ARPANA DUTTA Vs. APOLLO HOSPITALS ENTERPRISES LIMITED

JUDGEMENT

(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 bills 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, but 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 plaintiff's 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 plaintiff's 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 impleading 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. Ther_phone conversation 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 time 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 ultra sound 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 severally 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.