Nirmalendu Paul v. Dr. P.K. Bakshi
I (2001) CPJ 466
Consumer Protection Act, 1986 - Section (14) (1) (d) – Medical Negligence – Wrong Surgery – Non- removal of Cord After Operation – Eye operated – Thread cord not removed, resulted in loss of vision – Expert opinion to support the allegation of negligence not produced – Loss of vision attributable to wrong surgery not observed by any renowned Physicians – Complainant failed to prove the allegations – Not entitled to any relief.
Held : The complainant makes opposite party-1 responsible for losing the vision of his left eye. He states that one thread cord was not removed after the initial operation. But it was removed after a lapse of 2 years when he complained of losing regular shape of left eye. According to the complainant this non – removal clinical and radiological examination, the complainant had been found to have compound comminuted fracture patella. The complainant was advised surgery and it explained to him that either broken pieces of patella are required to be removed or a attempt could be made to repair the patella by putting the wire around the same . The patient was admitted in the hospital for surgery with his consent and the opposite party decided to repair the fractured pieces of patella in view of the younger age of the complainant, which was the standard treatment . The complainant was give I.V. fluids and I.V. antibiotic cover. Under spinal anaesthaesia given by the anaesthesist under tourniquet control and under all aseptic conditions, fracture was exposed. All the fragments were held close to each other by self retaining towel clips. After maintaining articular congruency, a circumferential wire was put around all the fractured pieces of patella and wire was tightened . Quardriceps expansions were repaired and wound was closed over a drain and plaster was applied. Thereafter , upto 18.10.1996 the dressing of the operated wound through window in the plaster were regularly changed and when the wound had become healthy, the complainant was discharged in satisfactory condition from the hospital. The complainant was advised to visit the hospital for further check-up from time to time . Thereafter, the complainant had come for treatment as OPD patient. The OPD record was retained by the patient, as the prescription slip was handed over to him. As per the Photostat copy of the prescription slips produced by the complainant before the District Forum, plasters were changed twice on 18.11.1996 and 18.12.1996 and thereafter the complainant came up for follow up on 2.3.1997 and 5.12.1997 . From the record produced on the file, the complainant appeared to have visited Dr. Salaria on 6.2.1997 . On 5.12.1997 the complainant was advised wire removal, but to the best of knowledge of the opposite party , he did not get wire removed , which could be the cause of pain complained by the complainant . Complainant was given proper, prescribed and accepted treatment as required to the particular case in view of the younger age of the complainant. The complainant had yet to undergo further treatment by way of removal of wire and removal of lower fragment of patella, in case , it continued to cause pain and problem to the complainant, even after the removal of wire.
Initially the complainant filed a case before the District Forum at Chinsurah , Hooghly but subsequently it was withdrawn with liberty due to sue fresh. Thereafter , he approached this commission claiming compensation of Rs. 50,000/- together with refund of all expenses incurred by him towards charges received by the opposite parties. He has also claimed damages and compensation against the opposite parties.
The opposite parties have filed a written objection denying the allegations contained in the complaint petition. It is , however admitted that opposite party-1 performed operation on the left eye of the complainant on 29.6.1993. According to the opposite parties, opposite party -1 is a doctor by profession since 1969 . It has been claimed that he is attached to various medical institutions and hospitals both in and outside country . He has specialization in Opthalmology.
According to the opposite parties the complainant was first examined by opposite parties -1 on 18.3.1993 when he noticed Cataracts in both eyes and suspected Glaucoma changes in both eyes. The patient was referred to Dr. Saha made Glaucoma Test, i.e. Tonometry , Gonioscopy and Perimetery Test on both the eyes with early filed changes in the left eye. Accordingly , the doctor advised the complainant for Cataract extraction and trab left eye. Accordingly , the doctor advised the complainant for Cataract and trab left eye first followed by right eye. Since the complainant agreed, tentative date for operation was fixed on 29.6/1993 amd tje [atoemt was govem doscjarge certofocate pm tjat date. The other allegations contained in the complaint petition have been denied and disputed. It has been specifically denied that there is negligence on their part in the matter of treatment of the patient . Accordingly , the opposite parties prayed for dismissal of the complaint petition.
At the time of hearing, the complainant appears in person and argues the case. The opposite parties are represented by their Counsels . Be that as it may, the undisputed fact is that the complainant having trouble in his left eye approached opposite party-1 for treatment. Opposite party-1 referred him to Dr. Saha for further investigation because he found Cataracts in both eyes and suspected Glaucoma changes in both eyes. After the report pf Dr. Saha was available the same was produced before opposite party -1 who advised the patient for Cataract extraction and trab left eye first pre-operative routine examinations which were done and the date of operation was fixed on and he was discharged on the same date. Thereafter, the complainant consulted opposite party of the Cord was an act of negligence on the part of opposite party-1 and this resulted in the loss of vision was attributable to the wrong surgery done by opposite party - 1 . The complainant does not examine any expert on the subject to eastablish his allegation of negligence on the part of the doctor. to succeed in a case like this . We may observe that there is hardly any cogent material to substantiate the allegation contained in the petition of complaint. Under the circumstances, we cannot but hold that the complainant has failed to prove the allegations against the opposite parties. So he is not entitled to get any relief in this case .
RESULT : Complaint dismissed.
Mr. Justice S.C.Dutta , President - The petitioner , Shri Nirmalendu Paul, aged 73 years approached the opposite parties for the first time on 18.3.1993 for the treatment of his eye. Opposite party-1 , is a Surgeon and Specialist in Intraoculur Lens implant and Micro-surgery and is attached to opposite party-2 , an Eye Foundation Centre. After examination of complainant , opposite party-1 observed that the poor vision in his advice, the petitioner went through some pre-operative tests. He was also examined by one Dr. D.K. Saha an associate of opposite party-1 and a specialist in the subject.
On 29.6.1993, the complainant got himself admitted in the Clinic of opposite party-2 and Surgery was done in the left eye of the complainant. Thereafter, the complainant visited several times to the chamber of opposite party -1 for post-operative care and treatment. The petitioner claimed that the opposite arty has taken a total sum of Rs. 30,000/- on several occasions towards operation charges and other fees. It has been alleged that the opposite parties did not grant receipt for all the money they have received. According to the complainant because of gross negligence the vision of his left eye has been impaired. Gradually, the condition of his left eye deteriorated . The complainant consulted several other renowned Eye surgeons of the Town and was under their treatment for some 1.8.1995 , the complainant again met opposite party-1 who examined him and referred the complainant Dr. Siddhartha Bose . The said doctor doctor suggested re-operation of the left-eye . On 8.8.1995 , the complainant attended the Chamber of opposite party-1 when he was taken to the Operation Theatre. The petitioner felt that a Cord has been removed from his eye. According to the complainant the non-removal of the Cord at the time of the first operation was an act of gross negligence. His left eye had become smaller compared to the right eye . He suffered permanent disability in his left eye due to wrong operation. The complainant consulted Dr. V. Pahwa on 27.11.1995 and understood that he lost vision of the left eye because of wrong operation. The complainant wrote a letter to opposite party-1 making allegation about the damage done to his left eye by the operation. Subsequently , he served Lawyer’s notice upon opposite party-1 claiming compensation.party-1 on various occasions and was also under his treatment. Being dissatisfied with the result of operation, the complainant consulted some renowned Surgeons of the Town for regaining vision of his left eye. But there was no improvement, and he lost vision of his left eye. The complainant makes opposite party-1 responsible for losing the vision of his left eye. He stated that one thread Cord was not removed after the initial operation . But it was removed after a lapse of 2 years when he complained of losing regular shape of left eye. According to the complainant this non -removal of the Cord was an act of negligence on the part of the opposite party . 1 and this resulted in the loss of vision. As noticed , earlier the complainant consulted various renowned Physicians of his town but none of them has observed that the loss of vision was attributable to the wrong surgery done by opposite party-1. The complainant does not examine any expert on the subject to establish his allegation of negligence on the part of the doctor Unfortunate though the incident is , the complainant has failed to prove allegations against the opposite parties. So he is not entitled to get any relief in this case.
In view of the aforesaid, we think that the case should fail. Ordered that the case be and the same is hereby dismissed on the contest but without cost.
Dr. K. Krishnankutty, Vijayasree Eye Hospital v. V.M. Vasu
2001 (1) CPR 603
(i) Consumer Protection Act, 1986 – Section 12 and 17 – Medical negligence – Courts would indeed be slow in attributing negligence - Courts would indeed be slow in attributing negligence on part of doctor if he has performed his duties to best of his ability with due care.
Held: In 1996 (2) S.C.C. 634 – Achut Rao Hari Bhau Khoduva and others v. State of Maharashtra, the Supreme Court held “the skill of medical practitioners differ from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient. But as long as the doctor acts in a manner which is acceptable to the Medical profession and the Courts finds that he has attended on the patient with due care, skill and diligence and if the patient does not still survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence. We had adopted this principle in deciding the case reported in 1999 (3) CPR 442.
(ii) Consumer Protection Act, 1986 – Sections 12 and 17 – Medical negligence – Complainant was operated of his left eye and he lost eye sight – Claim for compensation – Defence plea that eyesight loss was due to presence of organised and present vitreous haemorrhage with tractional retina detachment due to diabetics - Expert evidence that retinal detachment could not be found out by ophthalmoscopy as media of left eye of complainant was not clear. – No negligence or deficiency could be attributed on opposite party – Order of District Forum awarding compensation was liable to be set aside.
(Paras 15, 19 & 20)
Result: Appeal allowed.
1. Achut Rao Hart Bhau Khoduva and others v. State of Maharashtra, 1996 (2) SCC 634. (Para 16)
2. 1996(3) CPR 442. (Para 16)
3. Roe v. Minister of Health, 1954(2) Q.B. 66 (Para 17)
4. Kailash Kumar Sharma v. Dr. Haricharan Madhu, 1997 (2) CPR 126..
Counsel for the parties:
For the Appellant : Shri S. Reghukumar, Advocate.
For the Respondent : Shri M. Premchand, Advocate.
Courts would be slow in attributing negligence on part of doctor if he has performed his duties to best of ability with due care and caution.
K. Madhuri Latha, Member –
The opposite in O.P. No. 784/96 of the Thrissur District Forum has filed this appeal against the order of the Forum dated 31/12/1998.
2. The complainant’s case is that he went to the opposite party’s hospital on 28.9.1995 for the treatment of his eye. He was treated as an outpatient and medicines prescribed were regularly taken. The disease did not subside and he again approached the opposite party on 28/3/1996. The opposite party after assuring that the ailment will be cured, operated his left eye, 29/3/1996. After operation he completely lost eyesight of the left eye. He was advised by the opposite party to go to Aravind Eye Hospital, Madurai for further treatment. Even the expert and costly treatment there, could not cure the damage caused by the earlier operation. Hence he filed this complaint alleging negligence on the part of the opposite party claiming Rs.1,95,500/- as compensation for loss and injury.
3. The opposite party appeared and filed version denying deficiency of service and negligence on his part. Opposite Party submitted that the operation was conducted after all necessary tests and after detailed examination and the eye sight was lost not as a result of the surgery but due to presence of organised and present vitreous haemorrhage with tractional retina detachment due to diabetics. There was no proximate connection between cataract operation and diabetic retinopathy. Opposite party also contended that the treatment to the complainant was free of cost and prayed for dismissal of the complaint. But the District Forum directed the opposite party to pay Rs. 25000 as compenstion for mental harassment, physical suffering and inconvenience caused to the complainant and also Rs.20000/- for medical expenses and Rs.1000/- towards costs of the proceedings.
4. Aggrieved by the above order, the opposite party has come in appeal.
5. The main points highlighted in the appeal memorandum are that the reasoning of the Forum is erroneous resulting from non-consideration and misappreciation of material documents. The oral evidence has also not been properly considered.
