DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

     SOUTH 24 – PARGANAS,

    AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 144

              C.C. CASE NO. 07 OF 2016

DATE OF FILING: 25.01.2016                 DATE OF PASSING JUDGEMENT: 20.08.2019   

Present                      :   President       :   Ananta Kumar Kapri

                                        Member         :   Jhunu Prasad

COMPLAINANT              :  Paresh Marik, S/O – Late Kalipada Marik, Village – Amtala Adarshapally, Kanyanagar, P.S. – Bishnupur, Dist. - South 24 Parganas, Pin – 743398, West Bengal. 

• VERSUS   -

O.P/O.Ps                         :  1. General Secretary, Vivekananda Mission Ashram, Netra Nirmoy Niketan, Vill. + P.O. – Chandi (Near Amtala), Dist. – South 24 Parganas, P.S. – Bishnupur, Pin – 743503.

                                               2. Dr. Asim Kumar Sil, Head of Dept. of Ophthalmology, Vivekananda Mission Ashram, Netra Nirmoy Niketan, Vill. + P.O. – Chandi (Near Amtala), Dist. – South 24 Parganas, P.S. – Bishnupur, Pin – 743503, West Bengal.

_______________________________________________________________

JUDGMENT

Sri Ananta Kumar Kapri, President

            With allegation of medical negligence as well as deficiency in service, the complainant has filed the instant case under section 12, CP Act, 1986 against the O.P. nursing home and the operating doctor.

The epitome of the facts leading to the filing of the instant case runs as follows.

            Complainant was at work on 16.01.2015 in his garage and at that time a foreign body spiked into his left eye causing severe irritation. He was taken to O.P. 1 nursing home that very day. His name was registered there on payment of Rs. 50 as registration fee. O.P. 2 examined the complainant and advised immediate operation for removal of foreign body and repair of rupture. Operation was conducted upon the complainant by O.P. no. 2. He also paid Rs. 1,200/- to carry out various tests after operation was over. Patient was still feeling a kind of irritation in his left eye. O.P. 2 convinced the complainant that the operation was successful and the irritation would subside in course of time. The patient was discharged from the nursing home on 16.01.2015l; but, pain did not subside; it continued to increase gradually and severely for which the complainant had to visit the nursing home again on 19.01.2015. This time, USG Scan was done and several doctors examined the patient. They disclosed among themselves that the foreign body was not removed from the left eye of the complainant as a result of which septic condition developed causing permanent impairment of vision. The nursing home could not help the complainant in anyway; it released him at 4:45 p.m. and referred him to Regional Institute of Ophthalmology at Kolkata for further treatment. There the doctor examined the complainant, conducted various tests upon him and opined that his left eye was completely damaged and the said eye required to be removed. According to those doctors, foreign body was not removed from the eye of the complainant and this resulted in sepsis. Left eye of the complainant was accordingly removed in that hospital i.e. Regional Institute of Ophthalmology at Kolkata. Now the complainant prays for compensation of Rs. 10,00,000/- for loss of one eye due to medical negligence and deficiency in service on the part of O.P. 2 and also for a further sum of Rs. 5,00,000/- for harassment and mental agony caused to him by the O.P.s. Hence, this case.

            The O.P.s have been contesting the case by filing W/V wherein it is contended inter-alia that the case is not maintainable in law against the O.P. nursing home, as it is a charitable and philanthropic organization run by monks on the banner of Vivekananda Mission Ashram, P.O.- Chaitanyapur, P.S. – Haldia, Dist. – Purba Medinipur. On 16.01.2015, the complainant visited the nursing home with large corneal rupture and iris prolapsus in left eye with dirty infectious foreign article in said eye. Considering prognosis of the patient, emergent operation for rupture repairing was done; rupture was repaired; unhealthy iris abscised and foreign article lying on upper layer of the eye was removed. But, prior to operation the complainant was informed that USG was to be done for detecting presence of foreign body and that the performed operation was the first step of proper treatment in such grave situation. Having known it, consent form was signed by the complainant and his son. Operation was done successfully and the patient was released from the nursing home on the same day. Thereafter, the complainant again came to the nursing home with severe pain in his left eye; USG was done and complexity was seen developed in his eye. So, he was referred to Regional Institute of Ophthalmology at Kolkata (R.I.O) for better management. There is no deficiency in service nor any medical negligence as alleged on the part of the O.P.s and the case should therefore be dismissed in limini with cost.          

