Delhi High Court quashes FIR against hospital, doctor for leaving surgical mop in woman's belly

The Delhi High Court recently quashed a criminal case filed against a private hospital and a doctor in relation to a case of medical negligence where a cotton mop (a surgical mop used to soak up blood) was left in a woman’s abdomen during her c-section surgery [Venkateshwar Hospital and Anr Vs State of NCT Delhi and Anr].

The Court noted that the act was unintentional and that the matter had been settled, with the complainant stating that she did wish to continue with the case.

During a woman’s C-section surgery at the hospital, a cotton mop was left inside her abdomen, which caused infection and pus and necessitated a second surgery.

The woman filed a criminal complaint against the hospital and the gynaecologist.

On the basis of the complaint, a first information report (FIR) was registered by the police under Sections 336 (rash or negligent act endangering human life) and 337 (causing hurt by rash or negligent act) of the Indian Penal Code.

The hospital and the gynaecologist eventually moved a plea before the High Court to quash the FIR, stating that the matter has been settled following a payment of ₹14 lakhs as compensation to the complainant.

Justice Amit Mahajan observed that though the incident deserves “unequivocal censure”, the  act was unintentional and does not attract a criminal trial. 

“This Court is fully cognizant of the discomfort suffered by the patient due to the inadvertent retention of a foreign object in her abdomen, which is unquestionably a matter of profound concern and merits unequivocal censure, as medical professionals are entrusted with the exacting duty of care. Nevertheless, the record, specifically the medical opinion obtained, reveals that the incident was unintentional and due oversight, bereft of the necessary mens rea and such degree of rashness to attract the rigours of a criminal trial,” the Court stated. 

At best, civil liability was warranted and not criminal liability, the Court observed. It further noted that in the light of compensation paid, keeping the criminal case pending would cause undue harassment to the hospital. 

The Court also noted that disciplinary action had already been taken against the doctor and nurse concerned.

“At the best the facts could have delineated a civil liability, however, considering that the name of the Petitioner No. 2 was removed from State Medical Register of Delhi Medical Council for a period of 30 days, disciplinary action being directed to be taken against the nurse who incorrectly counted the no. of mops, the matter has been amicably settled between the parties and the compensation amount of Rs. 14,00,00/- has already been received by the Complainant, continuance of the proceedings will only cause undue harassment to all the parties and will be an abuse of the process of the Court," the Court held.

Upon the discovery of the cotton mop in the woman's abdomen, the doctor had appeared before the Disciplinary Committee of the Delhi Medical Board, which concluded that the act was not reckless to warrant criminal trial.

It also stated that proper management protocol was followed in the post-operative period, and timely surgical referral was done by the petitioners to remove the mop.

The Court noted that the Delhi Medical Council had concluded that there was no “gross lack of competence or recklessness” on part of the petitioners, even though the doctor did not exercise the due diligence that was expected from her.

Further, the Court also considered the complainant’s stand that she is satisfied with the compensation received and does not wish to pursue the matter further. 

Therefore, the Court proceeded to quash the FIR, provided that the petitioners pay a cost of ₹25,000. The Court directed them to pay the cost to the Delhi Police Martyrs’ Fund within four weeks.

Advocates Petal Chandhok and Garima Raisinghani appeared for the petitioners (hospital and the doctor).

Standing Counsel Yasir Rauf Ansari appeared for the State. Advocate Pardeep Dahiya appeared for the complainant. 

[Read judgment]