6. We called for the records from the District Forum. The complainant’s evidence consists of the oral evidence of PWs 1 and 2 and Exhibits A1 to A20. The opposite party was examined as RW1 and Exhibits B1 to B14 marked on his side.
7. PW1 is the complainant. He states that his left eye was operated by the opposite party. For about 2 years, his eyesight was bad. He understood that he was suffering from diabetics when the opposite party examined him six months earlier than the operation. In the evening of the date of operation the bandage was removed and medicine was applied by the nurse. He could not see anything then. After two days the opposite party examined him.
8. Opposite party gave an injection as according to him the loss of eyesight was due to want of sufficient blood pressure. After six days he was discharged from the hospital. There was no eyesight for the operated eye. The opposite party informed that it may be due to excessive smoking and nothing could be done by him to give him relief. Complainant wanted to go to the eye hospital at Madurai and the opposite party gave him a reference letter. The letter and prescription given by the opposite party hospital are marked as Exts. A1 to A7 and those from the Madurai hospital are marked as Exts.A8 to A12. The bills for purchase of medicine from outside are marked as A13 to A20. The complainant deposes that he was employed in a Snack Bar at Madras and was getting a salary of Rs.3500/- per month. He further says that his eyesight was lost due to operation and and he had spent Rs.20000/- for the operation. In cross examination he admits that the sight of the left eye was worse than that of the right eye. When he met the opposite party on or about 28th of February, the opposite party had opined that the complainant was suffering from cataract and it should be operated. When he met the opposite party for the second time his blood and urine were tested and E.C.G. taken. The complainant admits that all the tests prescribed by the doctor including scaning were done. He was wearing spectacles for twenty years and he was a smoker for about fifteen years. His eyesight was diminishing slowly. For a direct question” (Sic Matter in other language).
9. PW 2 is Dr. Mary Kurtan, Professor of Ophthalmology of the Trichur Med ical College Hospital. She deposes that Vitreous haemorrhage can be caused due to many reasons. Retinal detachment can also be caused by many reasons including Vitreous haemorrhage. Retinal detachment can be found out by oph thalmoscopy examination if the media is clear. Lens implantation can be done even in a diabetic patient. In cases where retinal detachment is found out earlier, lens implantation is not done. According to PW2 even without slit lamp microscopy test cataract operation is done. Lens can be tested with even miscroscope of ophthalmoscope. She was confronted with a statement in the text book “Parson’s diseases of the eye” that lens cannot be thoroughly examined without the assistance of the slit lamp or ophthalmoscope. Her answer is that the said statement is not wrong. The tests to be conducted before a patient is operated for cataract is also stated by her in detail. She admits that in cases of retinal function disorders cataract operation need not be useful. The witness also says that 100% success could not be achieved even if all the tests are conducted. She does not rule out the possibility of vitreous haemorrhage due to retinal detachment. According to her it is not necessary to cause vitreous haemorrhage in all cases of antiglaucoma surgery. In cross examination she was asked whether diabetic retinopathy can be detected if the lens is opaque. She answers only if the media is clear this could be found out. If haemorrhage is present media will not be clear. To avoid complictions like hyper mature cataract, cataract extraction may become necessary even in cases of patients suffering from diabetic retinopathy. If diabetic retinopathy is present further treatment will become necessary. Organised and fresh vitreous haemorrhage can be caused due to diabetic retinopathy which may result in loss of vision.
10. RW1 is the opposite party Dr.K. Krishnankutty. He admits having treated the complainant. He proves Exts. B1 to B14. Ext.B1 is the outpatient record and Ext.B2 is the inpatient record relating to the complainant. The complainant came to him on 28.8.1995 initially. His eyesight was tested. The right eye had 6/12 vision. The left eye could make out the fingers held only a distance oftwo meters. He could not read. His blood sugar was tested. He was a smoker and he was warned that diabetics and smoking will impair his eye sight. Test was conducted to find out the presence of sinusitis and gums were checked up. The eye pressure was also examined. Again tests were conducted a day before the opeation. Then the left eye sight was very meagre. He could identify only the red light. Cataract operation had to be urgently conducted to avoid bursting and unbearable pain. The patient was told about all this and he was informed that the operation is complicated. The patient was told about all this and he was informed that the operation is complicated. The patient expressed his willingness for operation in writing. He was admitted in the hospital on the 28th and operated on the 29th. Next day when the bandage was removed there was only slight bulging of the eye which was usual. Again bangage was applied and on the third day eyesight was examined. He could not see any light. Direct and indirect, opthalmoscopic tests were conducted. It was directed that he was having both new and old vitreous haemorrhage. For confirmation slight lamp microscope examination was done. It was confirmed that he was having organised and fresh heamorrhage and the patient was advised to take a second expert opinion and referred him to the Madurai Hospital. The report from the said hospital was brought by the patient and shown to the opposite party. The loss of vision is due to diabetic retinopathy and smoking. RW1 says that he had conducted all the tests, there was no negligence or want of deligence on his part in treating the patient and there was no nexus between the operation and the loss of eye sight.
11. Ext. B3 is the record to show that sonography test conducted before the operation. Only if the heamorrhage is very heavy, it could be find out by this method. RW1 says that he did not find any presence of vitreous heamorrhage before the operation.The patient was referred to Aravind Eye Hospital, Madurai for specialised surgery. The witness denied negligence and want of care on his part.
12. Exts. A1 to A20 proved by the complainant as PW1. It is evident that the surgery was conducted by the opposite party in the left eye of the complainant, had to pay for the same both in the hospital run by the opposite party and also in the Aravind Eye Hospital, Madurai. The complainant was referred by the opposite party for expert opinion and treatment to Dr. Namperumal Swamy of Aravind Hospital. It is also beyond controversy that the complainant did not get any relief by the surgery or treatment and the condition of his left eye became worse. But the question to be considered is as to whether there was any negligence or deficiency in service on the part of the opposite party in advising the complainant, in prescribing medicines, in conducting the surgery and in the post operational care meted out to the complainant. It is relevant to note that the complainant admists that he was a smoker for more than twenty years and was using spectacles. Even according to him his left eye sight was very poor. When he first came to the opposite party in August, 95, he was examined and on finding that he was a diabetic patient advice was tendered that surgery could be conducted only after controlling diabetics. From Ext. B1 and B2 it is established that initially he was treated as an outpatient and later as an inpatient for operation. Ext. B5 is the blood sugar report dated 27/3/1996. Ext.B3 is the ultrasonography, B4 is the blood chemistry report. Ext.B6 is the biochemistry report. Ext. B7 is the dental hygience report, Ext. B8 is again the biochemistry report and B9 the clinical chemistry report. B10 is the urine test report and B11 is the urine C and S report. B13 is the pre-operative instructions and B14 is the E.C.G. of the complainant dated 4/3/1996. Complainant frankly admits that all the tests prescribed by the opposite party were taken before the operation.
13. The District Forum went at a tangent and doubted the tests conducted for the following reasons.
(a) Ext. B1 and B2 the inpatient and outpatient cards do no show that tests have been conducted.
(b) The test reports are of different clinics and hospitals and as the tests were not conducted by the opposite party in his hospital they could not be relied on.
(c) These tests are done at the instance of the opposite party before PW1 was operated upon and hence not reliable.
Apart from the above, opposite party was not complied with the five preliminary tests which are mandatory before a patient can be operated upon and intraocular lens could be implanted. For these and for not conducting opthalmoscopic test it was held by the District Forum that opposite party has failed to discharge his duty to conduct tests and find out vitreous heamorrhage before the operation.
14. We have to observe that the five tests propounded in the text book namely “Person’s diseases of the Eye” VIIIth Edition by Stephen - J.H. Miller, only says that the tests are only valuable. It is nowhere stated that these tests are mandatory.
15. One has to go by the expert evidence available in the case. We have summarised earlier the evidence of PW2. It is an admitted fact that the media of the left eye of the complainant was not clear. His vision was lazy and eyelens was opaque. The retinal detachment could be found out, according to PW2 by Opthalmoscopy examination only if the media is clear. She says that lens implanation can be done even in a diabetic patient. The view expressed in Parson’s Diseases of the Eye” has been erroded by the advancement of medical science. It is true lens implantation is not to be attempted in a patient having retinal detachment. In this case retinal detachment could not be found out because of the condition of the eye of the complainant. We anxiously analysed the evidence of PW2 to assess that the treatment and surgery on the patient evidences any deficiency in service or negligence. We could not find any one of the deficiencies alleged by the complainant is post operative namely that the bandage was removed by the nurse on the same evening and not by the doctor. But the opposite party in his deposition says that the bandage was removed in his presence after three days. It does not stand to conviction that a nurse will remove the bandage on the same evening of the operation. It seems that the complainant is anxious to allege some deficiency on the opposite party. It is alleged in the notice of the complainant dated 3/6/1996 that sufficient precautions were not taken by the opposite party in treating him. In his evidence as PW1 he admits that all the necessary tests as prescribed by the opposite party were taken. There seems to be no consistant case for the complainant that the opposite party assured him complete cure by a minor operation. The fact that the operation was not minor is evident from the letter of consent given by the complainant before operation. In a case of minor surgery no such consent letter is required. On appreciation of the totality of evidence we are of the view that no negligence or deficiency in service can be attributed on the opposite party.
16. In Achut Rao Hari Bhau Khoduva and others v. State of Maharashtra, the Supreme Court held the skill of medical Practitioners differ from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient. But as long as the doctor acts in a manner which is acceptable to the Medical profession and the Court finds that he has attended on the patient with due care, skill and diligence and if the patient does not still survive or suffers a permanent ailment it would be difficult to hold the doctor to be guilty of negligence. We had adopted this principle in deciding the case reported in 1999 (3) CPR 442. This case was brought to our notice by the learned counsel for the appellant.
17. Lord Denning said in Roe v. Minister of Health “we would be doing a disservice to the community at large if we were to impose a liability on hospitals and doctors for everything that happens to go wrong. Doctors would be lead to think of their own safety than the good of their patients, initiative would be stiffed and confidence shaken. A proper sense of proportion requires us to have regard to the condition in which hospitals and doctors have to work. We must insist a due care for the patient at every point but we must not condemn as negligence which is only a misadventure”.
18. The same law Lord in Hatcher v. Black (1954) Times 2nd July explained the law on the subject of medical negligence against doctors and hospitals in the following words. “In a hospital when a person who is ill goes for treatment, there is always some risk, no matter what cure is used. Every surgical operation involves risks. It would be wrong and indeed bad law to say that simply because of misadventure mishap occurred, the hospitals and doctors are thereby liable. It would be disastrous for the community if it were so. It would mean that if a doctor examining a patient or a surgeon operating at a table instead of getting on with his consent would be forever looking over shoulder to see if someone was coming up with a dagger. His professional reputation is as dear to him as his body. Perhaps more so and an action for negligence can wound his
2. 1999 (3) CPR 442
3. 1954 (2) Q.B. 66
reputation as severally as a dagger can his body. You must not therefore find him negligent simply because something happened to go wrong. If for instance one of the risks inherent in operation actually takes place or some complication ensues which lessens or takes away the benefits that were hoped for or if in a matter of opinion he makes an error in judgement you should only find him guilty of negligence when he falls short of the standards of a skillfull medical man”.