            Upon the averments of the parties, the following points are formulated for consideration.

                                                   POINTS FOR CONSIDERATION

1. Have the O.P.s committed medical negligence as well as deficiency in service in rendering treatment to the complainant?
2. Is the complainant entitled to get relief or reliefs as claimed?

     EVIDENCE OF THE PARTIES    

Both the parties have led their evidence on affidavit and these are kept in record. BNAs filed by the parties are also kept in record after consideration.

                                          DECISION WITH REASONS

Point no. 1 and 2 :

            Ld. Lawyer appearing for the complainant has contended that the injury suffered by the complainant in his left eye was grave one and this is also admitted by the O.P.s in written statement. In case of such injury, it is mandatory to take USG of the injured eye in order to detect the foreign body lodged in the eye. But, no USG was done by the O.P.s; patient was allowed to walk to his house after the operation and no advice was given to him by the O.P.s for going to any other hospital. So, according to the submission made on behalf of the complainant, the O.P.s have committed gross negligence in the treatment and care of the patient i.e. the complainant and for their negligence the complainant has lost his left eye completely. Ld. Lawyer appearing for the O.P.s has contended that the O.P. 2 doctor has committed no negligence. According to him, the first step to be taken by the doctor in the case of such kind is to repair the wound. There was corneal rupture sustained by the complainant in his left eye and the O.P. 2 only repaired the said corneal rupture and thereafter he referred the patient to Regional Institute of Ophthalmology at Kolkata (R.I.O) for better management, when he detected from USG report dated 19.01.2015 that there was a foreign body lodged in the eye of the complainant. O.P. 2 has done what an eye surgeon should have done in accordance with standard medical guidelines and no deficiency in service or any kind of medical negligence has been caused by him.

            In the context of submission and counter submission as pointed out above, it is to be seen whether the O.P. 2 has rendered proper treatment to the complainant in accordance with standard medical guidelines. The doctors must act with reasonable degree of skill and knowledge and must exercise a reasonable degree of care. It goes undisputed that a foreign body spiked into the left eye of the complainant when he was at work in a motor garage. The complainant is motor mechanic by profession. Within a few moments of such incident, he was brought to the O.P. nursing home and there O.P. 2 took up his treatment. O.P. 2 repaired corneal rupture and discharged him from the hospital on the very day of operation i.e. on 16.01.2015. Thereafter, on 19.01.2015 the complainant again came back to the O.P. nursing home with severe pain and other complications. It was at that time, USG of his left eye was done and it was detected by O.P. 2 that a foreign body was lodged in the inner chamber of the left eye of the complainant. He then referred the patient to Regional Institute of Ophthalmology at Kolkata (R.I.O) for better management. All these are facts which go undisputed.

            From the undisputed fact as pointed out above, we have to see whether O.P. 2 i.e. the operating doctor has committed any kind of negligence or mistake in so far as treatment and care of the patient is concerned. We have got a medical literature at our hand and from this literature it is known that the operating eye surgeon should take some kind of care / management in such type of cases, i.e., 

1. Pre-operative management, and 2) Post-operative management

The relevant portion of the text of the said medical literature is reproduced herein below –

“Management

Preoperative management

If surgical repair is required, the timing of the operation is crucial. Although studies have not documented any disadvantage in delaying the repair of an open globe for up to 36 hours, intervention ideally should occur as soon as possible. Prompt repair can help minimize numerous complications, including

• Pain
• Prolapse of intraocular structures
• Suprachoroidal hemorrhage
• Microbial contamination of the wound
• Proliferation of the microbes projected into the eye
• Migration of epithelium into the wound
• Intraocular inflammation
• Lens opacity

The following temporizing measures can be taken during the preoperative period:

• Apply a protective shield.
• Avoid administering topical medications or other interventions that require prying open the eyelids.
•  Keep the patient on NPO status.
• Provide appropriate mediations for sedation and pain control, as well as antiemetic.
• Initiate intravenous antibiotics.
• Provide tetanus prophylaxis.
• Seek anesthesia consultation.

