DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. __300_ _ OF ___2015
DATE OF FILING : 24.6.2015 DATE OF PASSING JUDGEMENT: 6 .2.2019
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : Mr. Tarun Awon, son of late Abhiram Chandra Awon of 25, Barui Para Lane, P.O Alambazar, P.S Baranagar, Kolkata-35.
O.P/O.Ps : 1. Dr. Swakshyar Saumya Pal, at Sankara Nethralaya (Kolkata) , 147, Mukundapur, EM By Pass, P.S Purba Jadavpur, Kolkata – 99.
2. Sankara Nethralaya (Kolkata) , 147, Mukundapur, EM By Pass, P.S Purba Jadavpur, Kolkata – 99.
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J U D G M E N T
Launching a vehement attack with the weapon of medical negligence and deficiency in service against the operating doctor (O.P-1) and the hospital (O.P-2) , the complainant has filed the instant case under section 12, C.P Act, 1986.
The facts leading to the filing of the instant case may be epitomized as follows.
The complainant , a 51 year old man, has been suffering from eye problem relating to ratinal detachment of right eye. His left eye sight is also not normal. For treatment of the problem of right eye, he had been under constant treatment since 7.6.2013 to 22.4.2014 in O.p-2 hospital under Dr. Swakshyar Saumya Pal i.e O.P-1. O.P-1 advised him to undergo an operation of right eye; he also gave assurance to the complainant that after the operation, his right eye will be completely cured. Accordingly, operation was conducted by O.P-1 on the complainant on 24.6.2013. But unfortunately O.p-1 himself did not attend the operation , as goes the allegation of the complainant and the operation was performed by a Junior Doctor working under him. After the operation, there was no sign of improvement in the right eye sight of the complainant. So, as per advice of O.P-1, he was again operated in his right eye on 5.9.2013. O.p-1 himself conducted this operation. Despite this operation also, there was no improvement felt by the complainant in his right eye. No lens was implanted by O.P-1 in the right eye of the complainant. Eye sight of the complainant gradually started to deteriorate and, therefore, he was expelled from his service. He cannot see well now and his future is likely to be marred for negligent operation of O.P-1. That apart, O.P-2 i.e the hospital received charge from the complainant for supplying a C.D ( Circular Disc) of the operation table. But that CD was not also given to the complainant. Therefore, alleging medical negligence on the part of both the O.Ps the complainant has filed the instant case, praying for issuing an order directing the O.Ps to refund Rs.63000/- paid to O.P-2 by him, Rs.5000/- also paid to O.P-2 for consultation and diagnostic tests and Rs.19 lacs as compensation on different counts. Hence, this case.
O.P-2 has been contesting the case by filing written statement ,wherein it is contended inter alia that the complainant was operated in the hospital for problem of right eye and the said operation was conducted by O.P-1 who is only doctor to do the vitrectomy+belt buckle+ membrane peeling+endolaser and silicone oil injection and he performed all such operations successfully on 24.6.2013. Patient was examined at regular interval in post operative period. On 17.7.2013, when patient came for post operative check up, he for the first time complained of poor vision of the right eye. On 5.9.2013 the patient underwent membrane peeling+endolaser and silicone oil injection with phacoemulsification with intraocular lens implantation . Patient was told that the amount of visual recovery even after such operation would be uncertain and unpredictable. No request was ever made by the complainant for CD of the operation table and it was after the expiry of 7 months of discharge, he demanded for C.D. The complainant was suffering from low visibility of his left eye also. There is no negligence in the treatment of the patient; the allegation of medical negligence is unfounded and, therefore, the case deserves to be dismissed in limini.
Written statement is also filed by the O.P-1 i.e the operating Doctor . But the contents of his written statement is almost same as that of the written statement filed by the O.P-2.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Are the O.Ps guilty of medical negligence and consequently deficiency in service as alleged by the complainant ?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
Evidence on affidavit is filed by the complainant. Similarly, evidence on affidavit is also filed by the O.Ps and the same are kept in the record after consideration. Questionnaires, replies and BNAs filed by the parties are also kept in the record after consideration.
DECISION WITH REASONS
Point no.1 & 2 :
Already heard the submissions of Ld. Lawyers appearing for the parties. Perused the petition of complaint, written version of O.P and also the other materials on record. Considered all these.
The basic formality of an operation requires that the Surgeon conducting the operation upon a patient must take real and valid consent form the patient before attending the patient for operation. This guideline has been given by the Hon’ble Apex Court in the case of Samira Kohli Vs. Prabha Manchanda, reported in AIR 2008 SC, 1385 . It has been laid down therein that the consent taken by the physician before commencing treatment/surgery must be real and valid. Consent is real and valid consent when it is based on “Adequate Information “regarding the nature of the treatment procedure. It has also been laid down therein that “Adequate Information “shall mean the following:-
- Nature and procedure of the treatment, its purpose, benefits and effect.
