CONSUMER RIGHTS
Put erring doctors in the dock
Pushpa Girimaji

Leaving behind a towel in a patient’s abdomen is sheer carelessness. But failing to detect it even after the patient’s consistent complaint of pain, bleeding and pus formation, is nothing short of callousness. And what makes it even worse is that it happened at the country’s premier institute and not at some small town nursing home.

According to initial reports, the doctors at the All India Institute of Medical Sciences, New Delhi, who conducted the surgery to remove gall bladder stones failed to detect the towel that they had left behind in Ms Gurcharan Kaur’s body even after an ultrasound. This raises another question—-was the ultrasound done properly? Was the ultra sound report that was seen by the doctor really that of Gurcharan’s or someone else? Or was it a case of the doctor not studying the ultrasound report properly? Whatever it may be, if Gurcharan Kaur had continued to go to AIIMS to take the suggested injections twice a day, she might not have survived at all.

Fortunately for her, the family decided that it would be far more convenient to take the injections at a nearby nursing home and it was here that the doctors did a CT scan, detected the towel and removed it. It is bad enough to go through the trauma of surgery once, particularly at the age 60. In Gurcharan Kaur’s case she had to go through it twice, thanks to the negligence of doctors at AIIMS. Every surgery has a risk element, even where doctors take all due care. And she had to take this risk not once, but twice. And also undergo the accompanying physical and mental pain and suffering. The family has already said that they will file a case of negligence and they certainly should against the entire team that operated on Gurcharan at AIIMS.
In the case of Spring Meadows Hospital vs Harjot Singh Ahluwalia, the apex court made it clear that the hospital would be liable for the mistake of its employees. This was upheld by the Supreme Court. This point was also made clear by the apex court in the case of Achutrao Haribhau Khodwa vs the state of Maharashtra. In this case, Chandrakabai developed acute pain and high fever after a sterilisation operation that she underwent at the Civil Hospital, Aurangabad. Eventually, as her condition worsened, she was operated upon once again and the mop, which had been left inside her, removed and the pus drained out, but she did not survive. Here, a case was filed and the Supreme Court held that the government or the state would be vicariously liable for the damages that may become payable for the negligence of its employees—-in this case, doctors.
In most cases of medical negligence, the patient or the relatives have to prove negligence. In some cases, however, negligence is so obvious that the facts speak for themselves. The case of Gurcharan Kaur is one such where the doctrine Res ipsa loquitur or ‘the thing speaks for itself’ applies.

In fact this reminds me of a similar case that came up before the apex court some years ago. Here, doctors at Shriram Clinic, Maternity and Nursing Home, Warud, Amravati district, left behind a pair of artery forceps in Madhuri Atharkar’s abdomen, following a Caesarian section to deliver her child. Here, too, she kept complaining of nausea, stomach ache for over a month after surgery and was even readmitted to the nursing home for treatment but the doctors never detected the forceps. As her condition worsened and became critical, her parents took her to Nagpur and admitted her to the clinic of Dr P.K.Tamaskar. Here, an X-ray of her abdomen revealed the forceps. Worse, the intestine had entwined itself around the forceps and the blood supply to this part had been cut off, leading to its becoming gangrenous. The surgery to remove the instrument was, therefore, complicated—-the doctor had to remove three feet of dead intestine along with the forceps from Madhuri’s stomach.

In Madhuri’s case, the compensation awarded by the courts was meagre. But then there is certainly an attitudinal change in these courts now. In fact, the award of damages should be large enough to compensate Gurcharan, and at the same time have the effect of preventing similar acts of negligence in future—-in short, it should act as a deterrent. In fact part of the compensation amount should come from the salaries of all those involved in the surgery. The Union Ministry of Health, on its part, has to take whatever action that is needed to prevent repetition of such horrific incidents in future.

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