Sponge left inside man for a year post gall bladder surgery, doctors to pay Rs 5.12 lakh

“Under the well-established doctrine of Res Ipsa Loquitur (“the thing speaks for itself”), the presence of a retained surgical sponge (Gossypiboma) per se constitutes gross negligence, as no complex expert testimony is required to prove that leaving foreign material inside a patient’s body falls far below the standard of a reasonably competent medical practitioner,” the September 24 order said. 

The order added, “the loss on account of the absence of the complainant from duty as he remained without pay/salary has been exaggerated one. During the COVID-19 pandemic when there was a partial lockdown throughout India, the assertion of the complainant that he remained without salary is not supported by any document.” 

Sponge left inside the body

The man was admitted to a hospital in Himachal Pradesh on July 29, 2019, with acute abdominal pain. He was diagnosed with gallstones, underwent surgical removal and was discharged on August 3, 2019. 

About a year later, he developed severe abdominal pain again. Tests conducted in September 2020 found an 8×8 cm collection/foreign body in his abdomen. An ultrasound was conducted on September 16, raising suspicion of a gossypiboma, a retained surgical sponge or cotton swab.

On October 1, 2020, he underwent corrective surgery, during which the retained Gossypiboma was successfully removed. Later, he alleged gross medical negligence for leaving surgical material inside his abdominal cavity during the initial surgery in 2019. He claimed financial losses amounting to Rs 6.5 lakh, and demanded Rs. 3 lakh as compensation for mental agony and physical suffering, and Rs 20,000 as litigation cost. 

The doctor did not file their reply within the prescribed 45-day period, so their right to file a reply was struck off. However, they were allowed to cross-examine the doctor who had performed the corrective surgery.

Insurers say, not covered 

Oriental Insurance said its medical establishment policy covered the hospital from March 5, 2019 to March 4, 2020. It argued that the policy was not renewed and allowed only 90 days after expiry for reporting claims relating to incidents during the policy period. It also argued that the hospital informed it about the claim only on December 20, 2022.

The insurer contended that the complainant had no cause of action against it as no valid insurance coverage was active at the time of claim reporting. 

National Insurance said its policies covered later periods, beginning March 12, 2021, and were issued on a claims-made basis. It pointed out that the policy’s retroactive date of the insured hospital’s policy is explicitly March 12, 2021, while the alleged negligence and corrective surgery took place between July 2019 and October 2020.

It therefore argued that the claim was outside the scope of coverage, rendering them, and had no liability.

Accordingly, the commission allowed the complaint and directed the doctors to pay compensation of Rs 5.12 lakh to the complainant along with interest at 9 per cent per annum from the date of the complaint till its realisation. Apart from this, doctors are jointly and severally also directed to pay litigation costs to the complainant, quantified as Rs 15,000. 

Takeaway

The ruling highlights that leaving foreign objects like surgical sponges, gauze, or cotton inside a patient’s body cavity during surgery is a classic textbook example of gross negligence. No complex expert testimony is strictly required to prove fault when a foreign body is left behind, as it inherently falls below the standard of a reasonably competent practitioner.

Aggrieved consumers may contact the consumer helpline in their respective states (Himachal Pradesh: 1800-180-8087) or call the National Consumer Helpline at 1915 for assistance. 

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