- Alternatives, if any, available.
- A outline of the substantial risk , and
- Adverse consequences of refusing treatment.
All these informations as referred to above are to be given to the patient by the Doctor before commencement of treatment/surgery and upon getting this information, if the patient gives his consent to the doctor for treatment/surgery, then the said consent is a real and valid consent. The purpose of giving such information to the patient is that the patient must be given an opportunity to exercise his right to be informed of the risk involved with the treatment/surgery.
Coming to the facts of the instant case, it is found that the O.Ps have not supplied any information as referred to above to the patient while taking his consent for the surgery. The O.P hospital has stated in his written statement and also in its evidence that consent was taken from the patient. A copy of consent form has also been filed on record in respect of the operation conducted on the complainant on 24.6.2013. No consent was taken from the patient i.e the complainant for operation conducted on him on 5.9.2013, because the hospital has not been able to place on record any kind of consent form.
Upon scrutiny of the consent form , which was taken for the operation dated 24.6.2013, it is found that it is a printed form and the signature of the complainant has merely been collected upon it. Can it be said to be a real and valid consent of the complainant? Have it supplied the requisite information as mentioned above to the complainant? No information whatsoever has been supplied to the complainant. Consent must be a real and valid one. Patient has a right to be informed about the risk involved with the treatment/surgery and that right can be validly exercised only, when the above mentioned information are supplied to him. The Doctor will have to supply the above information to the patient in his (patient’s) language ,because unless the information is supplied to the patient in his language ,it is not possible for the patient to exercise his free consent. The consent form i.e annexure A as placed on record by the O.P hospital merely betrays that it is nothing but a clerical exercise. No information whatsoever as mentioned above has been supplied to the patient i.e the complainant. This consent form (Annexure A) is perfunctorily taken from the complainant. It can never be said to be evidence of the fact that valid consent was taken from the complainant, having given him his right to be informed about the risk involved with the operation. The consent is taken in slip- shod manner by the hospital and, therefore, it can never be said even for a moment that proper and valid consent was taken from the complainant by the hospital or the operating doctor i.e O.P-1 before commencement of operation upon the complainant. The hospital authority and the operating doctor have flouted the guidelines of the Hon’ble Apex court; they have acted in lackadaisical manner in taking consent of the complainant before commencement of the operation. So, here lies medical negligence on the part of both the O.Ps.
Next, if we go deeper into the materials placed on record of the case, it is found that the hospital authority and the operating doctor have not only defied the guidelines of the Hon’ble Supreme Court, but they have also practised fraud upon the complainant. We find no language to malign such irreprehensible act of them. What is that act? Both the O.Ps have stated in their written objection that on the second day of operation i.e 5.9.2013, lens was implanted in the right eye of the patient. The same thing is also stated by them in the evidence led by them. The relevant portion of the evidence of O.p-1 runs thus ,
“I examined the operated eye of the patient and he was noted inferior recurrent retinal detachment with multiple inferior hole for which the patient was advised membrane peeling+endolaser and silicone oil injection with phacoemulsification with intraocular lens implantation which was done on 5th September, 2013(Para-8)”.
But the picture is otherwise. Upon scrutiny, it is found that a false statement has been given by both the O.Ps in their pleadings and also in their evidence. The fact is that no lens was implanted in the right eye of the complainant by O.P-1. O.P-1 in his reply to question no.13 of the complainant has confessed that no lens has been put and that they do not put any lens in complex retinal detachment. That the lens was not implanted in the right eye of the complainant is also established from expert opinion. This Forum has sought for expert opinion from the NRS Medical College and Hospital and that opinion has been sent to the Forum by the Professor Samir Kr. Bandopadhyay (HOD) , Department of Ophthalmology , NRS Medical College and Hospital vide Memo no.Eye/53/18 dt. 1.2.2018 . The opinion report is kept in the record. The relevant portion of the said report is reproduced in its exact verbatim as follows:-
“…………………………………………………………… In a case of total retinal detachment even after successful operation, 100% visual recovery does not occur. In these cases, total visual loss can be prevented by a successful operation (OT) and the matter is generally explained to the patient before OT as was done in this case also.
After OT on 5.9.2013, the condition of right eye of Tarun Awon is such that after examination, it can be said that OT was done correctly and successfully with an outcome of partial gain in vision. It is proved by the fact the retina in the right eye is on and attached all throughout till 18.1.2018 (proved by examination and investigations done by retinal specialist using different ophthalmic instrument). Regarding phacoemulsification in right eye: it is found that phacoemulsification was done in right eye without intraocular lens implantation (the procedure usually followed in retinal surgery for total retinal detachment).
