DR. SADHNA SHANKER, MEMBER

1.       This appeal has been filed under section 19 of the Consumer Protection Act, 1986 (hereinafter referred to as the ‘Act’) in challenge to the Order dated 17.09.2012 of the State Commission in complaint no. 04 of 2006, whereby the complaint of the complainant was dismissed.

2.       Heard the learned counsel for the appellant (hereinafter referred to as the ‘complainant’) and the learned counsel for the respondents No. 1 and 2 (hereinafter referred to as the ‘hospital’ and ‘doctor’) and perused the record including the State Commission’s impugned Order dated 17.09.2012 and the memorandum of appeal.

No one appears for the respondents no. 3 and no. 4.

3.      The brief facts of the case are that on 11.02.2005, the complainant went to the hospital to get his eyes examined and the doctor, after examination of the report, concluded that there is a retinal detachment and advised the complainant to get his eye operated urgently. However, the vision in the eye was found 6/9. On 12.02.2005, the operation was conducted and in the entire process, Dr. Raj Kumar Sharma remained present with the doctor. It is alleged that on 13.02.2005 the doctor without examining the eye had left for Chennai and Dr. Umeshji Hiramal discharged the complainant with the instruction that he must come on 14.02.2005 for follow up and check up. Again on 14.02.2005, the complainant visited the hospital and he was given some medicines and instructions. The left eye was checked on 15.02.2005 and 16.02.2005 and some more tests were done on 17.02.2005 and 18.02.2005 and the complainant was advised to take complete bed rest keeping the head on 45 degree angle. Not satisfied with the said treatment, the complainant went to Ahmedabad on 20.02.2005 where some medicines were given and the complainant was required to come after 15 days. Again, the complainant went to Ahmedabad on 11.03.2005 and remained there till 28.03.2005. Meanwhile the left eye was operated upon at Ahmedabad as there was very little hope for any progress but the complainant lost his vision in the left eye. It is alleged that the loss occurred as neither the complainant nor family members were explained the situation and the doctor either could not correctly do the diagnosis of the complainant or after the diagnosis could not decide the correct line of treatment.

4.    Alleging medical negligence on the part of the hospital and the doctor, Dr. Umeshji Hiramal and Dr. Raj Kumar Sharma, the complainant filed a complaint before the State Commission and prayed for compensation of Rs. 51,55,722/- along with interest at the rate of 18% per annum from the date of notice dated 21/22.11.2005 and litigation costs of Rs.11,000/-.

5.    The hospital and the doctor, Dr. Umeshji Hiramal and Dr. Raj Kumar Sharma have contested the complaint by filing reply. It is stated that the complainant visited the hospital with the complaint of loss of peripheral vision in the left eye and had not visited for check-up of his eyes and the complainant had inferior Retinal Detachment as on 11.02.2005 as confirmed by the record of the hospital. It is further stated that the complainant was a known case of high myopia with family history of high myopia and it is a known medical fact that high myopia persons are susceptible to certain diseases of eye like cataract, Glaucoma and Retinal Detachment. This is clear from the fact that the complainant had sudden visual loss in the right eye on 11.05.1999 and floaters (back spots in front of the eye that keep on moving) in the left eye. It is further stated that the complainant was earlier examined at Eye Hospital at Ahmedabad on 3.7.1999 with the vision in the right eye being 6/60 and in the left eye being 6/12. It is further stated that after being advised for review of left eye on 13.10.2000, the complainant failed to get his left eye reviewed after one year or at any point of time thereafter till July, 2004. On 24.11.2004, on examination, at their hospital the complainant was found to have 6/12 partial vision without glasses with best corrected vision after putting on the glasses being 6/9 for distance and N6 for near. It is further stated that the complainant had lost his vision in both the eyes due to not taking proper care and by not following the advise given by the doctors at Ahmedabad and there is no negligence on their part and the complaint is liable to be dismissed.

6.    The State Commission, vide its Order dated 17.09.2012, dismissed the complaint.

7.    Aggrieved by the Order dated 17.09.2012, the complainant had filed an appeal before this Commission.

8.    Learned counsel for the complainant argued that on examination on 17.03.2005, fungus and bacteria was found in the left eye and the plomb inserted was taken out and sent for culture in laboratory and on report, the plomb was found infected due to which the complainant lost vision in the left eye. He has further argued that there were contradictions in the reports dated 11.02.2015 and the report dated 12.02.2015. The report dated 11.02.2005 mentions that “history of hazy vision” and the “retinal periphery” was normal while the report dated 12.02.2005 mentions that “came with sudden decrease in vision” and that the “retinal periphery” was normal was not mentioned in the report dated 12.02.2005 and the different versions given in the reports shows medical negligence. He further argued that if proper advise had been given by the doctors to the complainant, he could have consulted another senior expert to save his vision in the left eye.  He further submits that if there was any mistake regarding the date in the report dated 11.02.2005, why the same has not been rectified or corrected at the appropriate time.