19. The learned counsel for the appellant brought to our notice a decision of the National Commission reported in Kailash Kumar Sharma v. Dr. Haricharan Madhu. In the said case the opposite party conducted surgery for cataract on the complainant and Intra Ocular Lens was fitted. The complainant alleged total loss of vision thereafter and claimed compensation for improper implantation. In the said case even though as per the opinion of another doctor loss of vision wasdue to improper implantation, the case was dismissed finding that the complainant had failed to discharge the burden of negligence on the opposite party. In the present case the contention is that there was organised and fresh vitreous haemorrhage and the opposite party failed to detech this and retinal detachment and conducted the lens implantation resulting in complete loss of vision. The independent evidence of PW2 is sufficient to rebut the contention of the complainant. The letter from Dr. Namperumal Swamy does not also give any indication that the opposite party was negligent in any manner either in examining the patient, conducting the surgery or giving post operative care. The District Forum has faulted the opposite party in so far as all the tests were not conducted by him or in his hospital.no one can expect such facilities in an opthalmic hospital. Minimum facilities and experienced doctors relating to opthalmology are available for treatment of the eye and the non-availability of other general infrastructural facilities or want of most modern sophisticated equipments cannot be termed as deficiency in service of the hospital or doctor.
20. The above discussion lead us to the conclusion tat there is no evidence for negligence or deficiency in service against the opposite party/appellant. The order of the District Forum is liable to be set aside. We allow the appeal, set aside. We allow the appeal, set aside the order of the District Forum and dismiss the complaint. The parties are directed to bear their respective costs through out.
Dr. I Ahmed v. Sumitra Biswas
2001 (2) CPR 306
STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, WEST BENGAL; CALCUTTA
Consumer Protection Act, 1986 – Sections 2 (1) (o) r/w 2 (1) (g) and 15 – Complaint of deficiency in medical service by eye surgeon in performing cataract operation allowed by District Forum on ground that operation was done in hot haste without preoperative investigations – Appeal against – Case of wave complications – Defence of error of judgment or choice of treatment denied to appellant – Whether justified ? (No) – Appeal allowed.
Held: We notice that in this case the Appellant had stopped the operation, closed the eye of the complainant by Pad and referred her to SSKM Hospital for better treatment. The complainant was admitted in the Nursing Home at 5-30 p.m. on 21-8-1998 and he was discharged on 23-8-1998 at about 10.00 a.m. The Forum noticed that the error of the judgment or the choice of the treatment is a good defence which can under the circumstances in a particular case be set up by an answering Doctor but the Forum observed that in this particular case, the Doctor was responsible for a misadventure in deciding to operate the eye of the complainant on the every same day when she was first examined. It may be observed that the Forum over looked the fact that before fixing a date for operation. The Complainant was examined thrice and several routine pre-operative investigations were suggested. Ld. Counsel for the Appellant has drawn our attention to the notings on the left hand side of the prescription (Annexure`A’) to urge that the intra-ocular pressure of the patient was recorded on 19-5-1993 when she was examined for the first time. He submits that the notings therein indicate that it was normal. It appears that the Forum noticed the observation of the several authorities in this regard and there is nothing to show that the O.P. was guilty of negligence. He did not, in our view, fall short of this standard of a reasonably skilled man when this type of incident may occur in one out of 1,000 cases. Anyway, having regard to the facts and circumstances of the case and the authorities on the subject we find that the Forum was not justified n finding the present Appellant guilty of negligence in the matter of performing operation. The Forum ought to have dismissed the case. For the reasons aforesaid we find substance in the Appeal which is hereby allowed and the judgment of the Forum is set-aside and the complaint petition be dismissed on contest but without any cost. ( Para 5 )
Result : Appeal allowed.
Counsel for the parties:
For the Petitioner / Appellant : Mr. Prabir Basu, Mr. D.B.Chowdhury and Mr. A. Dutta, Advocates.
For the Respondent / O. P. S. : Mr.T. Banerjee, Mr. S. K. Dutta and Mr.A. Mitra, Advocates.
The Forum ought to have dismissed the case of medical negligence when this type of incident may occur in one out of 1000 cases and the surgeon did not fall short of a reasonably skilled man.
S. C. Datta, President – This is an appeal by the O.P. against the order of the Forum dated 24-4-2000 directing payment of compensation of Rs.1,50,000/- to the Complainant together with interest @ 12% p.a.
2. Briefly stated the fact of the case is that the petitioner a young unmarried lady approached the O.P. an Eye Surgeon with complication in her left eye. The Petitioner was referred to the said Eye Surgeon by one Dr. Ajit Sarkar of Nabadwip. On examination O.P. fixed 21-8-1998 as the date for operation of her left eye and referred her for admission in Central Nursing Home, Krishnanagar. On admission, her left eye was operated upon on the said date i.e. on 21-8-1998 at about 9.00 p.m. Following the Surgical Operation, the left eye of the complainant got damaged and there was profuse bleeding. On 23-8-1998 at about 10.00 a.m. the Complainant was discharged from the said Nursing Home and she took admission in S.S.K.M. Hospital and was detained there for 20 days for treatment. Subsequently, she was also treated at B.R. Singh Hospital. She was also received treatment from Sankar Netralaya, Madras, after being discharged from B.R. Singh Hospital. It has been alleged that because of negligence and carelessness on the part of the O.P. her left eye has been totally damaged and she lost her vision or the left eye for ever. Accordingly, she approached the Forum claiming compensation..
3. The case was contested by the O.P. by filing a written version wherein the allegations of the complainant were denied and disputed. According to the O.P. the operation was done after routine pre-operative checks and test. There was rapid rise of intra-ocular pressure and lens was being pushed up. Several medicines were administered to reduce the said pressure but unfortunately the lens nucleus popped out and vitreous followed and it was a case of impending expulsive haemorrhage. According to the O.P.every precaution was taken and post-operative care was taken to control the bleeding. The bleeding was controlled on 23-8-1998 when she was advised to consult Vitreous Retinal Expertise and was referred to the Eye Department of S.S.K.M. Hospital. According to him, the incident which occurred is one of the most frightening and serious complications of Cataract Surgery and it is very rare and it happens only on few occasions.
4. On consideration of oral and documentary evidence the Forum found that negligence on the part of the Eye Surgeon was proved beyond all reasonable doubts. Accordingly, the Forum awarded compensation to the tune of Rs.1,50,000/- upon computation of the income of the Complainant of the mental agony and financial stringency of the Complainant.
5. Feeling aggrieved thereby the Eye Surgeon who was the O.P. before the Forum has appealed. According to the Appellant, the Forum was wrong in observing that the Operation was done in hot hast and mechanically without application of medical mind and without advising the patient to get all preliminary pre-operative investigations done. Ld. Counsel appearing for the Appellant submits that the Forum failed to take notice of the fact that all pre-operative investigation were done and the operation was not done in hot haste. In this connection he has drawn our attention to the prescriptions given by the Eye Surgeon. It appears there from (Annexure `A’) that the complainant was first examined by the Eye Surgeon on 19-5-1998. She was advised to undergo some routine pre-operative investigations. Again on 7-5-1998 the complainant was examined by the Surgeon. On 9-8-1998 the Surgeon upon examination of the patient advised admission in the Nursing Home and fixed 21-8-1998 as the date for operation. The notings in the prescription (Annexure `A’) clearly show that the Doctor prescribed pre-operative tests and fixed the date for operation after those tests were done. There is no dispute that the operation was done on 21-8-1998. According to the Surgeon it is a case of impending expulsive harmorrhage and the only treatment is vitreous retinal surgery. The Surgeon has referred her to SSKM Hospital for better management and treatment. On 23-8-1998 she was admitted there and was detained therefore 20 days for treatment. Subsequently, she got treatment at B.R.Singh Hospital and lastly at Sankar Netralaya but none could cure the ailment nor restore her vision of the left eye. There is no opinion of the attending Surgeons attached to any of the institutions referred to above regarding the negligence of the present O.P. in the matter of conducting surgery. The Ld. Counsel for the Appellant submits that the Forum was not justified in coming to the conclusion that none of the Doctors would offer their opinion in writing against the answering Doctor of the present case. He submits that this assumption of the Forum is totally unfortunate and unjustified. The complainant has examined one Dr. Bimal Kr.Hore (PW-5) who is an expert in the field. He has opined that there is a chance of expulsive haemorrhage and it may occur at any time during Surgery and that the only treatment is vitreous retinal surgery. He has further opined that the Doctor should have closed the eye and referred the patient to any other hospital for better treatment. We notice that in this case the Appellant has stopped the operation, closed the eye of the complainant by Pad and referred her to SSKM Hospital for better treatment. The complainant was admitted in the Nursing Home at 5.30 p.m. on 21-8-1998 and he was discharged on 23-8-1998 at about 10.00 a.m. The Forum noticed that the error of judgment or the choice of treatment is a good defence which can under the circumstances in a particular case be set up by an answering Doctor but the Forum observed that in this particular case, the Doctor was responsible for a mis-adventure in deciding to operate the eye of the complainant on the very same day when she was first examined. It may be observed that the Forum our looked the fact that before fixing a date for operation the complainant was examined thrice and several routine pre-operative investigations were suggested. Ld. Counsel for the Appellant has drawn our attention to the notings on the left hand side of the prescription (Annexure `A’) to urge that the intra-ocular pressure of the patient was recorded on 19-5-1993 when she was examined for the first time. He submits that the notings therein indicate that it was normal. It appears that the Forum noticed the observation of the several authorities in this regard and there is nothing to show that the O.P. was guilty of negligence. He did not, in our view, fall short of this standard of a reasonably skilled man when this type of incident may occur in one out of 1,000 cases. Anyway, having regard to the facts and circumstances of the case and the authorities on the subject we find that the Forum was not justified in finding the present Appellant guilty of negligence in the matter of performing operation. The Forum ought to have dismissed the case. For the reasons aforesaid we find substance in the Appeal which is hereby allowed and the judgement of the Forum is set-aside and the complaint petition be dismissed on contest but without any cost. Appeal allowed.
Mr. Yoginder Beri v. Grover Eye & E.N.T. Hospital & Ors.
2001 (2) CPR 358
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T. N. GHOSH v.DR. V. PAHWAL
II (2001) CPJ 473
WEST BENGAL STATE CONSUMER
DISPUTES REDRESSAL COMMISSION,
Consumer Protection Act, 1986 – Section 15 - Appeal – Medical Negligence – Casual and careless examination by opposite party resulted in loss of vision – Complainant failed to prove the allegations of negligence on part of opposite party, not entitled to any relief.
Result : Appeal dismissed.
Mr. Justice S.C. Datta, President – This appeal is directed against order dated 6.8.1999 whereby the complaint was dismissed on contest. The Forum observed that the complainant has failed to establish any case of negligence on the part of the present respondent.
Being aggrieved by the decision of the Forum the complainant has preferred this appeal on the ground that there has been gross miscarriage of justice. According to the appellant the negligence of the respondent is writ large on the face of the prescriptions of the respondent given by Dr. Pahwa himself. His allegation is that Dr. Pahwa failed to diagnose the ailment of both of his eyes by all necessary examinations either by himself or by his assistants. He specifically alleges that Dr. Pahwa failed to detect the glaucoma in his eyes though it had started developing in 1987. Admittedly, the complainant was under the treatment of the opposite party for nearly 3 years from 1991 to 1994. His first visit to Dr. Pahwa was on 18.6.1991 when the doctor detected some black spots in his eyes. The doctor could not detect glaucoma at that time nor could it be detected on subsequent visits to the doctor. On the advice of the doctor he visited him after 6 to 8 months for review. Even during such visits glaucoma could not be detected. All the time the doctor told him that he was afflicted with cataract and since the cataract did not mature the doctor did not advise for operation. The grievance of the complainant is mainly that the doctor being a busy practitioner could not devote sufficient time and give due care to examine him properly resulting in wrong diagnosis. His vision having visibly deteriorated, he approached Dr. Bakshi for examination of his eyes and treatment. Dr. Bakshi examined him on 29.6. 1994. At that time too Dr. Bakshi could not detect glaucoma in the yes of the complainant. Later on the glaucoma was detected and by this time his vision was greatly impaired. The complainant states that all the required tests could have been done on the first day of his visit to Dr. Pahwa and had these been done, the glaucoma would have been detected. The complainant was losing his eye sight very fast. Ultimately, his vision of right eye was totally impaired and he has become blind of one eye and for this unfortunate development he lays blame upon Dr. Pahwa. His grievance is that the doctor made some cryptic notes in the prescription and released him after 4 or 5 minutes of casual examination. He alleges that proper care and attention was not given to him by the opposite party. It is not disputed that the eyes of the complainant were examined at intervals of 6 to 8 months and sometimes one year also and on each occasion the doctor advised him to come for review. According to the complainant this casual and careless examination by the opposite party resulted in the loss of vision. We noticed earlier that when he was examined for the first time by Dr. Bakshi, the latter did not notice glaucome on his eyes. Later the glaucome was detected. In the meantime damage was done to his right eye and his vision was totally impaired. It appears that the Forum discussed the materials available with the record threadbare and came to the clear conclusion that the complainant has signally failed to prove the allegations of negligence on the part of the opposite party. We have considered every aspect of the case and materials on records and we cannot persade ourselves to hold otherwise. In our opinion, the case has been correctly decided and no interference is required. In that view of the matter, the appeal fails and is dismissed on contest.
