This complaint presents a hard case, even if the complainant fails to establish any medical negligence or deficiency in service on the part of the opposite parties because the complainant in this case was born with a congenital disease of glaucoma in her both eyes, may be on account of a pre-mature birth as has been projected on record. For the said disease, the complainant was treated in the Premier Medical Institute of the country and its attached Ophthalmic Centre, i.e. Rajendra Prasad Centre for Ophthalmic Sciences through the well qualified, skilled and experienced Ophthalmologists / Ophthalmic surgeons at the relevant period. Unfortunately, despite the treatment given to her through successive surgeries between 1988 and 1992, the complainant’s vision could not be regained. Consequently, she remains a visually impaired person at the age of 4 years and continues to be so though by now she has attained the age of about 23 years. 2. The present complaint was filed alleging medical negligence on the part of the doctors and deficiency in service on the part of the hospitals in the treatment given to the complainant over a period of about 4 years in order to cure the disease of congenital glaucoma. The parents/guardians of the complainant believed that the opposite parties are responsible for the present health condition of the complaint and on that presumption, they have made several allegations and listed some instances of medical negligence and deficiency in service. The allegations of medical negligence and deficiency in service were denied by the opposite parties by filing their written version and it was maintained that going by the severity and rarity of congenital disease with which the complainant was suffering and the period, i.e. during late 1980s, whatever best treatment was available, was given to the complainant without any fault or negligence on the part of the doctors or hospital. It was sought to be explained that incidence of such a disease with which complainant was suffering, was so rare that an Ophthalmic surgeon would not come across more than 3 – 4 cases of this nature during his career. 3. Parties largely relied upon the record of the medical treatment given to the patient and also by filing their affidavits in support of their respective pleas. Though it is stated by Mr. Qayam-ud-Din, learned counsel for the complainant that after her discharge from the opposite party – hospital, in November 1992, the complainant was taken to Shanker Netralaya, Chennai for her further treatment but no record of the said hospital has been filed on record. Had that record been filed, perhaps the same could have thrown some light on the question as to whether the treatment given by the opposite parties was lacking in some way or was in accordance with the standard medical protocol in that behalf. Faced with the above situation and there being no concrete material to support the case of the complainant and with a view to render an effective adjudication of the complaint, this Commission considered it expedient to refer the case to an independent expert medical body – Guru Nanak Eye Centre, Govt. of NCT of Delhi, New Delhi for obtaining their opinion. A panel of doctors, namely, Dr. Usha Vadava, Director Professor of Ophthalmology as Chairman and Dr. Usha K. Raina, Director Professor of Ophthalmology & Dr.Kirti Singh, Professor of Ophthalmology as Members was constituted and the said medical board after consideration of the entire medical record of treatment of the complainant at the opposite parties no.1 & 2 hospital has opined as under:- “FINDINGS OF THE COMMITTEE 1. As per documents provided, diagnosis appears to be correct. 2. It is the considered opinion of the special board that as per documents provided, no medical negligence was done by the treating doctors. 3. The surgeries performed are the accepted standard of care worldwide. Multiple surgeries are often required as single surgery is known to fair poorly in such a young age glaucoma. (DR. KIRTI SINGH) (DR. USHA K. RAINA) Professor of Ophthalmology Director Professor of Ophthalmology Member Member (DR. USHA YADAVA) Director Professor of Ophathalmology Chairman” 4. Learned counsel for the complainant made a vain attempt to assail this report of the medical expert on the ground that the report has been rendered only on the basis of the record of treatment and not by examination of the complainant. We have noted this submission only to be rejected because the medical board was required to give its opinion on the question as to whether the treatment given to the complainant by the opposite parties from 1988 to 1992 was in accordance with the standard medical protocol in that behalf or otherwise. There is no dispute that despite the treatment given to the complainant, she has remained a totally visually impaired person and she continues to be so. Based either on the existing material on record or on the strength of any medical authorities, learned counsel for the complainant has not been able to persuade us to hold otherwise than has been reported by the medical board. The law on the subject as to when a professional like medical practitioner can be said to have committed negligence has been crystallize by catena of decisions starting from Bolam’s case and then Jacob Mathew’s case which clearly laid down that a professional cannot be held guilty of negligence unless it is shown that he was not skilled person to give the said treatment or that the treatment given was not in accordance with the established protocol. In the case in hand, going by the entirety of facts and circumstances, we have no manner of doubt that the treatment given to the complainant was strictly in accordance with the accepted standard of care and, therefore, they cannot be faultered for any lapse which can tantamount to negligence in the medical treatment of the complainant. The complaint has no merits and is liable to be dismissed. 5. Before parting with the matter, we would however like to observe that it is unfortunate that despite all the medical research which has taken place in the last century in medical health sphere, the complainant’s vision could not be restored and she continues to be a visually impaired person. We have enquired from Dr. Sood (opposite party no.5), if going by the condition of the complainant, is it possible to perform the corneal grafting operation (Keratoplasty) even at this stage or to give her any other treatment to improve the situation. According to him, the case can be examined by the concerned experts and a view taken. Counsel for the complainant has brought to our notice that the complainant has already got her registered with opposite parties no.1 & 2 for performing the said procedure of corneal grafting operation (Keratoplasty) but she is still waiting for the said procedure to be conducted. In the above noted facts and circumstances, we would call upon the opposite parties no.1 & 2 to provide the requisite treatment, in whatever form it may be, to the complainant free of cost and on priority basis. We hope that the opposite parties no.1 & 2 would take this direction rightly and do the needful. 5. In the result, the complaint fails and is hereby dismissed, however with the above directions, leaving the parties to bear their own costs. |