9.      Learned counsel for the hospital and the doctor has argued that the complainant had undergone Cataract Extraction with Intra Ocular Lens Implanatioin in his right eye way back in 1998 and had a history of high myopia considered to be highly susceptible to certain diseases of the eye like cataract, glaucoma and retinal detachment. He further argued that the complainant had undergone Cryo Therapy in the left eye, a procedure to stave off retinal breaks, holes and tears that lead to retinal detachment. He furthermore argued that only after explaining the risks involved, the doctor and Dr. Raj Kumar Sharma performed a three Port Retinal Detachment Surgery in the left eye with Endo-laser and Sclera Buckling followed by gas injection and peribulbar anesthesia. He further submits that at the time of discharge i.e. on 13.02.2005, the complainant had no sign of infection, pain, discharge exposed buckle, corneal ulcer, abscess etc. and there was no medical negligence on the part of the hospital and the doctor.

10.     The main question for consideration is whether there was any negligence on the part of the hospital and the doctor and the respondents no. 3 and no. 4.

11.     Firstly, we would like to quote the affidavit of Dr. P. N. Nagpal from Eye Research Centre & Retina Foundation, Aso-Palov Eye Hospital, Ahmedabad, which reads as under:

“1. That the complainant had visited Eye Research Centre & Retina Foundation, Aso-Palov Eye Hospital, at Ahmedabad on 15.5.1999 [Registration No. 1999/5/1046] and consulted me and Dr. Manish Nagpal with complaint of sudden visual loss in the Right Eye on 11.5.1999 and Floaters (black spots in front of the Eye that keep on moving in the Left Eye.

The complainant had a history of Cataract Extraction with Intra Occular Lens Implantation in his Right Eye in February 1998. The complainant also had a history of Cryo Therapy in the Left Eye. The presence of Cryo Marks in the Retina of complainant’s Left Eye signified the fact that attempts had been made earlier to prevent/ward off the Lesions (Retinal Breaks/Holes/Tears) from leading to Retinal Detachment by resorting to Cryo Therapy.

The complainant’s examination revealed a Giant Tear with Retinal Detachment, Pigment and Hole in the Posterior segment of the complainant’s Right Eye. The complainant underwent Vitrectomy (Retinal Detachment Surgery) on 17.05.1999 at the aforesaid Hospital at Ahmedabad with re-Surgery on 22.5.1999 for PFCL (Per Fluoro Carbon Liquid) removal and SOI (Silicon Oil Injection).

The complainant was next examined at the aforesaid Hospital at Ahmedabad on 3.7.1999 with vision in the Right Eye being 6/60 and in the Left Eye being 6/12. The complainant was advised to come for review after three months.

The complainant was, thereafter, examined on 20.08.1999 with complaint of redness and diminution of vision in the Right Eye for 1 ½ months due to blunt trauma. The complainant had a vision of counting fingers at 2 ft. in the Right Eye and 6/18 in the Left Eye. The complainant was advised Right Eye SOR (Silicon Oil Removal) and revision of Virectomy.

The complainant was, then, examined at the aforesaid Hospital at Ahmedabad on 16.8.2000 with complaint of blurring of vision in the Right Eye for two months. The complainant had a vision of counting fingers atg 1.5 ft. in the Right Eye and 6/12 p (partial) in the Left Eye. The complainant was operated for SOR (silicon Oil Removal) in the Right Eye on 17.08.2000.

The complainant was next examined at the aforesaid Hospital at Ahmedabad on 7.9.2000 with complaint of diminution of vision in the Right Eye for last 10 days. The complainant had a vision of hand movement in the Right Eye and 6/9 in the Left Eye.

The  complainant was, thereafter, examined at the aforesaid Hospital at Ahmedabad on 13.10.2000 with loss of vision since last 10 days. The complainant had a vision of hand movement in the Right Eye and 6/12 in the Left Eye. The complainant was explained by the doctors of the aforesaid Hospital at Ahmedabad that his Right Eye was at the end stage (phthisical explained). After having been examined on 13.10.2000, the complainant had been advised to come for review of the Left Eye after one year. This was so because patient was high Myopia and having already undergone Cataract Extraction and subsequent Retinal Detachment with still subsequent loss of vision in one Eye are considered to be high risk patients for Cataract and/or Retinal Detachment in the other eye.

However, despite being advised for review of Left Eye after one year as early as on 13.10.2000, the complainant failed to get his Left Eye reviewed after one year as advised.