Injuries associated with soil contamination and/or retained intraocular foreign bodies require attention to the risk of Bacillus endophthalmitis. Because this organism can destroy the eye within 24 hours, intravenous and/or intravitreal therapy with an antibiotic effective against Bacillus species, usually fluoroquinolones (such as levofloxacin, moxifloxacin, gatifloxacin), clindamycin, or vancomycin should be considered. Surgical repair should be undertaken with minimal delay in cases at risk for contamination with this organism.

Postoperative management

After primary repair of penetrating anterior segment trauma, therapy is directed at preventing infection, suppressing inflammation, controlling IOP, and relieving pain. Systemic antibiotics (moxifloxacin 400 mg PO daily) are usually continued for 3-5 days, and topical antibiotics are generally used for about 7 days or until epithelial closure of the ocular surface is complete. Topical corticosteroids and cycloplegics are slowly tapered, depending on the degree of inflammation. A fibrinous response in the anterior chamber may respond well to a short course of systemic prednisone. (Vide Extract on “External Digit and Cornea” published by “American Academy of Ophthalmology”, chapter – 13, page – 374, 375 collected from website.)

            From the standard guidelines available from medical literature as referred to above, an eye surgeon should take, inter-alia, the following measures during the pre-operative period.

1. Provide appropriate meditation for sedation and pain control, as well as anti-emetics.
2. Initiate intravenous antibiotic.
3. Provide tetanus prophylaxis

He should also take care of the risk of bacillus endophthalnmitis, because this organism can destroy the eye within 24 hours. To control this bacillus intravenous and/or introverted therapy with an antibiotic effective against bacillus is required and usually fluoroquinolones such as levofloxacin, moxifloxacin, gatifloxacin etc are considered. Coming to the facts of the instant case, it is found that O.P. 2 did not act in accordance with standard medical guidelines. He did not prescribe any medicine for controlling the pain the complainant suffered before the operation in O.P. nursing home. The doctor did not prescribe any antibiotics to control infection/inflammation of the eye of the complainant. Even he did not prescribe anything to prevent tetanus infection. The treatment papers which are marked annexure A and B to the evidence of the O.P.s have been produced on record and it is not available from those papers that O.P. 2 took all these pre-operative management before proceeding to conduct operation on the left eye of the complainant. It is gathered from those documents that O.P. 2 took a hasty decision to repair corneal rupture without taking proper care of the patient. From the medical literature, we do get that in case of intraocular foreign bodies, the organism can destroy the eye within 24 hours and therefore intravenous and/or intravitreal therapy with an antibiotic effective against bacillus species should have been applied. But O.P. 2 doctor did not take any care of it. He straightway took the patient to operation theatre and conducted operation. He acted with utter disregard of all standard medical guidelines; appropriate pre-operative management was not resorted to by him while proceeding to repair corneal rupture of the complainant. Here lies gross negligence on the part of the eye surgeon i.e. O.P. 2 and this negligence on his part has ultimately led to the total loss of left eye vision of the complainant.

Now about post-operative management. Post-operative management has not also been properly done by O.P. 2 and therefore septic condition has developed in the eye of the complainant leading to total loss of his left eye sight. O.P. 2 should have adopted proper therapy to prevent infection, suppress inflammation and relieve pain. To achieve this goal, he should have prescribed systemic antibiotic such as Moxifloxacin 400mg (PO daily) and this medicine is usually continued for 3-5 days. That apart, topical antibiotics are also generally used for about 7 days. But, no such medicine has been prescribed by O.P. 2 in conformity with standard medical guideline as referred to above. This is nothing but gross negligence on the part of O.P. 2 and this negligence on his part has contributed to the loss of left eye sight of the complainant. O.P. 2 did not take any step to prevent infection and inflammation of left eye of the complainant immediately after operation conducted by him and therefore disaster came down heavily upon the complainant.

