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Sameer got himself operated for the removal of his one kidney in Dr. Anand's Hospital, due to negligence of the surgeon, who performed the operation a piece of cotton was left in his abdomen. The same was removed by a second surgery for which Sameer was not paid any amount.

In the light of above facts, which one of the following statements is correct ?

  • A.Surgeon cann't be held responsible as surgery is professional art, highly technical and having chances of human error, for which he can't held liable, howerer Hospital has to pay compensation.
  • B.Surgeon can be held liable, provided that Sameer is successfully proved that he is consumer and there is deficiency in the service rendered. Again Sameer has not paid for 2nd surgery.
  • C.Despite negligence, the hospital and surgeon have defence under "Res Ipsa Loquitur.
  • D.Surgeon will be responsible. The piece of cotton in the abdomen of Sameer is sufficient proof and is a result of Res Ipsa Loquitur.

Answer: D

The correct statement is that the surgeon will be responsible, the cotton in the abdomen being sufficient proof under Res Ipsa Loquitur.

Res ipsa loquitur, 'the thing speaks for itself', applies when an accident would not ordinarily happen without negligence and the thing causing it was under the defendant's control. A swab left inside a patient after surgery is a classic example: the fact itself shows negligence, so the burden shifts to the surgeon to explain it.

Option A is wrong because professional skill is no defence to plain negligence. Option C reverses the doctrine, which helps the plaintiff rather than the defendant. Option B wrongly makes liability depend on payment and on proving consumer status.

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