Mr. R.L. Sethi v. Dr. Somnath Chakraborti
2001(2) CPR 379
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, WEST BENGAL : CALCUTTA
Consumer Protection Act, 1986 – Sections 12 and 17 – Medical Negligence – Cataract surgery in eye of complainant carried by opposite party – Complaint alleging deficiency in service as Cornea of operated eye got partly damaged and iris was completely damaged – Complainant got these repaired in states but vision of eye was not completely restored – Claim for Compensation – Defence plea that during Phaco emulcification complications developed and before process could be carried further the incision was closed – None of the doctors who examined complainant after incident had opined that complications occurred due to wrong application of method of surgery – No evidence that surgeon adopted a new method resulting in complications – Complainant could not be said to have established want of reasonable care and skill in performance of surgery – Opposite Party could not be held guilty of negligence. (Para 5)
Result : Complaint dismissed.
S.C. Datta, President – The Complainant has filed this case praying for direction upon the opposite party to pay compensation amount of Rs. 19,10,437/- on the ground of deficiency in service on the part of the opposite party.
2. Briefly stated the fact of the case is that the left eye of the Complainant was examined by Dr. V. Pahva who fixed 7-11-1994 as the date for Cataract Surgery. In the mean time the Complainant noticed advertisement of opposite party in newspaper regarding stitchless surgery with imported lens. He consulted his family physician who told him that Dr. Chakraborty had imported some machinery a few months back but he could not say anything about his expertise. He told him further that the said doctor was known to one H.N. Vora, former General Manager, UCO Bank. Mr Vora told him that Dr. Chakraborty is one of the best in the country and he should fix up the surgery without any fear. Accordingly he contacted the opposite party who examined his left eye and fixed 2-11-1994 as the date for surgery at 8.00 a.m. The doctor took two and half hours for performing the surgery and he was shifted to a room with bandaged eye. On enquiry as to why so much time was taken for the surgery, the doctor replied that since he had myopia he had to perform deeper surgery and hence it has consumed so much time. The complainant felt unbearable pain and the doctor administered some pain killers and sleeping pills. But it did not improve the situation. The doctor told his friend Mr. A.K. Sarkar who had accompanied him on all the days of visit that the operation was very successful and that it will take another one week to recover. Since the condition did not improve he again consulted him. The doctor again asserted that the surgery had been very successful and he should wait for a week more. Being suspicious he consulted Dr. H.S. Vora who opined that the cornea as well as the Iris have been completely damaged. He further gave out that this sort of damage was not possible in a conventional method of surgery unless the doctor is confirmed that the cornea had been partly damaged and Iris had been completely damaged. He advised to go to Hyderabad but instead he went to Delhi and consulted Dr. Kishanlal, famous eye surgeon who treated him for glaucoma. He advised him to give little more time before he opts for grafting of cornea. He told him further that nothing can be done as far as Iris is concerned. He remained in physical agony for approximately six months as the blisters on the cornea were formed frequently. He consulted Dr. Irving H. Raber, a visiting surgeon from the States. He wrote a letter to the OP on 2-1-1995 indicating him for his unethical role in publishing advertisement in paper when he did not have the necessary expertise in phaco emulcification method. The complainant wrote to him again on 8-2-1995 and went to Bombay where he consulted Dr. Keiki Mehta for right eye. He told him that his left eye had been damaged by an unprofessional doctor by forcing the lens thereby the Iris and cornea both have been damaged. On hearing this he became nervous and went to the States again in September 95 where he consulted Dr. Jonathan H. Tabnamo. He advised for grafting and assured him that his Iris can be eighty percent repaired. During his stay there he was treated for glaucoma by Dr. Simmons who advised him to use drops throughout his life. He came back to India and went to Hyderabad where he consulted the doctors attached to L.V. Prasad Eye Institute but they expressed their inability to take up the surgery. Again he went to the States on 13-6-1996 and got the cornea grafted and Iris repaired on 24-6-1996. According to him even thereafter the vision of the eye has not restored completely. Consequently he has approached the Commission complaining of guilty of medical negligence on the part of the doctor. According to him there was absence of reasonable skill and care by attending doctors.
3. The case is contested by opposite party by filing written version where in it has been stated that the complainants left eye was scheduled to be operated by phaco emulcification but after trying to dilate his pupil with mydriatics for more than an hour, the conventional approach was undertaken. As soon as the incision was given the petitioners IOP went up. The pupil was constricted and there was massive posterior synechia. In fact no attempt was made to do a Phaco emulcification. The Anaesthesist, Dr. Rakesh Jain was present throughout the period of surgery. I.V. Mannitol was given to lower IOP. A posterior syncheiotomy was done. As soon as capsulotomy was done the hard black nucleus was expelled involuntarily. This resulted in iridodonesis. Iris was friable and curled up like soft tissue paper. Residual cortical matter was cleaned up and a posterior chamber adatomed 15.0 dioptres IOL was inserted. The incision was closed with 10/0 interrupted sutures. There was no injury to the cornea at all. The petitioner came to him for follow up but when he advised him to undergo corrective surgery for lowering his IOP the petitioner did not see him. It has been denied that there was any lack of reasonable skill and/or care by him. It has been stated that before undertaking this operation the risk involved in it as well as the nature of complications involved in the petitioners case were clearly explained to him. The fact remains that in the course of operation the complication developed and the petitioner was advised to undergo corrective surgery.
4. It is specifically denied that through his letter date 29-8-1995 has admitted his guilt. He did his best to contain the complications as any other prudent doctor could have done at the particular time. But as a gesture of good will and out of sympathy and human consideration for the suffering of a fellow human being he had written said letter. He emphatically denies that there has been negligence, failure or laches on his part. He prays that the claim petition be dismissed.
5. The complainant alleges that the opposite party is guilty of medical negligence in as much as he (a) failed to use reasonable degree of care, (b) made error of judgement while treating him, (c) made great mistake at the time of operation. It is not disputed that the complainant approached the opposite party for Cataract surgery of his left eye inprefereal to Dr. V. Pahwa. The Complainant states that he was attracted by an advertisement in paper and with the advise of his family physician, approached the opposite party for cataract operation. The operation, however, did not prove successful. According to the Complainant the loss of vision occurred due to careless and negligent act on the part of the surgeon. It is not the case of the complainant that the surgeon was not qualified to undertake the surgery. The opposite party asserts through his letter dated 29-8-1995 (Annexure D) that he had attended Phaco Workshops organized by Pharmacia (Sweeden) in Bombay and has performed a number of surgeries using the machine. He states that the complications occurred during the operation. The Phaco Probe was not used at all. He had do revert to a larger incision to perform a Synechiotomy. According to him, the complications arose without using the Phaco Emulsifier, he states that there was a massive posterior synechia with increased Intraocular pressure and bulging of the Iris in the wound. He, However, through this letter expressed regret for the problems which the complainant had faced and asked for his forgiveness. He has of course stated that he will try to compensate him financially through his meager means by installments. The learned counsel appearing for the complainant submits that this letter of the opposite party clearly shows that the surgeon had admitted his guilt in the matter of operation and then offered to compensate the complainant financially. The learned counsel for the opposite party, however, says that this letter cannot be treated as an admission but it was written to show a gesture of goodwill and sympathy and human sentiment for the suffering of a fellow humanbeing. It has been alleged that the complainant has blown out of proportion with a malafide motive to extract large sum of money from him. He emphatically denies, that there was negligence, failure or laches on his part. In the complaint petition it has been alleged that the complication might not have occurred had not the surgery being done by an unprofessional raw surgeon. As noticed earlier, the surgeon claims himself to be an expert in phaco surgery, but he asserts that the phaco surgery was not resorted to. But the conventional method of surgery was adopted. The complainant got his eye examined both inside the country and abroad and ultimately got the damage repaired to some extent. The grafting of Cornea was done and he has put on medicine regularly and he expects that he may get 60% to 70 % relief. Anyway, none of the doctors who had examined him after the incidenthas said that the complications occurred due to wrong application of method of surgery. At least there is no evidence to show that the surgeon adopted a new method resulting in the complications. He states that his case was that the conventional approach was made and as soon as the incision was given the petitioners IOP went up. The pupil was constricted and there was massive Posterior Synechia. He has narrated the development elaborately in paragraph 4 of the written version, but there is no cogent material to show that the surgeon was responsible for the development of complications. According to the learned counsel for the opposite party it was merely accidental and the surgeon had no hand in it. He submits that it would be too much to read in the letter dated 29-8-1995 that there was admission on the part of the doctor owning responsibility in the matter. The surgeon expressed anxiety because of the sufferings of the complainant and tried to compensate him by money. The surgeon said that he was spending sleepless night since the surgery, but there is nothing to indicate that he had admitted his guilt in the matter. As noticed earlier, none of the surgeon who attended to the complainant subsequent to the event has said that the complications developed because of negligence, carelessness on the part of the opposite party. This being the position it is difficult to conclude that the complainant has succeeded in establishing want of reasonable care and skill in the matter of performing surgery. There is also no material to show that he acted negligently. We cannot, therefore, hold that the opposite party was guilty of negligence so as to entitle the complainant to get compensation from him.
6. For the reasons aforesaid we find no merit in the case which we hereby dismiss on contest.
Jagdeep Mohanlal Kakadia v Ophthalmics & Drugs India & Ors
1997(3) CPR (Guj SCDRC)
the complainant an ophthalmic surgeon while performing cataract surgery used a drug Irrisol which is a balanced salt solution to prevent the cornea form becoming dry , during eye surgery . it was alleged that 4 of his patients became blind because of impurities such as detergents contained in Irrisol . This adversely affected his professional practice. According to the complainant about 10 persons in Bhavnagar had lost vision on account of Irrisol . About 800-1000 patients had lost vision in India on account of use of Irrisol of batch Nos 50, 51, 52
After reading its reasons for condoning the delay in filing complaint the state commission held that the drug Irrisol was purchased for using in course of cataract operations and not for buying and selling nor for financial business and hence it cannot be said that the drug was purchased for commercial purposes. the state commission also held that the pharmaceutical company not only does business but also renders service to the general public and to the medical profession when it manufactures and sells drugs. Therefore manufacture and sale of defective impure or spurious drugs would amount to deficiency in service. So far as the deficiency in service is concerned ,purpose of use if commercial, would not take the complainant out of the definition of the consumer.
Finally the State commission held that the drug Irrisol was defective on the basis of a report of an independent laboratory of USA and other material records. OIt also held the opponent No 1 guilty of unfair trade practice as defined under clause(r) of subsection 1 of section 2 of the CP act.
Lump sum of Rs 15 Lakhs was awarded to the complainant to be paid by Opponent No 1 alone as once the principal is known it would not be proper to hold the agent liable.
