ARUN BALAKRISHNAN IYER Vs. SONI HOSPITAL

JUDGEMENT

(1.) Suit for damages.

(2.) The plaint averments are as follows : First plaintiff is the husband of the second plaintiff; first defendant is the hospital at Jaipur, second and third defendants are the doctors working in the hospital. The second plaintiff was admitted in the first defendant hospital on 28-9-1989 for removal of overian cyst and was under the care, advice and treatment of the second defendant who performed the operation on 29-9-1989 assisted by the third defendant; during the process of operation, the second defendant came out of the operation theatre and had informed the first plaintiff who was waiting outside the operation theatre that the second plaintiff's uterus also should be removed to avoid chances of future surgery; the first plaintiff shocked to hear this and he was not mentally and psychologically prepared for that; first plaintiff protested saying that the consent of the second plaintiff should be obtained for removal of the uterus; but the second defendant pleaded inability as the patient was under anaesthesia, but stated that removal of uterus was necessary; the first plaintiff under such compulsive circumstances had no other alternative except to leave the matter to the discretion of the second defendant; after the completion of the operation, second defendant told the first plaintiff that the uterus had been removed and also insisted that the second plaintiff should not be told about the removal of the uterus as that might have adversely affect her recovery and might give her a mental shock; second plaintiff remained under the post-operative care of the second defendant and was discharged from the first defendant hospital on 6-10-1989. The second plaintiff continued to be under the advice and treatment of the second defendant; but the health of the second plaintiff did not become normal and it resulted in continuous severe stomach ache; this condition deteriorated day by day and she became acutely anemic. The continued treatment of the second defendant did not yield any result; second plaintiff was referred to a general physician for "colic pain" and indigestion by the second defendant and in her opinion, the second defendant had no gynaecological problem; the first plaintiff put the second plaintiff under the care, advice and treatment of Dr. Galundiya at Jaipur; in spite of few months' treatment, the second plaintiff did not improve; therefore, Dr. Galundiya himself referred the second plaintiff to Dr. S. S. Thambi of Santokhba Durbabhji Medical Hospital at Jaipur; he suspected "intestinal obstruction" due to post-operative adhesions and advised immediate hospitalisation. He also advised that the second plaintiff might have to undergo another operation to find out the cause for the decline in her health; second plaintiff was not mentally prepared for the third operation (the first operation she had undergone was a caesarian in the year 1987). Hence, the first plaintiff consulted Dr. Junejo of City Nursing Home at Jaipur and another doctors, but that yielded no result. Therefore, the second plaintiff refused to stay any more at Jaipur and decided to move to Madras; on 28-6-1990, the plaintiffs along with their children came to Madras; the second plaintiff was admitted in "Rakhee Nursing Home" at Madras; subsequently, she was shifted to City Tower Hospital in Madras and was under the care, advice and treatment of Dr. S. Varadharajan; the x-rays and scans taken did not reveal anything; the barium test X-pay revealed enlargement of intestine of the second plaintiff; abscess cavity surrounded by the attachments of intestine was found; Dr. Varadharajan advised her to go in for an immediate surgery and surgery was performed on 11-9-1990 by Dr. Varadharajan; he discovered that an abdominal pad measuring 12" x 12" was lying inside her body in the junction of small and large intestine; the pad was removed; it was found to contain a label naming, "Soni Hospital"; the technical details of the process and result of the surgery conducted by Dr. S. Varadharajan on 16-9-1990 are clearly given in the report given by the doctor; thus, it is clear that the defendants-2 and 3 were grossly negligent in operating on the second plaintiff; they failed to take necessary care expected of any doctor in performance of such operation and closed the abdomen of the patient, opened by them for surgery even without verifying whether any foreign body still remained inside the body of the patient. The act of removal of uterus without getting the permission of the patient is unjustified; no emergency could have surfaced during the operation conducted by the second and third defendants to warrant a hasty decision to remove the uterus of the patient; second defendant failed and neglected to diagnose and detect the actual malady of the patient after the surgery, though it could have been detected had the second defendant taken appropriate diagnostic measures; second and third defendants are employed in the first defendant hospital and hence, the first defendant is vicariously liable for the negligence of the second and the third defendants; the second plaintiff entrusted herself only to the first defendant and therefore, by necessary implication, the act of negligence in allowing a foreign material to be kept in the abdomen and closing it is attributable not only to the second and third defendants, but also to the first defendant; thus all the three defendants are responsible for the acts of negligence and hence they are jointly and severally liable to compensate the plaintiffs for the loss caused to the plaintiffs consequent to such negligence. The plaintiffs have suffered a huge loss, but have restricted it to Rs. 15 lakhs; that amount has to be paid by the defendants together with interest at 19.5 per cent. Because of the unwarranted removal of uterus, the second plaintiff became permanently disabled for further procreative prospects; on account of the surgery, the plaintiffs have been permanently deprived of having full sexual relationship; this is not only due to the physical condition of the second plaintiff, but also due to the psychological scare and the traumatic experiences that have left in the mind of the second plaintiff; the plaintiffs have valued such invaluable losses caused by the defendants at Rs. 5 lakhs; due to their shifting to Madras, the first plaintiff lost his business; he was an active partner of a firm called M/s. Soma at Jaipur; the other partner is a non-resident Indian; the firm had made a net profit of Rs. 4,69,649.02 in the year 1990 and in the next year, Rs. 7,91,326.73; had the firm continued to make a net profit of Rs. 8,00,000/- every year, it would have fetched not less than Rs. 3,20,000/- as profit; thus, they lost Rs. 75 lakhs, as future income; further, the plaintiffs have restricted their claim to Rs. 15 lakhs; thus, the plaintiffs pray for compensation towards damages a sum of Rs. 15 lakhs together with interest at 19.5 per cent per annum on Rs. 15 lakhs from the date of plaint till the date of realisation and for the costs.