Regarding further improvement in right eye, it can be said that another future operation such as removal of after cataract and removal of silicon oil from vitreous cavity will improve vision a little more but the operation is of great risk where further detachment and shrinkage of eyeball is a possibility”.
The expert opinion as referred to above goes a long way to prove unhesitatingly that no intraocular lens was implanted in the right eye of the complainant on 5.9.2013 by the operating doctor i.e O.P-1. But the operating doctor and the hospital have both indulged in an attempt to convince the Forum through their averment in the pleadings and their statement in the evidence that such intraocular lens was implanted in the right eye of the complainant. This incident alone goes to prove how negligent the operating doctor was in performing operation upon the complainant. This incident alone goes to prove that how careless and adamant the operating doctor is. He does not feel even as a vestige of compunction to plead falsely before the Court of Law. Be that as it may, we cannot but say that the operating doctor and his hospital have tendency to mislead all including the Court of Law also and this is nothing but medical negligence on their part and also their deficiency in service.
Now, about the negligence of O.P-1 in so far as the operation of the complainant is concerned. It has been stated by the complainant in his pleadings and also in his evidence that the operation was not performed by the O.P-1 himself on him on 24.6.2013. O.P-1 and the hospital have denied this charge. But we have to consider the circumstances to get answer to the query made on behalf of the complainant. There is no direct materials available on record to prove whether O.P-1 attended the operation on the complainant on 24.6.2013. But, there are circumstances which go to prove how negligently the operation was done on the complainant that day. Complainant was first operated in his right eye on 24.6.2013 and thereafter he was again operated in the very right eye on 5.9.2013. The O.Ps have tried to convince us that the operation on 24.6.2013 was successful. But our question is that :- if that was successful what was the circumstances that necessitated a second operation of that right eye of the complainant within a short period of two months? There is no explanation provided by the O.Ps. Inability to furnish any explanation of this query indicates and indicates only that the first operation was done negligently and, therefore, the second operation was done free of cost by the hospital and the operating doctor. It is not disputed that the second operation was done free of cost by the hospital. During discharge of the complainant from the hospital after the second operation on 5.9.2013, a discharge summary was issued by the hospital to the complainant on 6.9.2013. it is mentioned therein in diagnosis column as thus , “Right Eye: Profound Visual Impairment”. Now it is found that after the first operation on 24.6.2013, the complainant began to suffer from profound visual impairment. Why this deterioration? We expect that the operation must be to the help of the patient; we expect that the operation must help the patient to have amelioration of his suffering. This is the general rule. In this case, instead of getting amelioration, the suffering of the complainant got enhanced – he fell in the grip of profound visual impairment. This condition of the patient after the first operation speaks of itself that the first operation was negligently done by the O.Ps, as a result of which there was necessity of doing the second operation to prevent profound visual impairment of the complainant, which resulted from the first operation of his right eye on 24.6.2013. The theory of res-ipsa-loquitor comes into play in this case and applying this theory we feel not a least hesitation to say that due care was not taken by the O.P-1 while performing the operation on the complainant on 24.6.2013. The O.Ps are ,therefore, held to be guilty of gross medical negligence.
Further, the acceptable method of therapy is not adopted in the operation as per opinion of Expert. The usually followed procedure in retinal surgery for total retinal detachment is implantation of intra-ocular lens. This usual method has been given a go-by, although it is averred by O.Ps that lens implantation was done. No medical authority has been cited to support the exceptional act of O.P-1. So, the act of not implanting lens in the eye of the complainant is also a gross negligence .
To sum up , fraud is practised not only upon the complainant ,but upon the Forum also by the O.Ps. Adequate Information is not supplied to the complainant for taking his consent before the commencement of the operation. No valid consent of the complainant was at all taken before operation on 5.9.2013. Consent taken from the complainant can never be said to be a valid and real consent as it is not based on adequate information. Complainant has been deprived of his right to be informed of the risk involved with the operation. Conduct of second operation within a short span of time obviously proves that the first operation was at fault and that the first operation was not done with due care. Non-implantation of intra ocular lens is also an act of gross medical negligence. Thus, the complainant has been able to prove the medical negligence as well as deficiency in service on the part of the O.Ps and, therefore, he is entitled to get the relief which is given as hereunder.
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is allowed on contest against the O.Ps with a cost of Rs.10,000/-.
The O.Ps , who will remain jointly and severally liable for making payment to the complainant, are directed to refund Rs.68000/- ,which the O.P-2 received from the complainant as charges for operation, consultation and testing, and also to pay a sum of Rs.7 lacs ( Rs.7,00,000/-) as compensation for loss, harassment and mental agony suffered by the complainant within a month of this order, failing which, the above amounts i.e the refund amount as well as compensation amount will bear interest @10% p.a till full realization thereof.
Let a free copy of this order be given to the parties concerned at once.
President
I / We agree
Member Member
Dictated and corrected by me
President
