Haryana

Karnal

664/2009

Vanita Alias Meenu W/o Mukesh Aged - Complainant(s)

Versus

Bhagnagar Eye Care Centre - Opp.Party(s)

Sudip Dewan

12 Jan 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

                                                               Complaint No. 664 of 2009

                                                             Date of instt.:25.09.2009

                                                              Date of decision:12.01.2017

 

Mrs. Vanita alias Meenu wife of Shri Mukesh, aged about 37 years, resident of 578, sector-8, Urban Estate, Karnal.

                                                                   ……..Complainant.

                                      Vs.

1. Bhatnagar Eye Care Centre, Hospital Road, Karnal.

2. Dr. G.K. Bhatnagar, Eye Surgeon, Hospital Road Karnal.

3 The New India Assurance Company Ltd. through Divisional Manager Karnal.

 

                                                                      ………… Opposite Parties.

 

                     Complaint u/s 12  of the Consumer Protection Act.

 

Before                   Sh.K.C.Sharma……….President.

                   Sh.Anil Sharma…….Member.

 

Present:-      Sh. Sudip Diwan Advocate for the complainant.

                    Sh. G.P.Singh Advocate for the Opposite parties no.1 and 2.

                    Sh. Naveen Khaterpal Advocate for opposite party no.3.

                  

 ORDER:

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer protection Act 1986, on the averments that in the year 2007 when she was 35 years old, she was suffering from Cataract. She got herself examined from opposite party no.2, who informed that she was suffering from the disease called as Posterior Polar Cataract in both eyes. She was admitted in the hospital of opposite party no.2 on 26.9.2007. She was not informed about the proable complications after post surgical period. The opposite party no.2 told her that it was simple Cataract operation and his hospital was having well equipped operation theatre. However, she found that the operation theatre was not maintained in the hygienic manner, containing non-functional air conditioners, poor lighting system, non-sterilized operation equipments, which resulted into post operational infection.  Due to wrong diagnose and poor hygienic condition of the operation theatre, she developed Endophthalmitis infection, which resulted into complete blindness. After few days of the operation, on 5.10.2007 she felt some uneasiness in her operated eye and noticed blurring in her vision. Immediately, she contacted opposite party no.2, who advised her to visit his hospital on 6.10.2007 instead of giving immediate medical treatment. On 6.10.2007  the opposite party no.2 gave some injection and medicines with false assurance to cure the operated eye. Her vision problem partially corrected temporarily, but after 14 days the same problem re-occurred. She was advised some steroids, which she started using as per advice of opposite party no.2. After passing of another 15 days, the problem re-occurred, but the opposite party no.2 gave her false assurance that her operated eye would be cured permanently. Therefore, having faith in opposite party no.2 she continued treatment from opposite party no.2. After finding no change, she alongwith her husband went to P.G.I. Chandigarh on 31.12.2007, where she was examined by Dr. Ramandeep Singh, who advised her for immediate surgery. Dr. Ramandeep Singh even discussed the desired medical procedure with opposite party no.1 on telephone. Even, after rational medical advice of Dr. Ramandeep Singh, the opposite party no.2 misadvised her not to go ahead with the surgery from Dr. Ramandeep Singh. Again on 02.01.2008, she alongwith her husband went to Dr. Ramandeep Singh, who disagreed with the diagnose of tass and further advised for immediate surgery. In view of the difference of opinion given by two Opthologists, she and her husband preferred to visit Shankra Nethralaya, Chennai on 3.1.2008, but unfortunately she could not board the flight due to traffic congestion. She alongwith her husband proceeded to Chennai on the next day. She was examined by attending doctor in emergency at Shankra Nethralaya at 11 p.m. on 4.1.2008. On the next day, she visited the hospital at 4.00 a.m. and got appointment from Dr. K. V. Singh, who sent for further consultation with Senior Doctor and gave appointment for 14.1.2008. She further continued medicines prescribed by P.G.I. Chandigarh. She returned to Karnal on the same day and met the opposite party no.2 in the hospital, who further referred to Dr. Salil Gupta, Retina Specialist Karnal. Dr. Salil Gupta advised immediate procedure of second operation on the eye and also told that there could be complications due to delay, but instead of giving correct medical advice the opposite party no.2 intentionally delayed the operation from 6 to 8 January, 2008.  After finding complications in her eye, she again went to Chennai on 13.1.2008. She was operated up on 17.1.2008 and on 25.1.2008, which unfortunately resulted into permanent vision loss of her right eye. The above complications deteriorated due to the wrong diagnose of opposite party no.2, mis-information to make immediate operation at Karnal or Delhi by some superior Specialist. Infact, she had developed fungus in her eye ball. The opposite party no.2 wrongly diagnosed and treated for tass(Toxic Anterior Segment Syndrome). She had suffered Aspergillosis due to fungal endophthalmitis, especially in IV drug users. The opposite party no.2 instead of operating upon the eye preferred to control fungal endophthalmitis through IV drugs, very strong steroids, which resulted into Aspergillosis. Thus, opposite party no.2, was negligent in treating her. Due to wrong diagnose by opposite party no.2, her life has become hell. She is suffering permanent disfiguration with anxiety. She has spent an amount of Rs.5 lacs on her surgery, medicines, attendant, special diet, transportation etc.

