Retained Surgical Gauze: Pecuniary Jurisdiction, Limitation and the Arbitration Clause
On 14 February 2022 Sunita, aged 46, underwent internal fixation of a fractured femur at a 200-bed private hospital in Panchkula. The hospital charged ₹4.2 lakh and the implants cost ₹1.1 lakh. She was discharged on 19 February 2022 and thereafter complained repeatedly of pain and discharge from the wound; the surgeon told her by telephone on three occasions that this was 'normal' and prescribed antibiotics. On 3 September 2023 an X-ray and CT at a government hospital showed a retained surgical gauze deep in the thigh with surrounding infection. A second surgery was required, and she lost part of the quadriceps function. On 12 January 2024 she filed a complaint before the District Consumer Disputes Redressal Commission, Panchkula, claiming ₹40 lakh. The hospital pleads that the Commission lacks pecuniary jurisdiction because the claim exceeds its limit, that the consent form contained an arbitration clause and a 'no claim' clause, that the complaint is beyond two years from the surgery, and that in any case an error of judgment is not negligence and no expert evidence has been led.
1. How is the pecuniary jurisdiction of the District Commission determined, and does the claim of ₹40 lakh take the complaint out of it?
Read the worked answer
The test. Section 34(1) of the Consumer Protection Act, 2019 fixes the District Commission's pecuniary jurisdiction by reference to 'the value of the goods or services paid as consideration', not by reference to the compensation claimed. The Consumer Protection (Jurisdiction of the District Commission, the State Commission and the National Commission) Rules, 2021, notified on 30 December 2021, set that limit at ₹50 lakh for the District Commission, above ₹50 lakh and up to ₹2 crore for the State Commission, and above ₹2 crore for the National Commission. The National Commission took the same view of the 2019 Act in Pyaridevi Chabiraj Steels v. National Insurance Co. (2020).
Application. The consideration paid for the service was ₹5.3 lakh - ₹4.2 lakh hospital charges plus ₹1.1 lakh for implants. That figure, and not the ₹40 lakh claimed as damages, governs. The District Commission therefore has jurisdiction, and the hospital's objection fails. If the drafters had intended the claim to govern, a complainant could oust a forum by inflating the claim, which is precisely the mischief the rule avoids.
Venue. Under Section 34(2)(d) a complaint may be filed where the complainant resides or works, or where the branch office of the opposite party is situated; the hospital is in Panchkula, so venue is also proper.
2. Is the complaint barred by the two-year limitation under Section 69 of the Consumer Protection Act, 2019?
Read the worked answer
The provision. Section 69 requires a complaint to be filed within two years from the date on which the cause of action has arisen, with a power to condone delay on sufficient cause being shown and reasons recorded.
When the cause of action arose. In a case of a retained foreign body the cause of action cannot be tied to the date of the operation. The patient cannot complain of something she does not know and could not reasonably have discovered. The deficiency became known on 3 September 2023 when the imaging disclosed the gauze; the complaint filed on 12 January 2024 is therefore within two years on the most natural reading.
Even on the hospital's reading. If the Commission were to measure time from 14 February 2022, the hospital's own conduct supplies sufficient cause: the surgeon repeatedly told a post-operative patient in pain that it was 'normal' and prescribed antibiotics by telephone without examining her or ordering imaging. A service provider cannot rely on delay that its own reassurance produced; as between the parties, the risk of that delay should fall on the party who caused it. The Commission should in any event record the reasons for condonation rather than dismissing the complaint on a technical plea.
Note. Limitation is a mixed question of fact and law, and the Commission should decide it on material and not merely on the hospital's assertion that the surgery date is the trigger.
3. How should the Commission deal with the arbitration and 'no claim' clauses, and with the plea that an error of judgment is not negligence?
Read the worked answer
The arbitration clause. A clause in a standard-form hospital admission document does not oust the jurisdiction of a consumer commission. In Emaar MGF Land Ltd. v. Aftab Singh (2019) 12 SCC 751 a three-Judge Bench held that an arbitration clause is no bar to a consumer complaint and that Section 8 of the Arbitration and Conciliation Act cannot be invoked in such proceedings, the Act being a beneficial legislation providing an additional remedy. A 'no claim' clause purporting to waive a statutory remedy for negligence is void; parties cannot contract out of the Act, though a genuine, explained consent to a known risk is relevant to the standard of care.
The standard of care. The ordinary test remains Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582 as adopted in Jacob Mathew v. State of Punjab (2005) 6 SCC 1: a doctor is not negligent merely because he made an error of judgment, and the complainant must ordinarily lead expert evidence.
Why that does not save the hospital here. Leaving a surgical sponge inside a wound is not an error of judgment; it is a failure of the basic protocol of counting swabs and instruments before closing. This falls squarely within res ipsa loquitur as applied in Achutrao Haribhau Khodwa v. State of Maharashtra (1996) 2 SCC 634, where a mop was left in the abdomen. The thing speaks for itself; the onus shifts to the hospital to explain how it happened. If the theatre register, the swab count record and the nursing notes are not produced, the inference stands. The hospital is vicariously liable for the surgical team, and compensation under Section 39 may cover the cost of the corrective surgery, medical expenses, loss of earning, and pain and suffering.