Opinion of expert body was sought for in this case and expert body has sent its opinion on suggestive questions submitted by both the parties. Question no. 11 of complainant’s suggestion appears to be very much important and and the same is reproduced hereinbelow.

Question no. 11. – Whether on complaint of such as stated by a patient can he be released post-surgery without performing any USG before discharge to conclusively hold that no foreign particle remains.

Question no. 14. - Whether the discharge advice to caution the patient’s physical movement post-surgery and on discharge is essential or not.

Reply to the above suggested questions of the complainant is given by the expert body as follows –

B. Answers to the suggestive issues on behalf of the complainant.

…………………………………………………………………………………………………………………

11. No.

14. Yes, it is advisable to caution the patient to restrict movement after discharge.

In the instant case, the patient has been released by O.P. 2 after surgery of his left eye without making any attempt to detect the location of any foreign body, if any, with the help of USG. After the repair of corneal rupture O.P. 2 should have subjected the complainant to USG for detecting location of foreign body, if any. Such kind of release of the patient is not proper and it has been so stated by the expert opinion also. Further. O.P. 2 should have given a caution to the complainant about his physical moment in post-surgery period and it has been pointed by the expert that it is advisable to caution the patient to restrict movement after discharge. But, no such caution has also been sounded by O.P. 2 against the complainant. Copy of surgery record vide annexure D to the evidence of the O.P.s, has been placed on record and it is seen therefrom that the complainant was discharged from O.P. 1 nursing home on the very date of operation i.e. on 16.01.2015. There is nothing mentioned in the surgery record that the patient was cautioned against his movement. Release of the patient without taking USG and without giving any note of caution to him regarding his restricted movement are glaring instance of carelessness and negligence on the part of O.P. no. 2. All these negligence have cumulatively led to loss of left eye sight of the complainant.

Proper consent is also seen to have been not taken by the O.P.s when operation was conducted upon the complainant. A copy of consent form is placed on record by the O.P.s, vide annexure C, page 13 to the evidence of the O.P. On perusal of consent form i.e. annexure C, it is nowhere found therein that any information much less any material information was given to the complainant before his operation. O.P. 2 should have informed the complainant that the operation will consist of 2 stages and that he was only performing corneal rupture repair which was first stage only. He should have informed the complainant that the second operation was to be performed after 10 or 14 days of the first operation. Had these been informed to the complainant; complainant would have been able to give a valid consent to his operation. In absence of all these information, it cannot be said that informed consent was given by the complainant to O.P. no. 2 before his operation.

Upon what have been discussed above, it appears that O.P. 2 is guilty of gross negligence as well as deficiency in service. O.P. no. 1 being the nursing home is also held vicariously liable for such negligence and deficiency in service caused by O.P. no. 2 i.e. the operating doctor. The complainant has lost his left eye. Such a loss cannot be measured in terms of money. Be that as it may, the complainant is deemed entitled to get compensation and the order is passed accordingly as hereunder.

            In the result, the case succeeds.

            Hence,

 ORDERED

            That the complaint case be and the same is decreed on contest against the O.P.s with a cost of Rs. 10,000/-.

            The O.P.s i.e. O.P. no.1 and 2 who will remain jointly and severally liable to the complainant, are directed to pay Rs. 5,00,000/- as compensation to the complainant for loss sustained by him, Rs. 1,00,000/- as compensation for harassment and mental agony caused, to the complainant, within a month of this order failing which the compensation amount of Rs. 6,00,000/- (Rs. 5,00,000/- + Rs. 1,00,000/-) and the cost amount (Rs. 10,000/-) will bear interest at the rate of 10 % p.a. till full realization thereof. At the same time, the complainant is directed to pay Rs. 50,000/- to legal aid account of this forum, when the compensation amount is realized by him from the O.P.s.

Register-in-charge is directed to supply a free certified copy of this judgment at once to the parties concerned.

I/We agree                                                                   Member                            President

                        Directed and corrected by me

                                                               President