2.                Notice of the complaint was given to the opposite parties. The opposite parties no.1 and 2 appeared and filed written statement controverting the claim of the complainant. Objections have been raised that the complainant has no cause of action to file the complaint; that complainant has not approached this forum with clean hands and that opposite party no.2 had taken a professional indemnity policy from New India Assurance Company, Branch Office, Old G.T. Road, Karnal and the said company is also required to be arrayed as a party.

                   On merits, it has been submitted that the complainant was suffering from cataract, she was examined by opposite party no.2 and after examination she was diagnosed to be case of posterior polar cataract in both eyes. She was admitted in the hospital on 26.9.2007 and cataract surgery was performed on the same day. She did not have any operative complications including posterior capsule tear, which is expected in cases of posterior polar cataract.  The opposite party no.2 is a specialist of cataract surgery and his hospital/operation theatre is well equipped. All the operations are done under very hygienic atmosphere. On 26.9.2007 six cataract surgeries were performed in the operation theatre and none of them developed any complication. After operation, the eye sight of the complainant was 6/9, she was advised to have a regular check up, to take medicines and put eye drops in the eyes religiously.  The Post operative precautions were printed on the back of the discharge card with diagram in Hindi, for one month. The complainant did not visit his hospital on 5.10.2007. Infact, on 6.10.2007 she visited the hospital for a post operative check up. Her operated eye was thoroughly checked. The progress was very satisfactory and her best corrected vision was 6/6, intra ocular pressure and fundus were normal and there was no post operative problem. She was advised to continue taking medicines regularly and observe other precautions as advised. Since everything was found to be normal, no other procedure was required to be followed. On 20.10.2007 the complainant visited the hospital and complained of redness and blurred vision in the operated eye. She did not complain of pain and there was no lid edema. Irregular use of medicines, lack of post operative care and early joining of duties could be a contributory factor to the present complication. Clinical examination confirmed the picture of severe anterior inflammatory reaction and accordingly she was advised topical and oral steroids and sub-conj-injection of gentamycin dexa methasone was given to suppress acute inflammation on the basis of clinical observation. She was advised to come on the next day for review. On 21.10.2007 she visited the hospital and a dramatic improvement in the vision was found and AC reaction was almost clear. The overnight development made the opposite party no.2 to think that post operative acute inflammatory reaction was not due to endophthalmitis. There was no vitritis. Fundus became normal. Thereafter, the complainant was examined weekly by opposite party no.2 and by visiting vitro retinal specialist in November and December 2007. She was found to maintain good vision. After surgery her vision was nearly 100% for more than three months. Earlier episodes of eye inflammation were the result of anterior uveitis, which subsided with topical eye drops and oral treatment and it was not due to endophthalmitis. Opposite party no.2 warned the complainant from time to time that sudden discontinuation and/or inadequate doses of steroids, lack of observing other post operative precautions may invite recurrence of acute inflammation and should be avoided.