As the complainant expressed his desire to use the amount for all those affected by the drug, the state commission ordered handing over the amount to a body or trust for proper use as may be decided by the commission.
Miss Gurpreet Kaur (Minor) v. Dr. R.K. Bhutani
2.1993 (3) CPJ 355: 1993 (3) CPR 409 (NCDRC)
The case put forward by mother of the complainant was that she took her daughter Miss. Gurpreet Kaur (Minor) to the clinic of the opposite party for treatment of some eye disease for the first time on 8.4.1989. Without performing the necessary and preliminary test and without due and proper caution the doctor operated on the left eye of the child, and without proper examination, discharged the patient on the same day. The patient was subsequently taken to his clinic for check-up every morning and evening between 10.4.1989 to 13.4.1989. On 14.4.1989 she was asked to take her to another doctor who demanded RS. 10000/- for another operation on the eye and also stated that he would not take responsibility for the complete cure of the eye. Thereafter the complainant again called on Dr. Bhutani who informed her that he could do nothing further in the matter. Disgusted, she took the child to St. Stephens Hospital where the doctors told her that in case immediate removal of the left eye was not done the child could die. Accordingly, the childs left eye was removed. Keeping in view the permanent loss of the left eye and the physical, mental and social repercussions it had on her future, the complainant prayed for compensation to the tune of Rs.5 lacs. In his written reply, Dr. R.K. Bhutani stated that:
Child was initially brought to him on 6.3.1989 and not on 8.4.1989 as alleged in the complaint.
On 6.3.1989 itself he explained to the mother of the patient, the serious nature of the problem and the left eye was already damaged extremely due to a previous surgery. It was only then that it was disclosed to her that left eye of the child had earlier been operated upon at the Dr. Rajendra Prasad Centre for Ophthalmic Sciences, AIIMS, New Delhi when the child was only ten months old.
He got all necessary tests of blood, urine etc. conducted before operating upon the child.
After surgery, child was kept under observation for twelve hours and discharged only after complete and thorough examinations.
Subsequently, follow-up treatment was given from 10.4.89 onwards.
Held:The appeal was dismissed with costs fixed at Rs.7500/- on the following grounds:
The complainant had suppressed in her complaint the crucial fact that the child had been operated upon when she was only 10 months old. This was verified through relevant records and examination of the then concerned specialist.
Except for filing her own affidavit the complainant has not adduced any expert evidence on her behalf.
Reports of pre-operative tests falsify her allegations that they were not performed.
Rohini Devi v. Dr. H.S. Chudawat & Another
1995(1) CPJ 334 1994(1) CPR 621 (Raj.SCDRC)
It was claimed that the complainant had cataract in her right eye for which she consulted Dr. Chudawat who operated her cataract and implanted an intra-ocular lens on 24.10.94. However, the vision did not return even after 6 months. Dr. Chudawat advised for getting a more costly intra-ocular implant guaranteeing that her vision would become normal. Re-implant was done and separate fees recovered for the same. However, vision still did not improve. Therefore on advice of other doctors her eye was again operated on 7.1.1992 in another hospital and the lens was removed,she had lost sight of her right eye. Dr. Chudawat denied that a guarantee was given regarding return of vision. The possible pros and cons of the operation were explained to her. As the implant did not suit the complainant another lens was implanted by another operation. Thereafter the complainant did not come for follow-up treatment.
The State Commission held that:
the cataract was operated on 24.10.1990
the complainant did not complain of any pain or trouble for 5 months;
the complainant agreed to undergo the second operation from the same doctor had there been any negligence during the first operation the patient would not have got the second operation done from the same doctor;
From the procedure followed by the doctor, it cannot be inferred that there was any deficiency of care or skill on part of Dr. Chudawat;
From the available records it seems that the complainant herself was negligent in taking follow-up treatment.
Just because she had lost vision of her eye, it would not mean that it was due to the negligence of the doctor. Hence, the complaint was dismissed.
Basant Mahadev Samvatsar v. Dr. Sudhir Mahashabde & ors.
State Consumer Disputes Redressal Commission Madhya Pradesh : Bhopal
Consumer Protection Act, 1986 - Sections 12 and 17 – Medical negligence – Complainant was operated for removal of cataract – Loss of vision of for the alleged negligence on part of doctors – No expert evidence examined by complainant to establish any kind of negligence or deficiency on part of opp. parties - Both surgeons, opp. party, by their affidavits, proved what known complications of nucleous fall or retinal detachment happened – Simply because mishap of nucleous fall or retinal detachment happened, opp. parties could not be held negligent or deficient in service – Complaint was liable to be dismissed – Complaint dismissed.
Maya Bagchi v. Dr. Samir Sen Gupta & Anr.
1996(2) CPR 180 WB SCDRC
the complainant was operated for glaucoma right eye. It was alleged that the operation was performed negligently due to which she had to take treatment elsewhere for relief.
The State Commission dismissed the complaint on the basis of (i) the report of L.V. Prasad Eye Institute, Hyderabad, which was filed by the petitioner (complainant) in support of her allegations, on the contrary, supported the opposite party No.1 and (ii) the fact that the complainant rather did not take due care to have the follow up treatment through opposite party No.1 (contributory negligence).
Asha Rani v. Dr. Rohit Grover & Ors.
1996(3) CPJ 259 (Chandigarh SCDRC)
the complainant was operated for malignant glaucoma, but her eye-sight did not improve. It was alleged this occurred due to the negligent manner in which the operation was performed and lack of post-operative care.
After considering all material on record the State Commission held that the complainant failed to discharge the heavy onus of establishing negligence or deficiency and failed to examine any other specialist who subsequently treated her. The fact that the doctor refunded the expenses by means of a cheque, is a circumstance which itself does not go against him. Complaint dismissed.
Ramesh Bhai P. Prajapati & Anr. v. Dr.P.N. Nagpal
1997(1) CPJ 471(Gujarat SCDRC)
the complainant’s son aged 6 years was operated for post traumatic cataract with secondary infection but he lost his vision in that eye. The complaint came to be dismissed as no convincing material evidence was placed before the State Commission.
Kailash Kumar Sharma v. Dr. Hari Chavan Mathur
1997(3) CPJ 41: 1997 (2) CPR 126 (NCDRC)
the complainant was operated upon for cataract and intra-ocular lens (IOL) implant, but there was no restoration of vision in the eye. The Opposite Party submitted that:
– the complainant was apprised of all surgical options and advantages and risks therein, on which he deliberated for over a fortnight and signed a consent form to have IOL implanted and accepted responsibility for all the benefits and ill-effects;
– any allergic that may develop following reaction to such imbalance can be countered by drugs, and the patient was already responding to such a cause, he voluntarily discontinued treatment.
The National Commission concurred with the conclusion arrived at by the State Commission that the complainant had failed to discharge the burden of proving negligence of the Opposite Party and dismissed the complaint.
Bhupendra Nath Das v. Maharaj Ram Krishna Mission Seva Pratisthan & Ors.
1998(1) CPJ 377:1998 (2) CPJ 390(WB SCDRC)
the complainant was operated for cataract. Subsequently, he developed complications and his eye ball had to be removed at another medical centre.
The State Commission dismissed the case on grounds of :
· the decision of the doctor to operator for cataract had not been challenged;
· the operation was done with reasonable care;
· any after-effect subsequently noticed could be either due to lack of proper care or due to other reasons;
· the allegation that wrong medicines were prescribed has not been testified by expert; and
· production of copies from medical books is not enough to prove an allegation of negligence in such a case.
Thomarina Marcel D’Cruz v. Management of St.Joseph’s Boys Higher Secondary School & Ors
1998(1) CPJ 340 (TNSCDRC)
the complainant (represented by his father) was a boarder and injured his right eye due to a fire accident and was taken to a hospital where the whole right eye was removed. It was alleged that the parents were not informed and the operation was done negligently in a hospital which did not have adequate facilities.
The State Commission held that as the doctor told the School authorities that immediately an operation had to be done and thereafter per force they have to give their consent for the same, as parents were staying 140 kms. away and waiting for their arrival would had disastrous results. Hence, there was no deficiency in service on part of the school management. The doctor who operated stated if the operation had not been done it could have been disastrous and he would have been charged with omission, and the hospital was adequately equipped for the operation. Accordingly the complaint was dismissed.
Jyoti Vivek & Ors. v. Pradeep & Ors.
1998(1) CPJ 191 1997 (3) CPR 220 (Kerala SCDRC)
the complainant, a welder by profession was hit in his left eye by small iron particle, and went to the 1st opposite party for treatment, but as there was no relief he went to other doctors and finally to the opposite party No.5, who operated after confirming presence of a foreign body on ultra sound. He ultimately lost his vision.
The District Forum had held the opposite parties No.1 and 2 negligent for not advising x-ray and opposite parties No. 2 and 4 for not doing an ultrasound scan.
On appeal, the State Commission held that the complainant presented only after 3 days of injury to opposite No.1 and even then he did not disclose about the injury. He was advised to come for a check-up but did not turn-up and kept changing doctors.
There was no clear evidence that the treatment and procedures adopted by the opposite parties were not proper or they were deficient in any respect. An expert witness who was examined was also not able to bring out anything in his evidence which would establish that there was any deficiency on the part of the opposite parties. Hence, the order passed by the District Forum was set aside and the complaint was dismissed.
Air Commodore Satya Naryana v. L.V. Prasad Eye Institute
1998(1) CPJ 110 (AP SCDRC)
the complainant, aged about 75 years was operated for cataract right eye and Intra Ocular Lens (I.O.L.) implanted. He developed severe infection and lost vision of that eye. It was alleged this occurred due to gross negligence and improper application of skills and lack of aseptic conditions.
The State Commission held that the opposite parties were fully qualified to undertake this operation and were having latest equipments, and there is no evidence on record that the premises were not in aseptic conditions. There was a always a risk of infection in case of aged and diabetic patients. The commission refused to apply the principle of resipsaloquitur on the ground that in case of medical treatment inspite of best care a patient may die. But that does not by itself establish negligence. Complaint dismissed.
Kashi Ram Bhim Rao Kamble v. Dr. Udaya A. Patil & Anr
1998 (3) CPJ 614 (Mah SCDRC)
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Bhaghat Saran Agarwala & Ors. v. State of Orissa & Ors.
1993 (2) CPJ 1066 (Ori SCDRC)
a school boy was hit by a pellet from a short-gun in his right eye, leading to a penetrating injury. On being operated by an ophthalmologist it was found that since attempts to remove the pellet had failed and further attempts would instead cause greater harm to the injured eye, the wound was closed with sutures. The opposite party-doctor’s version that there was no negligence was supported by standard text books and expert evidence. No negligence inferred.
Mrs. Geeta Kumari v. Dr Mrs Anita Ranjan
1995 (2) CPR 393 (Kerala SCDRC).
The complainant went to the opposite party for fever and redness of the eyes. Medicines and injections were given, but it was alleged that she developed complications due to wrong treatment and drug reaction, and ultimately lost vision of her eyes, on account of development of Steven Johnson Syndrome (SJS).
The State Commission held that there was no evidence to indicate that the patient developed SJS as a result of the medicines and the injections prescribed. The burden is on the complainant to establish that it was on account of the negligence or deficiency in service on the part of the doctor that the complainant had failed to establish this. The complainant also failed to examine any of the doctors who subsequently treated the patient. Complaint dismissed.
YOGINDER BERI v. GROVER EYE AND E.N.T HOSPITAL
III (2001) CPJ 106 UNION TERRITORY CONSUMER DISPUTES REDRESSAL COMMISSION, CHANDIGARH
Consumer Protection Act, 1986 - Section 2(1)(g) – Medical Negligence - Deficiency in Service – Vision lost after cataract operation - Compensation claimed – Complainant abandoned the prescribed treatment without opposite party’s approval - Consulted several eye specialists, underwent laser treatment and other tests which should not have been undertaken – Complainant himself responsible to the condition of eye - Opposite party not in any way medically negligent in providing the treatment – No deficiency in service on behalf of the opposite party proved – Complaint dismissed.
