Jerry K Thomascomplainant vs THOMAS CHANDY

THE complainant has filed this complaint praying for compensation of Rs. 19,42,500 from the opposite parties (for short, "OPs") with interest at 12% per annum from 1.2.2002 till realization.

O .P. 1 is the Managing Director/Chairman of the Hosmat Hospital and O.P. -2 is a Doctor working in the said Hospital. The case of the complainant is as follows: In the year 1999 the complainant approached O.P. 1 with his nasal problem in breathing and O.P. 1 directed him to meet O.P. - 2 for treatment. O.P. 2 on examination advised the complainant to undergo Septoplasty operation. Accordingly, the complainant underwent Septoplasty operation to set right the deviated nasal septum right side with spur on 18.8.1999 at Hosmat Hospital. The complainant was an inpatient in the Hosmat Hospital from 18.8.1999 till 21.8.1999. After the operation, as the pain aggravated and the breathing problem persisted, the O.Ps. on examination advised the complainant to take antibiotics for nasal infection. As there was no improvement and, on the other hand, the complainant was made to suffer suffocation, giddiness and vomiting, he again approached the O.Ps. for treatment but the O.Ps. failed to detect the cause for the new problems and instead they advised the complainant to take antibiotics continuously for nasal infection. Since the complainant could not get any relief, the parents of the complainant took him to St. Johns Hospital and the ENT Specialist in the said Hospital advised him to take a C.T. Scan. Accordingly, the complainant took a C.T. Scan at Medinova Hospital which revealed a deposit inside the nasal cavity and through a nasal endoscoy at St. Johns Hospital a cotton gauze was removed from his nasal cavity on 28.11.2000. According to the complainant while conducting Septoplasty Operation at Hosmat Hospital the cotton gauze deposited to prevent bleeding was not removed by the O.Ps. and this non -removal of cotton gauze amounts to an act of negligence on the part of the O.Ps.

THE further case of the complainant is that due to this negligence, complainant faced many problems such as foul smelling emitting from his nose, headache and other complications and his life was miserable as he could not prosecute his studies. Therefore, according to the complainant he is entitled for compensation as prayed for in the complaint.

THE O.Ps. have filed their version. In their version they have admitted that O.P. 2 conducted the surgery for Septoplasty following the known procedures and there was no negligence on his part in conducting the surgery. The further case of the O.Ps. is that while conducting Septoplasty a cotton gauze measuring 3/4th to 1 meter in length was put inside the nasal cavity and the same was removed subsequently. According to the O.Ps. the surgery was successful and the complainant never complained of suffocation, giddiness and vomiting. The O.Ps. in their version have prayed for dismissal of the complaint with exemplary costs of Rs. 5,00,000. The complainant has filed his affidavit by way of evidence and he was cross -examined by the O.Ps. The complainant has also examined one Dr. Balasubramaniam and he was cross -examined by the O.Ps. The complainant has also produced records relating to his treatment in the Hosmat Hospital and the documents maintained by St. Johns Hospital relating to his treatment and also the Scanning Report issued by Medinova Hospital which are all marked as Exhibits. The O.Ps. have also produced documents maintained by O.P. -1 relating to the treatment of the complainant and have filed the affidavit of O.P. -2 by way of evidence and he was subjected to cross -examination by the complainant.

ON the rival pleadings and the evidence adduced before this Commission, the point that arises for consideration is: Whether the complainant proves negligence alleged in the complaint relating to his treatment by the O.Ps. in the Hosmat Hospital?

IT is an admitted fact that the complainant underwent Septoplasty operation in Hosmat Hospital on 18.8.1999. A gauze piece measuring 3 x 2 centimetres, which was a part of the ribbon gauze put inside the nose to avoid bleeding, was not removed by the Doctor who conducted the operation. The complainant had undergone the operation to set right the deviated nasal septum right side with spur. So far as this operation is concerned, the complainant has not alleged any negligence as against O.P. -2 who conducted the operation. The complainant has also no grievance with regard to the procedure adopted by O.P. 2 while conducting the surgery. The only grievance of the complainant is that while doing septoplasty operation at Hosmat Hospital, the part of the cotton gauze deposited to prevent bleeding was not removed by the O.Ps. This non -removal of the cotton gauze has made the complainant to face several complications as pleaded in the complaint. If O.P. -2 had taken proper care to remove the cotton gauze, which was put in order to prevent bleeding, in all probability, there would not have been any scope for further complications. The further case of the complainant is that if the O.Ps. had taken proper care and found out the reason for development of complications after the operation, there was no need for the complainant to approach St. Johns Hospital for further treatment. The complainant has produced the records maintained by St. Johns Hospital, which are marked as Exhibits C -24 to C -26. Exhibit C -25 is a certificate issued by the Doctor who treated the complainant and it discloses removal of cotton gauze measuring 3 x 2 centimetres. Exhibit C -24(a) is also to the same effect. One Dr. Balasubramaniam was examined as C.W. 2. In his examination -in -chief he has deposed with reference to the documents maintained in St. Johns Hospital as follows: ''....As per Ex. C -24A there was a gauze piece measuring 3 x 2 centimetres long with a foul smell was removed from the right nasal cavity. On the review of the patient it was seen on the C.T. Scan that a soft tissue mass in the right nasal cavity on 28.11.2000 under local anaesthesia, a retained gauze piece, was removed.'' He has further deposed that Exhibit C -25 has been issued by Dr. Subhash Chandra Shetty. From this evidence it is seen that due to the complications developed after the operation conducted in Hosmat Hospital, the complainant approached St. Johns Hospital and got the cotton gauze piece removed. O.P. 2 has been examined as R.W. 1. In his evidence he has deposed that in order to avoid bleeding after the operation the ribbon gauze had been used. He has further stated that he removed the ribbon gauze one day after the operation. The records maintained in the Hosmat Hospital are produced and marked as Exhibits.