                    It has further been pleaded that in clinical data given by Dr. Raman on the OPD record, vision was recorded as 6/9 and fundus clear on 31.12.2007. Dr. Raman Deep Singh in his notes has nowhere stated it to be a case of endophthalmitis nor advised immediate surgery(vitrectomy). Dr. Raman Deep Singh in his notes advised vitrous tap (diagnostic procedure) and intravitreal antibiotic injection (vancomycin +cefatazidine). Intravitreal injection and vitreous tap are not risk free procedure. Such procedure can lead to infection, retinal detachment, lens trauma and haemorrhage and any of these complications can lead to loss of vision. Injection was given as mentioned in OPD ticket. On 31.12.2007, her vision was 6/9, fundus was clear as per record of PGI and culture was free from any germs. All these factors strongly prove that till the time of vitreous tap, there was no endophthalmitis. Loss of vision and infected vitreous fluid are the essential features of endophthalmitis. Since all these features were not there upto 31.12.2007, it could safely be concluded that there was no endophthalmitis due to surgery done at Karnal. Opposite party no.2 never advised the complainant to resume duties just after one week, rather she was advised one month post operative care given on the back of the discharge card,  whereas she started working against medical advice. Though the post operative instructions and precautions were not followed, still the vision remained normal for over three months and as such opposite party no.2 cannot be accused of any negligence. Dr. Raman Deep Singh did not advise immediate surgery on 31.12.2007. As a rule, when an intravitral injection is given, the effect of the injection is required to be observed for 48 to 72 hours in context with the vision and for deciding surgical intervention. In the present case, without waiting even for 24 hours Dr. Raman Deep Singh advised surgical intervention. In the record it was nowhere mentioned that the condition of the eye has further worsened necessitating immediate surgical intervention. Giving of intravitral injection/vitreos tap can lead to infection in the inner part of the eye. Endophthalmits complication is managed and treated by a vitro retinal specialist. Opposite party no.2 had not advised the complainant not to go ahead with the treatment being given by Dr. Ramandeep Singh. She was advised to consult some vitero retinal specialist and she got herself checked up from a local vitgro retinal surgeon and Shankara Netgaralaya, Chennai. Even the specialist in Shankara Netaralaya, Chennai did not advise her any immediate surgical intervention. In this way, neither there was any deficiency in service or negligence on the part of the opposite party no.2.

3.                Opposite party no.3 filed separate written statement disputing the claim of the complainant. Objections have been raised that the complaint is not legally maintainable; that the complainant has no cause of action against opposite party no.3; that the complainant has not approached this forum with clean hands; that the complaint is time barred and that complicated questions of law and facts are involved which cannot be decided by this forum in summary manner.

                   On merits, it has been denied that the complainant had developed endophthalmitis infection due to wrong injection and poor hygienic condition of the operation theatre of opposite party no.2.

4.                In evidence of the complainant, her affidavit Ex.CW1/A and documents Ex.C1 to Ex.C110 have been tendered and Dr. Ramandeep Singh has also been examined.

5.                On the other hand, in evidence of the opposite parties no.1 and 2, affidavit of  Dr.G.K.Bhatnagar Eye Surgeon Ex.O1, affidavit of Dr. Ruchi Mittal Ex.O2 and documents Ex.O3 to Ex.10 have been tendered .

6.                Opposite party no.3 tendered in evidence affidavit of Rajeshwar Singh Divisional Manager Ex.OP3/A and documents Ex.OP3/B and Ex.OP3/C.

7.                We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned counsel for the parties.

8.                As per the case of the complainant she was suffering from the disease called as Posterior Polar Cataract in both eyes. Operation was performed by opposite party no.2 in his hospital on her right eye, on 26.09.2007. On 5.10.2007 she felt some uneasiness in her operated eye and noticed blurring in her vision. She contacted opposite party no.2, who gave her some injections and medicines. On 6.10.200, due to which her vision partially corrected temporarily. After 14 days, the same problem reoccurred. She was advised some steroids, which she started using as per advice of opposite party no.2. After 15 days, the problem reoccurred. On the assurance given by opposite party no.2, she continued treatment from him. After finding no change, she went to P.G.I. Chandigarh on 31.12.2007, where she was examined by Dr. Ramandeep Singh, who advised her for immediate surgery. Even after advice of Dr. Ramandeep Singh the opposite party no.2 misadvised her not to go ahead with the surgery. On 2.1.2008 she again went to Dr. Ramandeep Singh, who disagreed with the diagnose of tass given by opposite party no.2 and further advised for immediate surgery. In view of difference of opinion given by two Opthologists, she visited Shankra Nethralaya, Chennai on 3.1.2008, but she got appointment for 14.1.2008. In the meantime, she continued medicines prescribed by P.G.I. Chandigarh. She contacted opposite party no.2, who further referred her to Dr. Salil Guppta, Retina Specialist Karnal, who also advised immediate surgery, but instead of giving correct medical advice, the opposite party no.2 intentionally delayed the operation from 6 to 8 January. She again went to Chennai on 13.1.2008, where she was operated up on 17.1.2008 and 25.1.2008, but unfortunately she suffered vision loss of right eye. The opposite party no.2 wrongly diagnosed and treated for tass.  He instead of operating upon the eye preferred to control  fungal endophthalmitis through IV drug and very strong steroids, which resulted into Aspergillosis. Due to negligent treating and wrong diagnose by opposite party no.2, she suffered vision loss of right eye.