…. It is also incorrect on the part of the complainant to state that “he had fungus and bacteria in his Left Eye on account of an infected Plomb being put in his left Eye during Retinal Detachment Surgery (Virectomy) on 12.02.2005”. Had the Plomb being infected from the very beginning, the same would have been apparent on 21.02.2005 itself when the complainant had first consulted the Doctors at Ahmedabad and further on 14.03.2005 when Virectomy with Exploration and Fluid Air Exchange was performed by the said Doctors. It was only three days after the Surgery on 14.3.2005 that the complainant had complaint of increasing pain and redness on 17.3.2005 and some pockets of dead conjunctival tissues were noted, leading to removal of the Plomb.”

       Further, we would like to quote the High Risk Consent given by the complainant, which reads as under:

“HIGH RISK CONSENT

I have been explained that I have got Rhegmatogenous Retinal Detachment in my LE. Surgery is the option available for this disease.

After surgery also vision may not improve at all or may improve to some extent only.

                   In some of these cases, multiple surgery may also be required.

I have been explained about visual + cosmetic prognosis and appeal to undergo surgery as my doctor at Dr. Agarwal Eye Hospital Jaipur deem fit.

Sd/-                                                             Sd/-

G.P. Arora                                          (Sanjay Arora)

Date 12/2/2005                                   Dt. 12/2/2005”

12.     From a perusal of the affidavit of Dr. P.N. Nagpal, we find that the complainant had taken the treatment from Eye Research Centre & Retina Foundation, Aso-Palov Eye Hospital at Ahmedabad for the visual loss in the right eye in the year 1999 and had a history of Cataract Extraction with Intra Occular Lens Implantation in his Right Eye in February 1998. Also, the complainant had a history of Cryo Therapy in the Left Eye and attempts had earlier been made to prevent/ward off the Lesions (Retinal Breaks/holes/Tear) from leading to Retinal Detachment by resorting to Cryo Therapy. It is also apparent that after having been examined on 13.10.2000, the complainant had been advised to come for review of the Left Eye after one year. The complainant has failed to produce any documentary evidence to prove that he got his left eye reviewed after one year. Apart from this, the complainant was suffering from high myopia and was a high risk patient as per the medical record. The affidavit of Dr. Nagpal further states “Having gone through the case sheet of the complainant, I did not find any reason to suspect or conclude that the Retinal Detachment Surgery (Vitrectomy) of complainant’s Left Eye as performed in Jaipur was wanting in any manner.”………“The fact that the complainant had post-op complications, otherwise known/common, does not necessarily and ipso facto imply that there was no Retinal Detachment and/or the Surgery was inadequate in any manner and/or post-op diagnosis/treatment was improper or lacking in any manner whatsoever. The Surgery performed was always a HIGH RISKS Surgery as changes of PVR (Proliferative Vitreo Retinopathy) render the result of such Surgery extremely poor.” It is pertinent to mention that before conducting surgery, the doctor had obtained a High Risk Consent in which it is clearly mentioned that the complainant was informed that ‘after surgery also, vision may not improve at all or may improve to some extent only and in some of the cases multiple surgery may also be required’.

The law relating to what constitutes medical negligence has been laid down in detail by the Hon’ble Supreme Court in its judgment in Jacob Mathew vs. State of Punjab & Anr., (2005) SCC (Crl.) 1369. It is based on the Bolam Test (1957) 2 All ER 118. The test for medical negligence is based on the deviation from normal medical practice and it has been held that establishment of negligence would involve consideration of issues regarding

1. state of knowledge by which standard of care is to be determined.
2. standard of care in case of a charge of failure to (a) use some particular equipment, or (b) to take some precaution,
3. enquiry to be made when alleged negligence is (a) due to an accident, or (b) due to an error of judgment in choice of a procedure or its execution. For negligence to be actionable it has been held that the professional either (1) professed to have requisite skill which he did not possess, or (2) did not exercise, with reasonable competence, the skill which he did possess, the standard of this being the skill of an ordinary competent person exercising ordinary skill in the profession.

            It was further held that simply because a patient did not respond favourably to a treatment or a surgery failed, the doctor cannot be held liable per se under the principle of res ipsa loquitur. In a claim of medical negligence, it was laid down that it was essential to establish that the standard of care and skill was not that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. For negligence to be actionable it has to be attributable and three essential components of “duty”, “breach” and “resulting damage” need to be met, i.e.: (i) the existence of a duty to take care, which is owed by the defendant to the complainant; (ii) the failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and (iii) damage, which is both causally connected with such breach and recognized by the law, has been suffered by the complainant. While distinguishing between civil and criminal negligence in cases of medical negligence, the Hon’ble Supreme Court has clearly laid down the criteria of a failure to provide the standard of care expected of a prudent doctor of reasonable skill resulting in damage.

13.     Considering the facts and circumstances of the case, we are of the opinion that the complainant has failed to establish medical negligence on the part of the hospital, doctor and the respondents no. 3 and no. 4 and the Order of the State Commission is a well-reasoned Order and the same does not suffer from any illegality or irregularity.

14.     The appeal fails and the same is dismissed. Pending I.A., if any, stands disposed of with this Order.