which he knew on 10 Jan 97 and for not going to the aid of the patient/her husband, knowing fully well that the root cause of her problems arose from his negligence during the initial operation. (c) Brig SV Vatve, Comdt MH Secunderabad has failed by not meticulously investigating the reported ;''presence of cotton material in the abdomen of the patient', after the matter came to 24
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his knowledge and by not initiating corrective measures.
(d)That Brig. SV Vatve adopted a rather rigid delaying and unhelpful attitude with regard to the referral of the case to Apollo Hospital/endorsement of the medical reimbursement claim, despite repeated pleas and in the face of the pitiable plight of the officer is also a failing on his part all the more so when the genesis of the problem was the mishandling of the patient while admitted in the hospital commanded by him,. The Court also recommends not only an early favourable processing of the reimbursement claim of the officer, but also appropriate compensation to Major Gopaloakrishnan for the agony suffering and irreparable loss to his wife, emanating fundamentally for the lapses in treatment at Military hospital, Secunderabad.''
The Court of Enquiry (Military) also found that there was negligence on the part of the doctors of Military Hospital,
Secunderabad. There was presence of cotton (Mop) in the abdomen of the patient (Savitri). The Duty Doctors did not take proper care while doing operation on the deceased.
15.During the course of arguments, the learned Advocate for the defendant No.1 pointed out that there was no negligence on the part of the doctors of the Military Hospital, Secunderabad and that the deceased died in the Apollo Hospital while undergoing treatment long after discharge from the Military Hospital and, therefore, no negligence can be attributed to the doctors of the
Military Hospital, Secunderabad resulting in the death of the deceased. In this regard, he relied on a decision reported in 2010 (3) SCJ 349 (Kusum Sharma and others Vs. Batra Hospital &
Medical Research Centre and others) wherein Their Lordships held 25
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at paras 80 and 81 as follows:- ''80. The professional should be held liable for his act or omission, if negligent, is to make life safer and to eliminate the possibility of recurrence of negligence in future. But, at the same time Courts have to be extremely careful to ensure that unnecessarily professionals are not harassed and they will not be able to carry out their professional duties without fear.
81. It is a matter of common knowledge that after happening of some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. A professional deserves total protection. The Indian Penal Code has taken care to ensure that people who act in good faith should not be punished. Sections 88, 92 and 370 of the Indian Penal Code give adequate protection to the professional and particularly medical professionals.''
16.Having considered the evidence on record, the 2nd defendant being the doctor of the Military Hospital, Secunderabad, who is in medical profession did not bestow minimum attention on the deceased (Savitri) while she was undergoing treatment and they (doctors) kept Mop (small towel) in the abdomen and sutured the abdomen, because of that the deceased (Savitri) sustained serious health problems and ultimately resulting in her death. The evidence of P.W-2, the doctor at Apollo Hospital, would clearly establish that there was gross negligence and inaction on the part of the doctors of the Military Hospital, Secunderabad while giving treatment to the deceased. In the present case, the 2nd defendant being the doctor and the 3rd defendant being the Brig. of the
Military Hospital, Secunderabad neither filed written statement nor entered into witness box. Considering the evidence of D.W-1 26
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(doctor), who joined recently in the Military Hospital,
Secunderabad is not a competent person to speak the events that had happened in the Military Hospital, Secunderabad while the deceased was undergoing treatment. The ocular evidence of P.W-1 and the documents relied on by the plaintiffs would get amply corroborattion from the medical evidence through P.W-2, the doctor. Though the defendants denied negligence on their part, but any act or omission of the State and its Functionaries, which takes away the life or otherwise impairs or injuries it, would , in my opinion amount to violation of such person fundamental right to life and liberty flowing from Article 21 of the Constitution of India.
17.The Hon'ble Supreme Court also held in a decision in
Nizam Institute of Medical Sciences Vs. Prasanth S.Dhananka and others, reported in 2010 ACJ 38, wherein Their Lordships observed at para-20 and para-23 as follows:- ''20.......(1) Negligence is the breach of a duty caused by omission to do something which a a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Defintion of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited byJustice G.P.Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person suied. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'. (2)Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment 27
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or an accident, is not proof of negligence on the part of a medical professional. So long as the doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used. (3)A professional may be held liable for negligence on one of the two findings; either he was not possessed of the requisite skill which he professed to have possessed, or he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practises. A highly skilled professional may be possesse4d of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.'' ''23. The evidence in the present case has to be evaluated in the background of the above observations. It is clear that a mere misjudgment or error in medical treatment by itself would not be decisive of negligence towards the patient and the knowledge of medical practice and procedure available at the time of the operation and not at the date of trial, is relevant. It is also evident that a doctor rendering treatment to a patient is expected to have reasonable competence in his field. (Bolam's principle). It is the case of the complainant that it is the lack of care and caution and the neglect on the part of the attending doctors and Dr.Satyanarayana in particular, to make the necessary pre-operative investigations that had led to the complications at the time of operation and thereafter.'' 28
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18.Having considered the evidence on record, there was a gross negligence and inaction in the operation conducted on the deceased by the doctors of the Military Hospital, Secunderabad.