9.                Learned counsel for the complainant laid emphasis on the contention that the operation theatre of opposite party no.2 was not maintained in hygienic manner, which resulted into post operational infection. Thereafter, the opposite party no.2 wrongly diagnosed and treated her for tass, whereas fungus had developed in the operated eye and due to fungal endophthalmitis she had suffered Aspergillosis. The opposite party no.2 wrongly advised her for not getting done immediate surgery despite such opinion expressed by Dr. Ramandeep Singh a PGI Chandigarh and Dr. Salil Gupta Retina Specialist Karnal. Due to negligence, wrong diagnose and advice of opposite party no.2, the complainant suffered loss of vision of her right eye, which could not improve even after the operations at Shankar Nethralaya Chennai. In this way, there was negligence and deficiency in service on the part of the opposite party no.2, therefore, the complainant is entitled to get compensation for the same. In support of his contention, he placed reliance upon  Jawaharlal Institute of Post Graduate Medical Education And Research (JIPMER) and anr. Versus  S. Varrery Srinivas II(2012) CPJ 467 (NC), K.N. Lal Versus R.K.Akhaury 1997(3) C.P.J. 112, A.U. Sukumaran Versus N.S.D. Raju and others 2010 ACJ 490 and D.Rama Krishan Vs. K.Sree Kumar Reddy (Dr.) and ors 200891) CPJ 126.

10.              In Jawaharlal Institute’s case (supra)  surgery of right eye of the complainant for contract was performed by Jawaharlal Institute of Post Graduate Medical Education and Research (JIPMER) on 10.7.1997. No post operative examination of the eye was done on 10.7.1997. No antibiotic in any form was administered immediately post-surgery. Steroids were started and given with unexplained breaks. The patient was having blunt trauma, as he had suffered blunt injury in his right eye sometime in the year 1982. In view of such facts and circumstances of the case and the standard protocol for contract surgery, it was held by Hon’ble National Commission that there was deficiency in treatment given to the complainant, who having been a case of blunt trauma, needed to be treated with higher than ordinary care, because of predisposing risks. In K.N. Lal’ case (supra)  the complainant had consulted two eye specialists before consulting the opposite party. None of those eye specialists had diagnosed glaucoma in his right eye. However, after vision test they had prescribed glasses. The opposite party diagnosed that there was nuclear cataract. The opposite party performed the operation, which was not advisable. There was no mention of vision test except DV. Even no IOP test was conducted, which could lead the complications, because if IOP is found to be beyond permissible limit, the same has first to be controlled by the medication before operation or there may be chance of expulsive hemorrhage. Under such circumstances, it was held by the Hon’ble Bihar State Consumer Disputes Redressal Commission, Patna that there was serious omission on the part of the doctor which is not expected of an ophthalmic surgeon of even any average skill. Thus, there was deficiency in service on the part of the opposite party. In A.U. Sukumaran’s case (supra)  it was held by Hon’ble Supreme Court that loss of vision of the complainant may have been caused due to infection and hospital authority were negligent in maintaining hygienic. In D.Rama Krishan’s case (supra) the complainant suffered loss of vision after Emulcification surgery i.e. to remove the Cataract and to arrange the lens. While performing surgery lens was dislocated and dropped on the retina. Thereafter, Posterior Segment Surgeon called who was not available at that point of time in the hospital. The lens had broken into pieces and while removing broken pieces the vitreous chamber was punctured and the vitreous fluid poured out of the eye and caused retinal detachment with giant retinal tear The complainant suffered loss of vision. In view of the facts and circumstances of the case Hon’ble Andhra Pradesh State Consumer Disputes Redressal Commission held that requirement of repeated surgeries after operation was not explained. There was sufficient material on record to show that opposite parties failed to follow normal medical practices as per standards of medical parlance. Thus, there was medical negligence on the part of the opposite parties.