Held : In our considered view, the case law cited by the learned Counsel for the respondent is quite applicable to the facts of the instant case. Resultantly, the complainant had failed to prove any deficiency in service on the part of opposite party No. 2 Dr. Rohit Grover of opposite party No. 1- Grover Eye & ENT Hospital and has further failed to show that Dr. Rohit Grover was in any way medically negligent in providing the treatment prescribed by Dr. Grover and consulted several other eye specialists at Chandigarh and also at A.I.I.M.S. at New Delhi where he underwent laser treatment and other tests which according to Dr. Rohit Grover should not have undertaken so soon after the operation for the cataract in the right eye. In other words, the complainant himself is responsible to the condition of the eye, in which he is placed after the operation. Since the complaint fails against the opposite party Nos. 1 and 2, the question of any liability on the party of opposite party No. 3 - namely, New India Assurance deserves to be dismissed against the opposite parties. The opposite party No 3 is the Insurance Company which has insured the opposite party Nos. 1 & 2 (Para 28)
Result : Complaint dismissed.
Mr. Justice K.K.Srivastava, President – The complainant Mr. Yoginder Beri, a resident of House No. 5155/3, Modern Housing Complex, Manimajra, Chandigarh approached opposite party No. 2 Dr. Rohit Grover of Grover Eye & ENT Hospital, Kothi No. 140, Sector 35-A, Chandigarh (opposite party No 1) for treatment of problem in his eyes. The opposite party No. 2 Dr. Rohit Grover after thoroughly checking the eyes of the complainant Mr. Yoginder Beri apprised him that he was having a Cataract in both his eyes and advised him for operation on urgent basis. The operation was to do done for PHACO EMULSIFICATION i.e., by implanting Intra Ocular lens ( for short to be referred as I.O.L.). The complainant had consulted Dr. Rohit Grover on 2nd May, 1997 for finalising the date of operation which was fixed for 27.5.1997 at 6:30 a.m. It has been alleged in the complainant that PHACO type of mode of Cataract operation was the latest of all the available modes and that his vision will be restored to the extent possible with the aid of spectacles. A sum of Rs. 12,500/- was charged by the opposite party No.2 DR Rohit Grover towards the operation charges which also included the costs of lens. The payment was made by the complainant to Dr. Rohit Grover vide Cheque No. 113597 dated 27.5.1997 drawn at State Bank of India. As Scheduled, the operation Mr. Yoginder Beri on 27.5.1997 at 6:30 a.m. for removal of Cataract. Dr. Rohit Grover opposite party No. 2 assured the complainant once again after the operation that the operation eye concerned was successful. However, the Complainant was not feeling comfortable after his right eye opened to light and problem of poor vision persisted. The complainant informed Dr. Rohit Grover opposite party No. 2 about his aforesaid problem. The opposite party No. 2 Dr. Rohit Grover advised rest to the complainant from time to time and continued to assure improvement in the eye with the passage of time.
2. Mr. Yoginder Beri, the complainants was checked by Dr. Rohit Grover of respondent No. 1 – Hospital on 29.5.1997, 9.6.1997 and 27.6.1997. On 9.6.1977, opposite party No. 2 Dr. Rohit Grover advised the complainant to use spectacles with the following number :
Right eye Left eye
Dist 4.50/1.00/300 1.00
Near 2.50/1.00/30 +2.50
Even after using the spectacles of the power mentioned above, the complainant Mr. Yoginder beri did not feel comfortable as he was seeing double images of the object. This problem of double image in the vision of the left eye was told to the opposite party No. 2 Dr. Rohit Grover during the check up on 27.6.1997. Dr. Rohit Grover was clearly told that the complainant was having the problem of diabolical images and lack of clarity in the near distance. During the Discussion regarding the non-improvement in the vision without the spectacles as claimed by opposite party No. 2 Dr. Rohit Grover and the reasons for using a lens of 12-D (Diopter) against his nothing in the dairy as 8, the opposite party No. 2 Dr. Rohit Grover Candidly admitted two points which were as under :
(a) that as per his experience he normally makes the adjustment by atleast one or two powers of lens and he also subscribed to his point by showing the records maintained in a diary. In most of the records as shown by the doctor, the complainant observed that in all the cases respondent No. 2 has reduced the power of the lens by one or two points i.e., if the power as per the scanning machine was 17 he used a lens of 15.
(b) Respodent No. 2 also admitted that the lens of 5 diopter is not normally available but can be procured on orders from suppliers at Delhi or from the manufacturing companies.
Dr. Rohit Grover changed the number of the spectacles but the problem in the eyes still continue. The complainant made further queries fromt he opposite party No 2. Dr. Rohit Grover whether any re-operation is possible t rectify this disorder by change of lens implanted by him but Dr. Rohit Grover showed his ignorance and recommended that names of doctors for consultation who according to him were authorities in said kind of surgery in India :
1. Dr. (Prof.) V.K.Dada. Head of Deptt., AIIMS, H.P Hospital, New Delhi
2. Dr. Kumarand Dr. Keiky Mehta. Colaba Hospital, Bombay.
It is alleged that the complainant Mr. Yoginder Beri went to New Delhi and sought appointment with Dr. V.K. Dada at his residence as he was on leave from hospital. The complainant visited the AIIMS Hospital on 7.7.1997 for consultation and after checkup Dr. Dada recommended yag laser and other tests and asked him to visit again on 10.7.1997. On 10.7.1997, Dr. Dada verbally advised the complainant that the risk of re-operation should not be taken as the chances of its success are almost nil and advised the complainant Mr. Beri that he should remained dependent on the left eye and be cautious in the event of its operation if required at later stage.
3. It has been, contended by the complainant that due to poor vision, he had to seek his premature retirement from the job with the State Bank of India otherwise in the normal course, the complainant was to retire on attaining the superannuation age of 60 years on 30.4.2001. as his date of birth was recorded as 15.4.1941. The complainant, however, sought his premature retirement as aforesaid on 2.6.1998. It is the allegation of the complainant that he suffered permanent disability in his vision resulting in physical and mental harassment due to the deficiency in service on the part of the opposite parties. Mr. Yoginder Beri, the complainant, claimed damages to the extent of Rs. 7 lacs with the following break up :
Paid to opposite party No.1 towards the operation
Paid as consultation charges
Loss of salary of two months
Compensation for permanent disability, physical torture and mental agony to the complainant and his family members
4. The complainant, however averred that he received a sum of Rs. 10,000/- from his employer i.e., the State Bank of India being the medical reimbursement which is admissible in the service of the complainant. The complainant has assured in para 14 of his complaint to return the said amount of Rs. 10,000/- to his employer, if the same was ordered parties.
5. The complainant got a legal notice served on 5.4.1998 on opposite party No. 1 and 2 claiming the compensation of Rs. 7,00,000/-. The said legal notice was replied by both the opposite parties vide reply dated 31.5.1998 and denied their liability to pay any amount co compensation. With these allegations, this complaint was filed before this Commission through Counsel Mr. Ashok Gupta, Advocate on 31.3.1999 and amended complaint was claimed against the three opposite parties. The third opposite party being the New India Assurance Company Limited, Sector 17-D, chandigarh, the insurer of opposite parties Nos. 1 and 2.
6. After serving the notice of the complaint case, a joining reply was filled by the opposite party Nos. 1 and 2. Certain preliminary objections was raised in the reply which states, briefly as under :
(1) The complainant does not disclose the basis of the opinion formed by the complainant for any deficiency in service. No documentary proof has been filed along with the complaint from any specialist showing the treatment given by the opposite parties being not in accordance with the medical science.
(2) There is no basis for claiming compensation for a sum of Rs. 7 lacs. The payment made to the opposite party Nos. 1 and 2 included other charges out of which a sum of Rs. 4,800/- were the operation charges.
7. It has been alleged that the amount of compensation claimed by the complainant is exorbitant. As a matter of fact the complainant approached Dr. Rohit Grover the answering opposite party No. 2 for removal of Cataract by automated machine called PHACO for short. The complainant was provided intra-ocular lens with phaco emulsification, which is the latest and safest method of Cataract surgery being most popular in America and opposite party No. 2 had been practicing on this line since 1994.
8. It was specifically averred in para 3 by the opposite parties that the complainant was told that since his right every has been weak since birth and even after operation, there will be certain limitation of vision as compared to normal eye. The complainant was using spectacles before operation of the number about - 10.0 in the right eye which he never used as the eye never used as the eye never functioned well with the glasses. This condition of Anisometropic Amblyopia ( for short hearafter called lazy eye.) It was further contended that the success of the operation was absolute and the complainant was happy after having shown to Professor V.K. Dada of A.I.I.M.S, New Delhi. The complainant had absolutely normal post operative recovery except for the problem of weak right eye as explained above. It was also averred that as a matter of fact the complainant wanted to take leave on medical ground as he wanted to avoid posting out of station and he intended to prolong the medical leave with the help of opposite parties, which was refused and this complaint has been filed only after the said refusal on the part of the opposite party No. 2
9. In para 4 of the preliminary objections, it was contended that the eye has been traditionally compared to a camera and cinema project or where object of the outside world is focused on the other side of the lens. It is submitted that longer the eye larger will be the size of the image as is clear with the diagrams drawn and attached with this reply. If the object is focused on the retina of the eye and is viewed with internal lens system of the eye then the longer eye needs minus number of the glasses for focusing this image as is common that the minus numbered glasses make the image seen smaller and plus numbered glasses make the image appear bigger.
10. In the case of the complainant, there were conflicting situations due to inherent inborn condition, which makes it possible to give either near zero spectacles number with greater image size difference of the two eyes as is explained above and to keep the image size similar between the two eyes. It was categorically mentioned in the para aforesaid that the above matters were fully explained to the complainant. The treatment prescribed by the opposite party No. 2 is the correct treatment as per the Specialist’s opinion Dr. V.K.Dada in his book, the extract of which was attached with the reply. In nutshell, the opposite party No. 1 and 2 averred in the last paragraph of para No. 4 of the preliminary objection as under :
” Hence the entire treatment given to the complainant by the respondents was in accordance with the latest Medical Science and the complainant has improved from the stage he was before operation”
11. On merits, the averments made in the complaint were replied to. The relevant paragraphs to which our attention was drawn are paragraphs 9,10,11 and 12 to which references may be made as under :
12. In para 9, the averments made in the complaint were denied and it was submitted that it is evident from post operative recovery that spectacles number was prescribed within two weeks of surgery. The difference of spectacle number of the two eyes which has been since childhood was reduced to a great extent. The correct power of lens to be implanted is decided after taking into account both eyes, if the size of both the eyes is similar and in the case of complainant his right eye was bigger than the left eye, hence there was a difference of image.
13. In Para 10, it was averred after denying the averments made in Para 10 of the complaint that the complainant failed to understand the meaning of diabolical images which he kept on asserting. It is submitted that the double image or diplopia can result if lazy eye is again put to work in late stage of life. The deficiency in power of glasses of the left eye, which was not operated, cannot be commented upon. The use of normal zero powered glasses as suggested to the complainant of his right eye is a very valid suggestion and is being adopted by the complainant.
14. It was further averred that the complainant started wearing glasses since he used to have double vision. However, he tried to wear the correct powered spectacle for his right eye during young age. If spectacle power of the right eye is to be matched with the left eye, that can be done at this stage but the persistence of double vision is likely to be there on account of image size disparity of two eyes due to difference in size.
15. In para 11, the allegations made in the complaint were denied as incorrect and it was submitted that the complainant cannot read even the top line of the chart before the operation and after operation his vision was bought to 6/18 ( top 4 lines) in the right eye.