No doubt, in pursuance of the directions of the Hon'ble High Court in W.P. No. 7634/1997, the 1st defendant paid Rs.3 lakhs and nearly
Rs.3 lakhs were reimbursed by the plaintiffs by way of medical expenditure. But, in my view, the compensation already received by the plaintiffs is not just and proper compensation. The deceased is the wife of the 1st plaintiff and daughter-in-law of the 2nd plaintiff and the mother of the 3rd plaintiff. The deceased being the house- wife, she has to look after the welfare of her family members including her daughters. Therefore, it is just and reasonable to award compensation of Rs.3,00,000/- (Rupees three lakhs only) (excluding the compensation already received by the plaintiffs) for mental agony, future attendant charges throughout life of the 1st plaintiff, 2nd plaintiff and the 3rd plaintiff for loss and love and affection etc. These issues are answered accordingly.
19.ISSUE NO.3
It is held in the written statement of the 1st defendant that the deceased had taken treatment in the Apollo Hospital where she died, therefore, the Apollo Hospital is a necessary and proper party to the suit. No doubt, in the instant case, the deceased (Savitri) took treatment in Apollo Hospital, Hyderabad where she 29
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died, but she admitted in the Apollo Hospital on account of negligent acts in conducting the operation by the doctors in the
Military Hospital, Secunderabad. Even it is not suggested to P.W-1 that the Apollo Hospital, Hyderabad is a necessary and proper party. Therefore, the suit is bad for non-joinder of necessary party cannot be accepted. This issue is answered accordingly.
20.ISSUE NO.4
In the result, the suit is decreed in part as follows:-
(i) that a decree for recovery of Rs.3,00,000/- (Rupees three lakhs only) is awarded towards compensation against the defendants 1 to 3 jointly and severally with proportionate costs and with interest at the rate of 6% per annum from the date of the suit till the date of realisation. The compensation shall be apportioned among the plaintiffs by paying an amount of Rs.1,25,000/- (Rupees one lakh twenty five thousand only) each to the plaintiffs 1 and 3, and Rs.50,000/- (Rupees fifty thousand only) to the 2nd plaintiff together with costs and interest.
(ii) The 1stdefendant is directed to pay the compensation, as stated above, to the plaintiffs within two (2) months from the decree and judgment.
(iii) It shall be open to the 1st defendant to recover this amount of Rs.3,00,000/- (Rupees three lakhs only) now ordered to be paid from the defendants 2 and 3 proportionately as it deems fit and proper.
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(iv) The defendants shall pay costs of the suit to the plaintiffs.
Dictated to the Senior Assistant, transcribed by him,
corrected and pronounced by me in open court on this the 24th day of August, 2012.
III ADDL.CHIEF JUDGE
CITY CIVIL COURT: HYDERABAD
APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR
PLAINTIFFS DEFENDANTS
P.W-1: P.Gopalakrishna,D.W-1: Lt.Col.Ashish Bahal P.W-2: Dr.Raghupathi Rao
DOCUMENTS MARKED FOR PLAINTIFFS
Ex.A-1: Ultra-sound Sonography report, dt. 6.11.1996 Ex.A-2: Ultra-sound Sonography report dt. 11-12-1996 Ex.A-3: Discharge slip issued by the Military Hospital, Sec.bad Ex.A-4: Medical Investigation chart, Part-I Ex.A-5: Discharge summary of Apollo Hospital, Sec.bad Ex.A-6: Death report of MCH Ex.A-7: Death certificate of deceased-Savitri Ex.A-8: Certified copy of order in W.P.No.7634/1997 on the file of
Hon'ble High Court of A.P. Hyderabad,
Ex.A-9: Copy of legal notice, Ex.A-10: Copy of the proceedings of Court of Enquiry
DOCUMENTS MARKED FOR DEFENDANT NO.1 -Nil-
III ADDL.CHIEF JUDGE
CITY CIVIL COURT:HYDERABAD