(3.) In the joint written statement filed by the defendants-1 to 3, it is stated as follows : The present suit is an abuse of process of law; the plaintiffs have made false and baseless allegations; the suit is not maintainable in this Court as it does not have jurisdiction to try this case; defendant No. 1 is at Jaipur and defendants-2 and 3 are permanent residents of Jaipur; even as per the plaint averments, no part of cause of action arose at Chennai; hence, this Court will not have the jurisdiction to try this suit; leave to sue was granted on 30-4-1991 was ex parte without notice to this defendant; hence, this suit is liable to be dismissed in limine on the question of jurisdiction which may be tried as a preliminary issue. It is further stated that M/s. Soni Hospital was a proprietorship concern upto 1995; thereafter, it became a public limited company by name, "Soni Medicare". The third defendant has been impleaded unnecessarily; she did not perform any operation on the second plaintiff, but was only an assistant to the second defendant. The second defendant is an eminent doctor; she had been awarded various awards, medals and fellowships and membership to number of professional organisations of international level; she has also got the prestigious "PFANNEENSTIEL" medal for excellence in gynaecological surgery and laproscopy in Germany. It is true that the second plaintiff was admitted in the hospital on 28-9-1989; she was diagnosed as having overian cyst; she was under the care and advice of the second defendant; operation was performed on the second plaintiff on 29-9-1989 by the second defendant; the fact that the second defendant came out of the operation theatre and told the first plaintiff about the seriousness of the disease shows that the second defendant was deeply concerned about the welfare of the patient and the feelings of her relatives and the fact that she did not want to perform the operation without their consent; during the operation, it was found that there was serious cyst of ovary about 4" x 4" on the right side; the cyst was twisted on its pedicle; there were no haemorrhages and oedema of tubes, because of twisting; the ovary on the cyst on the left side was unhealthy and looking enlarged forming a mass with the tube of that side which was also edematous and unhealthy; this mass was badly adherent posteriorly with the uterus; there were also lots of omentel adhesions anteriorly over the previous caesarian scar; the uterus was bulky and therefore, the second defendant concluded that abdominal hysterectomy with removal of both the uterus and ovaries was necessary; in this case, the second defendant consulted the first plaintiff and informed him of the situation; only after explaining all the consequences to him and taking his consent, the uterus was removed; the surgery was not only imminent, but also necessary; the first plaintiff never protested against the surgery and that the consent of the second plaintiff had to be obtained; there was no question of obtaining the consent of the second plaintiff as she was under general anaesthesia; the first plaintiff gave his consent out of his own free will for the operation; it is false to say that the second defendant had insisted that the second plaintiff should not be told about the removal of uterus; when the second plaintiff was discharged from the hospital, she was absolutely fit and fine and did not make any complaint; the first defendant has no information of what happened after she was discharged; the plaintiff did not make any complaint to the second defendant; the averment that any abdominal pad had remained inside the body of the second plaintiff during the operation is not correct. The defendants are not aware of any treatment and surgery performed on the second plaintiff by her doctor, Dr. S. Varadarajan in Chennai; the averments that an abdominal pad with a label reading "Soni Hospital" was found inside the body of the second plaintiff and that the same was removed are not admitted; the defendants-2 and 3 were not negligent during the operation; they had taken all necessary care while performing the surgery; the minor complaints during post-operative period of convalescence are normal; the defendants were not negligent nor liable vicariously or otherwise to the plaintiffs; the defendants have exercised full and utmost care and caution in discharging their professional duty; the removal of uterus was done only in the interest of the patient and to save her from future complications; the claim of the plaintiffs is frivolous and misconceived; no cause of action arose against the defendants either at Madras or at Jaipur. Hence, the suit has to be dismissed with costs.