16. In para 12, it was averred, inter alia, as under :
“ The complainant was explained that spectacles will be needed after surgery with limitation of vision due to inherent condition. The complainant probably has not informed about his right eye being probably has not informed about his right eye being lazy eye since birth and also did not mention that the underwent YAG Lazer Capsulotomy for his right eye at New Delhi on 7th of July, 1997 without the advice of the operative surgeon, which was not required at all and which is not taken atleast for three months after Cataract surgery. The power difference of the two eyes can be undertaken if the image size disparity factor is overlooked.”
17. The case proceeds ex-parte against the opposite party No. 3 – New India Assurance Company Limited. The parties filed their respective evidence in the shape of their affidavit and were cross-examined by the opposite Counsel. The learned Counsel for the complainant made his submissions before us which were replied to and given submissions were put forth by the learned Counsel for the opposite party No 1 and 2. We were taken through the record of the case in detail which included the reference to the pleadings and to affidavits and cross examinations of the parties. Both the parties relied on the case law regarding the case being brought under the category of medical negligence and consequently the deficiency in service on the part of opposite party No. 2 and the denial of it by the said party.
18. Before proceeding to consider the case of the complainant regarding deficiency in service on part of opposite party No. 2 and medical negligence on his part as the factor responsible for the persistent trouble in the eye of the complainant Mr. Yoginder Beri, it would be useful to refer to certain salient features of the case, as also to the evidence of the parties. It is undisputed that the complainant Mr. Yoginder beri had problem in his eyes and he consulted opposite party No. 2 Dr. Rohit Grover of the opposite party No. 1 – Grover Eye & ENT Hospital in May, 1997. It is also not disputed that the opposite party No. 2. Dr. Rohit Grover advised surgery in his right eye by imparting of interlocular lens with Phaco emulsification. For the Service rendered by the opposite party No. 2 Dr. Rohit Grover for himself and on behalf of opposite party No. 1 the hospital, the requisite fees was charged from the complainant and the same is not in dispute. It is also not disputed that ultimately the right eye of Mr. Yoginder Beri was operated upon on the date fixed i.e., 27.5.1997 at 6:30 a.m. at hospital (opposite party no 1) by opposite party No 2 Dr. Rohit Grover. It is also not in dispute that the complainant himself went to have consultation from Dr. V.K.Dada, Head of Department, All India Institute of Medical Sciences (A.I.I.M.S), New Delhi and that there he had some treatment of YAG Laser and other tests.
19. The dispute arises about the treatment by means of operation conducted by the treatment by means of operation conducted by opposite party No. 2 Dr. Rohit Grover on the right eye resulting to the problem in the eye of complainant regarding his seeing double image and incompatibility of images in two eyes i.e. right side operated eye and the left side eye. The main stand of the opposite party No 1 and 2 is that that right eye of the complainant Mr. Yoginder Beri was bigger than the left eye and the result of it was that he was having bigger image of the object in his right eye then the size of the image perceived through the vision in the left eye. According to the averments made in the reply of the opposite party No 1 and 2, this problem which he was having since his birth and childhood. It may also be mentioned that at the time of the initial check up of the eyes of the complainant Mr. Yoginder Beri was told by Dr. Rohit Grover about this abnormality and the fact that there was limited visual gain accepted in the right eye. The perusal of Annexure C-1 (2nd page0 will go to show that an endorsement was made regarding the right eye by Dr. Rohit Grover, which is as follows :
” Limited Visual gain Rt. Eye explained “
Dr. Rohit Grover filed his affidavit by way of evidence and deposed therein the allegations made in written reply. The affidavit contains almost the same allegations with are mentioned in the written reply, a reference to which has already been made in the earlier part of our judgment.Dr. Rohit Grover was cross-examined by the complainant. In this cross-examination, he stated, inter alia, as under :
” After examining the complainant, I found that he suffered from Cataract in his both eyes. The right eye had more Cataract than the left eye. I advised surgery for the removal of Cataract in his right eye. The complainant was advised in the alternative two treatments, the one was the surgery for Cataract with stitches. I told the complainant that Phaco is the best available form of surgery regarding the treatment of Cataract. The difference between the two type of surgeries is that the Phaco surgery has the speedial recovery and is also safe than the other form of surgery for removal of Cataract. The document numbered C-2 was prepared in my office regarding the treatment of the complainant. The attached document with C-2 has also been prepared by me. The number of eyes which are mentioned in the attached documents were prescribed after examination of the complainant by me. I have seen the documents C-3, C-4 and C-5 which are dated 27.6.1997, 24.7.1997 and 27.5.1997 respectively and the same have been prepared by me in relation to the treatment of the complainant.
The complainant had come to me with the complainant that he was not comfortable with spectacles containing the number given by me and I after examining him changed the number and gave another prescription for the spectacles. The complainant again came to me with the grievance that he was still not comfortable with his eyes and wanted my opinion to consult some other eye surgeon and have second opinion. I suggested him the name of Dr. Dada, Head of the Department, All India Institute of Medical Sciences ( A.I.I.M.S. )…”
20. The complainant Mr. Yoginder Beri was cross-examined with reference to his affidavit dated 15.7.1999. The relevant cross-examination of the complainant may be referred to as under :
“…it is correct that I used spectacles even prior to this operation. The right eye was provided with only pain glasses and in the left eye, I possessed power glasses. During the process of operation, which was held on 27.5.1997, there might have been minor difficulty, otherwise, it was O.K. It is correct that after one week, I was provided with power glasses. I am unable to contradict that eye-ball of the right eye, in my case, is bigger as compared to the left eye.
I thereafter went to the All India Institute of Medical Sciences [ A.I.I.M.S.] and consulted Dr. V.K. Dada. Beside, I also went to Government Hospital, Sector 32, General Hospital, Sector 16 and P.G.I at Chandigarh. The doctors in the aforesaid Institute Verbally told me that the lens fixed by Dr. Grover, respondent No. 2 is wrong and that I should contact him once again. However, none of the doctors in the aforesaid Institute gave me written opinion in this regards. I have gone through para No. 4 of affidavit of Dr. Grover dated 23.7.1999 [ Annexure R/3 ] and it is correct.
It is correct that after the cataract operation, with the use of glasses, the vision was raised to 6/18. It is incorrect that before the operation, I could read even first three lines. It is correct that after the operation eye-sight of my right eye improved.
It is correct that at New Delhi, I also had a laser, treatment. It was done in A.I.I.M.S. I don’t know that it was not permissible at least for a period of three months after the cataract operation. I may add that it has no relevance with the merits of the case.”
The complainant Mr. Yoginder Beri in his affidavit reproduced the averments made in Para 10 and averred as point (a) about the adjustment by atleast one or two powers of the lens which is to be implanted in the eye by operation. This has referred to as having been stated by Dr. Rohit Grover to him. It has already been referred to above that the averments made in Para 10 have been made admitted in the reply of opposite party No. 1 and 2 and the opposite party No. 2 has in his affidavit also denied the same. In cross examination of opposite party No. 2 Dr. Rohit Grover a suggestion was put to him as under :
“…The lens to be replaced in normally taken out on or before the date of operation, before being inserted during the surgery. The type of that looking to the condition of the eye of the complainant, the lens of the strength of 8 or 9 ought to have been used but due to negligence or mistake, the lens of the power of 12 was inserted in his right eye.”
It appears that the word “denial” of the suggestion has been omitted to be mentioned. The statement in the cross-examination is to be read in the light of affidavit filed by the deponent i.e., Dr. Rohit Grover and also that stand taken by him in his reply. Viewed from this angel, this cannot be stated to be the admission of Dr. Rohit Grover at any rate and it was not even argued by the learned Counsel for the complainant.
21. A careful perusal of the statement of the complainant made in his cross-examination will got to show that he could not contradict the fact that eye ball of his right eye was bigger was as compared to the left eye. He also admitted as a fact that after the cataract operation, with the use of glasses, his vision was raised to 6/18. He also stated that it was correct that after the operation, eyesight of his right eye improved. The complainant Mr.Yoginder Beri, as per his statement made in cross-examination underwent laser treatment at AIIMS, New Delhi. He was not aware of the fact that it was not permissible at least for the period of three months after the cataract operation. Mr.Yoginder Beri, however, went on to state that it had no relevance with his case. It is also noteworthy that the complainant Mr. Yoginder Beri not only consulted Dr. Dada at AIIMS, New Delhi but also had consultation in various hospital such as Government Hospital, Sector 32, General Hospital, Sector 16 and P.G.I at Chandigarh. The complainant also admitted as a fact that none of the doctors to whom he consulted after his operation gave any opinion in writing about the operation conducted after his operation gave any opinion in writing about the operation conducted by Dr. Rohit Grover being deficient or that Dr. Rohit Grover was medically negligent in performing the operation and in the implantation of intra-ocular lens Now since that complainant himself could not contradict the fact that his eye ball of the right eye was bigger as compared to the left, the statement of Dr. Rohit Grover in regard to the problems faced by a person having such kind of defected size of eye ball becomes quite relevant. It cannot be said that the power of the lens implanted in the right eye of Mr. Yoginder Beri by Dr. Rohit Grover has not been done or proved by any reliable and cogent evidence of any specialist to be wrong and incorrect and thereby causing the problem said to be post-operative to the said eye of the complainant Mr. Yoginder Beri. At this place, it may be useful to refer though at the cost of repetition that the complainant had a definite improvement, even according to his own statement in the vision in his right eye and he was able to read the top four lines of the chart through he claimed in his cross-examination that even prior to operation, he could read top three lines which fact, he has not specialist.
Along with his reply, Dr. Rohit Grover has Sketches as Annexure R-1 of  Normal eye,  Myopia (Long eye) out of focus image,  Long Eye – Myopia with low power IOL Focused image of larger size,  Long eye with IOL and Minus Powered spectacle lens giving focused image of reduced size ( similar to normal ).
22. In support of his defence, Dr. Grover attached extracts from the book on IOL and Phacoemulsification Secrets ( Second Edition ) by Dr. V.K.Dada, Professor of Ophthalmology, Dr. Rejendra Prasad Centre of Ophthalmic Sciences, All India Institute of Medical Sciences, New Delhi, India Publishers (P) Ltd., B-23/23B, Ansari Road, Daryaganj, P.B.7193, New Delhi-11002, New Delhi.
23. Chapter 12 deals with power consideration in IOL and a reference is made to the following question and answers [ marked with red ink by opposite party No. 2 Dr. Rohit Grover ] :
Q : State some relevant factor concerning intraocular implant power ?
Ans : 1. Patient involved in near work for most of the day may be over corrected in implant to be without glasses for near. Minus spectacles should be given for distance
2. A preoperative myope should over corrected in implant to be with myopic glasses postoperatively.
3. Fellow eye with good vision with glasses demands a similar spectacle power in the operated eye to prevent intolerable anisometropia.
4. Fellow eye with gross diminution of vision is not considered in power calculation of impant.
5. It is better to impant + 19.00 D Standard powered implant if keratometry and axial length measurement facilities are not available because 80% of the implants are powered between + 18.00 to 20.00 D (Author’s observation).