FROM the evidence it is seen that when the complainant approached St. Johns Hospital, the Doctors who examined the complainant advised him to go for C.T. Scan. Pursuant to that the complainant approached Medinova Hospital for C.T. Scan. Medinova Hospital after conducting the C.T. Scan issued a Certificate, which is marked as Exhibit C -22. The finding in the report reads as follows: "OSTEOMEATAL COMPLEX : Obliterated on right side and normal on left side." From the evidence and documents referred to above it is clear that the complications developed due to the fact O.P. 2 did not remove the cotton gauze which was put in the nasal cavity to prevent bleeding in its entirety and a cotton gauze measuring 3 x 2 centimetres remained in the nasal cavity. The records maintained in the Hosmat Hospital are produced and marked as Exhibits. Exhibit R -9 is the case sheet relating to the treatment in the Hosmat Hospital on 19.8.1999. In this case sheet it is seen that nasal pack was removed. But there is no mention of removal of the ribbon gauze put inside the nose. Even assuming that the ribbon gauze was removed, it looks to us that no efforts have been made by the concerned Doctor to remove the entire ribbon gauze on 19.8.1999. If the entire ribbon gauze had been removed, there was no need for the complainant to approach St. Johns Hospital for further treatment. St. Johns Hospital after looking into the C.T. Scan report removed ribbon gauze measuring 3 X 2 centimeters long which was negligently left by O.P. 2 Doctor, who conducted the surgery, inside the nasal cavity.

THE complainant after the operation approached the O.Ps. regarding the complications developed after the operation. No doubt in the beginning O.P. 2 suspected the infection and prescribed antibiotics but the complainant did not get any relief by taking antibiotics and for about one year the O.Ps. made the complainant to take only anti -biotics instead of making efforts to diagnose the reason for the complications developed after the operation. O.P. 2 Doctor after coming to know of the persisting problems of suffocation, giddiness and vomiting normally would have advised the complainant to go for a C.T. Scan. But O.P. 2 did not advise the complainant to undergo C.T. Scan. The averments made by the complainant relating to the treatment in St. Johns Hospital and removal of cotton gauze from the nose in the said treatment is not disputed by the O.Ps. either in their version or in their evidence. It is not the case of the O.Ps. that the complainant had taken any treatment during the period from the date of discharge from Hosmat Hospital till the date of treatment in St. Johns Hospital from any other Doctor. Therefore, the only irresistible conclusion that we can draw is that O.P. - 2 did not remove the cotton gauze put inside the nose in order to prevent bleeding in its entirety and this made the complainant to go for the treatment in St. Johns Hospital. If O.P. - 2 himself had advised the complainant to go for C.T. Scan in all probability he would have noticed the reason for the complications developed after the surgery. From all these facts we are of the view that O.P. -2 has not taken the required care which any reasonable Doctor would have taken in order to find out the reasons for complications after the surgery. Hence, we are of the view that the complainant is entitled for compensation from the O.Ps.

THE complainant has stated in his complaint that he is entitled for compensation for the injury suffered by him due to the negligence of the O.Ps. for pain and suffering and for loss of education as he could not prosecute his P.U.C. and he was made to spend more money for treatment in St. Johns Hospital, Medinova Hospital, etc. Taking all these aspects into consideration, we are of the view that awarding a sum of Rs. 1,00,000 as compensation in favour of the complainant would meet the ends of justice, as the complainant subsequently got rid of the suffering which he has suffered for a period of one year after the operation conducted at Hosmat Hospital.

IN the result, we pass the following Order: (1) The complaint is allowed in part. (2) O.Ps. 1 and 2 are directed to pay Rs. 1,00,000 (Rupees one lakh only) jointly and severally to the complainant with interest at 6% per annum from the date of the complaint till realization. (3) O.Ps. 1 and 2 are also directed to pay Rs. 5,000 to the complainant towards the costs of these proceedings. Appeal partly allowed.