6. Chances of having ametropia more than 2.00 D is 5% and more than 5.00 D is less than 1%.
24. Apart from it, extracts of book o n “Refraction and Clinical Optics” edited by Aran Safir, M.D., Director, Institute of Computer Science, Mount Sinai School of Medicine of the City, University of New York, New York City, has been annexed and reference has been made to the underlined portion under the heading “Intraocular Lens/Spectacle Combinations”, which is reproduced as under :
” Most patients with intraocular lenses do require additional spectacle correction (27, 28), and the net image magnification is the product of that induced by the intraocular lens and that of the spectacle. Since aniseikonia refers to a difference in the size of the retinal images of the two eyes, it is also necessary to consider what image magnification or minification is induced by the spectacle correction of the phakic eye…”
25. It will be relevant to bear in mind that after getting the right eye operated from opposite party No. 2 Dr. Rohit Grover, the complainant Mr. Yoginder Beri consulted other eye surgeons at different hospitals mentioned above at Chandigarh and also consulted Dr. Dada at A.I.I.M.S., New Delhi and also had laser treatment and other tests which facts were not in the knowledge of Dr. Rohit Grover and the consultations were not made with the consent of the opposite party No. 2. In other words, the complainant himself decided to have second and subsequent opinion and treatment after his operation aforesaid conducted by Dr. Rohit Grover. It was also significant to note that apart from the statement of the complainant. Mr. Yogendra Beri, there is no other medical evidence of any eye specialist to show that the diagnosis of the ailment in the eyes of the complainant made by the opposite party No. 2. Dr. Rohit Grover was incorrect and faulty and line of treatment prescirbed and given by the opposite party No. 2 was not the correct line of treatment. It cannot thus be held on the basis of the evidence on record that Dr. Rohit Grover on facts, was either negligent in performing the operation and providing treatment to the complainant Mr. Yoginder Beri or was deficient in any way in rendering the services hired by the complainant Mr. Yoginder Beri.
26. Now coming to the case law relied on by the learned Counsel for the respondent reported in III (1997) CPJ 41 (NC)=1997 (2) CPR 126, Kailash Kumar Sharma v. Dr. Hari Charan Mathur, decided by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi (for short hereinafter referred to as the National Commission), on29.5.1997. In this case, the complainant claiming compensation on the ground that loss of vision was because of improper implantation of I.O.L as per opinion of another doctor. The Hon’ble National Commission held that in absence of any evidence that loss of vision after operation for cartaract was due to negligence of doctor, the complainant’s claim for compensation against the doctor was liable to be dismissed. The complainant Kailash Kumar Sharma in the said case had claimed a compensation of Rs. 5 lacs besides a sum of Rs. 17,000/- has been towards the cost of operation. The opposite party i.e. Dr. Hari Charan Mathur while contesting the complaint case made the following submissions :
“(i) The complainant was under his treatment in the hospital since15.9.1980
(ii) The record in the hospital about the patient on 18.2.1991 showed that his left eye could not improved any further with glasses consequent to which he was advised a cataract operation of that eye.
(iii) The complainant was apprised of all surgical options and advantages and risks therein, on which he deliberated for over a fortnight and confirmed the choice of the operation on 6.3.1991; he signed a consent form whereby he agreed to have an intraocular lens implanted, of his free Will and accepted responsibility for all its benefits and ill-effects.
(iv) The opposite party has taken all due care in the conduct of the operation., and was not negligent in any way.
(v) There was always a small chance that the human body might reject the implant of foreign body.
(vi) Any allergies that may develop following reactions of such implantation can be countered by drugs which was the course adopted by the opposite party in the instant case and while the complainant was already responding to such a course.
(vii) He did not come for revaluation thus contributing to the damage of his eye.
(viii) The complainant had been visiting the opposite party for over eleven years because of the former’s faith in the latter.
(ix) The deficiency, if any, in the quality of the lens cannot be adjudged as the same is implanted in the complainant’s eye.”
27. It would appear from the judgment that the State Commission came to the conclusion that the complainant had failed to forward the burden of negligence on the opposite party and costs of Rs. 1,000/- was awarded to the complainant from the opposite party. The Hon’ble National Commission dealt with the submissions of the appellant in Para 4, which in our opinion is quite relevant to be quoted and it reads as under :
“4. Aggrieved by this order, the complainant has filed this appeal before us. The appellant due to his inability to attend the requested the Commission for exemption from personal appearance. In the appeal, the appellant has reiterated his submissions he had made before the State Commission. He has appointed out on that on his not getting his vision after the operation he got his eye examined by eye doctor who told him that he lost his full eye vision because the IOL, implant was not properly done. He has further pleaded that the State Commission has not appreciated his mental, suffering and instead imposed on him cost of Rs. 1000/-.The respondent has pointed out that the appelant’s allegation about improper implantation of IOL based on the opinion of another doctor was a new allegation and that there was no evidence to substantiate the same. We have carefully gone through the records and heard the Counsel for the respondent-opposite party. While the appelant has a real grievance about the loss of vision, he has not produced any document or other eveidence to establish the negligence or deficiency of service on the part of respondent. As observed by the State Commission, the complainant’s quantification of compensation for the alleged negligence has no basis . At the same time, the complaint cannot be dispensed with as frivolous. In the facts and circumstance of the case while we concur with the orders of the state to dismiss the complaint , we are inclined to set aside that part of the order of the state commission relating to set aside part of the commission relating to the appellant herein to pay costs of Rs 1000/- to the respondent opposite party. The appeal is disposed of as above .No costs.”
28. In our considered view , the case law cited by the learned counsel for the respondent is quite acceptable to the facts of the instance case.Resultantly , the complainant has failed to prove the deficiency in service on the part of the opposite party no2 Dr Rohit Grover of opposite party no1 -Grover Eye & ENT hospital and has further failed to show that Dr Grover was in anyway negligent in providing treatment prescribed by Dr Grover and consulted several other eye specialists at Chandigarh and also at AIIMS at NEw Delhi where he underwent laser treatment and other tests which according to Dr Grover he should not have taken soon after the operation for the cataract in his right eye..In other words the complainant himself is responsible to the condition of the eye , in which he is placed after the operation.Since the complaint fails against opposite party Nos 1 and 2 the question of any liability on part of opposite party no 3 – namely New India Assurance doesnot arise qand the complaint deserves to be dismissed against the opposite parties.The opposite party no3 is the insurance company which has insured the opposite party nos1&2.
Consequently the complaint lacks merit and is dismissed.However in the circumstances of the case the cost of the complaint shall be borne by the parties themselves.
Copies of the judgement be supplied to the parties free of charges.
Ms. Rohini Devi v. Dr. H.S. Chudavat & Anr.
2001 (3) CPR 172 (NC)
Consumer Protection Act, 1986 – Sections 12 and 17 – Medical Negligence – Complainant got cataract in right eye operated and Intra Ocular Lens was got implanted – Loss of eye vision – Claim for compensation – Defence plea that complainant failed to come for follow up treatment – Facts and material showing that complainant-appellant was not going for follow up treatment – No challenge to evidence of respondent doctor about procedure followed by him for IOL implantation by any expert evidence – It was not enough for complainant to prove negligence by fact that record IOL implantation had to be removed after 8 months – It was for appellant to prove negligence by examining expert witness – Appellant was rightly held to have failed to establish negligence on part of respondent. (Para 4)
Result : Appeal dismissed.
In a case of medical negligence it is for complainant to prove negligence by examinig expert witness.
B.K. Taimni, Member – This appeal arises out of the orders passed by the State Commission dismissing the complaint of the Appellant.
2. Brief facts necessary to appreciate the case are that the Appellant approached the Respondent for treatment of cataract in her right eye who after investigation operated her for cataract and implanted Intra Ocular Lens (I.O.L.) on 24-10-1991 so as to enable the appellant without the use of spectacles. The I.O.L. implantation was not successful. Second implantation of I.O.L. was carried out on 1-4-1991. Even this was not to the satisfaction of the appellant, hence they approached the General Hospital who on 7-1-1992 removed the I.O.L., Allegation is that on account of negligence, incompetence on the part of Respondent, the appellant has lost her vision of right eye on account of which the appellant approached the State Commission for awarding relief amounting to Rs. 9.5 lakh against the Respondent Doctor. The State Commission after hearing both the parties found no negligence on the part of the Respondent Doctor and dismissed the complaint. It is against this order that the Appellant/Complainant has filed the appeal.
3. It was argued by the learned Counsel for the Appellant Sh. Taneja that, even though two operations were carried out by the Respondent Doctor, it is at the time of second operation i.e. on 1-4-1991 that the Doctor was negligent resulting in the loss of vision in the right eye. The very fact that the two I.O.L. implantation did not help the patient and the fact that it had to be removed by the General Hospital itself is a proof of medical negligence on the part of the Respondent. He also argued that the main ground of defence of the Respondent that the appellant did not come up for follow up treatment is not sustained by the material on record. According to him after the discharge from the Respondent’s Hospital, the appellant visited for follow up on 19-4-1991 to 22-4-1991, and again on 29-4-1991, 1-5-1991, 6-5-1991, 16-5-1991 to 19-6-1991 and 29-6-1991 in support of which drew our attention to prescriptions. Bill of Respondent No. 1 that the appellant was given proper treatment i.e. operation for cataract and implantation of Intra Ocular Lens for the first time on 24-10-1991, which was successful to the extent that the appellant did not complaint till 22-3-1991 wherein she was advised to have a more expensive implantation of imported lens. This was done on 1-4-1991 and the appellant paid the charges on 1-5-1991, thereafter, the appellant neither came for follow up treatment nor did he hear from her till a legal notice served on him on 5-8-1991 after about four months of second I.O.L. The respondent has fully explained the procedure adopted by the Respondent while carrying out I.O.L. implantation. This procedure has not been assailed at all by any expert. Negligence is not proved against the Respondent Doctor. If there has been any negligence. It is on the part of the Appellant who did not observe the follow up treatment. It is true that Respondent is insured with the Respondent No.2 Company but since there has been no negligence, insurance company cannot be approached for any relief. It was argued by the learned Counsel for Respondent No. 2 that the total insurance cover enjoyed by the Respondent is for Rs. 7.5. lakhand for anyone event it is Rs. 3.5 lakh. They would be willing to honour their part of the commitment but within the terms of the Policy.
4. We have given our careful consideration to the arguments advanced by the learned Counsel for both the parties and material on record. Since there is no dispute on basic facts of the case, we will not like to deal withem at this stage. Main argument of the Appellant is that in view of material on record, it cannot be said that the appellant did not go for follow up treatment after the second implantation of I.O.L. We see on record that there are two set of papers prescription and medical bills on which the appellant relies and wishes us to believe that indeed the patient did present herself for follow up treatment. Prescriptions on follow up relate to the period from 19-4-1991 to 1-5-1991, after this there is no prescription on record. Then we have medical bills for the period 2-5-1991, 22-4-1991, 31-3-1991, 15-5-1991, 19-5-1991, where one can understand medical bills dated 22-4-1991 and 1-5-1991, there is no prescription for the medicine bills correlating to purchases of medicine on 16-5-1991 and 19-5-1991. The emerging status in no way supports the contention of the appellant that she was going for follow up treatment, leaving us with the impression that the appellant did not go for follow up treatment. If the patient/appellant did indeed lose vision immediately or as a result of second I.O.L. implantation on 1-4-1991 then what was the appellant doing till 3-8-1991 – a period of four months i.e. date of legal notice to the appellant. In these circumstances we are left with no choice but to agree with the contention of the Respondent Doctor that the appellant never showed up after 1-5-1991 when she came for settlement of the bill. We also see that in the affidavit of the Respondent, he has given in great deal the procedure followed by him for I.O.L. implantation . This has not been challenged based on any ‘expert’ evidence. It is not enough to state that after eight months of the second operation. I.O.L. implantation had to be removed, thus proving negligence of the Respondent. This could at best be a ground but certainly not a proof of negligence. It was for the appellant to prove negligence by examining expert witness challenging the procedure adopted by him, which a doctor claiming specialisation in this regard would not have done. It was for him to prove by evidence either by oral evidence or through a standard medical literature, either that the Doctor did what he ought to have done, resulting in a situation where the patient finds herself. In this case no such evidence has been led to contradict the evidence adduced by way of evidence, by the Respondent-2, thus, in our view the appellant has failed to prove any negligence on the part of Respondent-2.
5. In our view the Appellant has not been able to prove any point of fact or law for us to interfere in the reasoned order of the State Commission. The appeal is dismissed. No order on costs.