11.              To wriggle out of the aforesaid contention, learned counsel for the opposite parties no.1 and 2 contended that opposite party no.2 is specialist of Cataract Surgery and his operation theatre is well equipped. On 26.9.2007 six cataract surgeries were performed in the same operation theatre, but apart from the complainant none of them developed any complication. After the operation the eye sight of the complainant was 6/9 and she was advised to have regular check up, to take medicines and put eye drop. On 6.10.2007 operated eye of the complainant was checked and the progress was satisfactory and her best corrected vision was 6/6, intraocular pressure and fundus were normal and there was no post operative problem. She was advised to take medicines regularly and observe other precautions. On 20.10.2007, she complained of redness and blurred vision, which could be due to irregular use of medicines, lack of post operative care and early joining of duties. She was advised topical and oral steroids and sub-conj-injection of gentamycin dexa methasone was given. On 21.10.2007 there was improvement in the vision and AC reaction was almost clear. Therefore, opposite party no.2 thought that operative acute inflammatory reaction was not due to endophthalmitis. She was examined weekly by opposite party no.2 and by visiting vitro retinal specialists in November and December 2007. After her surgery her vision was nearly 100% for more than three months. These facts and circumstances indicate that there was neither any negligence nor deficiency in service on the part of the opposite party no.2. It has further contended that even on 31.12.2007 when the complainant was checked in PGI Chandigarh, her vision was recorded as 6/9 and fundus was clear, but Dr. Ramandeep Singh advised vitreous tap and Intravitreal injection which are not risk free procedure. Even culture was free from any germs. These factors strongly prove that till the time of vitreous tap, there was no endophthalmitis due to surgery done by opposite party no.2. Dr. Ramandeep Singh did not advise any immediate surgery on 31.12.2007, but on 2.1.2008 without even waiting for 24 hours, he advised surgical intervention, because on 2.1.2008 the vision of the complainant was found 6/24. Intravitral injection/vitreos tap can lead to infection in the inner part of the eye. It has lastly been argued that the treatment record of the complainant does not indicate in any manner that there was any negligence or deficiency in service on the part of the opposite party no.2. In support of his contention he placed reliance upon Babu Lal Gupta & Anr. Versus Navjyoti Eye Centre & Ors. IV (2013) CPJ 586 (NC), Shyam Lal Ladia Verus Dr.O.P.Nayak & Anr. III(2013) CPJ 583 (NC) and Akash Dora Versus Dr. Dinesh Sharma & Anr. IV (2013) CPJ 19A (CN) (Uttaranchal)

12.              In Babu Lal Gupta’s (supra) the complainant was patient of diabetes, which was controlled by medication. He was advised surgical intervention in Right eye, Vitrectomy, with belt buckling, membrance peeling with silicon injection and endolaser by Shankar Netralya Chennai. He was examined by the opposite parties and it was revealed that his vision acuity was only a perception of light in both eyes. The opposite parties performed surgery on left eye on 6.12.2000 and on right eye on 17.01.2001, but instead getting relief he experienced further deterioration of vision in both eyes. Thereafter, he was referred to Eye Research Centre and Retina Foundation, Ahmedabad, to seek advice. Keeping in view the facts and circumstances of that case it was held by Hon’ble National Commission that loss of vision was due to severity Proliferative Diabetic Retinopathy not due to mode of treatment or surgeries conducted by the opposite party. The opposite parties had treated as per signs and symptoms of the case. Opposite parties have not deviated from any standard of medical practice. No negligence was proved. It was further held that referral is not abandonment or negligence. In Shyam Lal Ladia’s case (supra) operation for cataract in right eye of the complainant was performed by the opposite party no.1, but after operation intraocular infection occurred, which resulted in removal of the right eye. Six other patients, who had received lenses did not show any infection. Even the pre-operative laboratory tests and medical checkup, which were conducted one month prior to surgery were normal. The post-operative prescription clearly mentioned that the complainant had vision of 6/24. Under such facts and circumstances, it was held by Hon’ble National Commission that once organisms gain access to vitreous cavity, overwhelming inflammation is likely to occur, making rapid recognition, diagnosis and treatment critical in optimizing final outcomes. Endophthalmitis is known complication of cataract surgery. No negligence was proved against the doctor. In Akash Dora’s case (supra) cataract surgery of left eye was performed. There was loss of vision and deficiency in service was alleged. There was nothing on the record to show that opposite party no.1 failed to exercise his skill to the best of his ability. Other doctors consulted and confirmed that the line of treatment adopted by the opposite party no.1 was correct. Therefore, it was held by Hon’ble Uttrakhand State Consumer Disputes Redressal Commission, Dehradun that doctor cannot be held guilty of medical negligence, if he adopted correct line of treatment and things went wrong.

13.               In the instant case, the complainant has alleged that due to medical negligence on the part of the opposite party no.2 she lost vision of her right eye. The opposite parties no.1 and 2 have altogether denied the allegations of the complainant, rather asserted that opposite party no.2 adopted correct line of treatment as per the symptoms and there was no negligence or deficiency in service. Thus, the material question which arises for consideration is whether there was any negligence or deficiency in service on the part of the opposite party no.2.

14.              In case of medical negligence, the specific allegations regarding negligence on the part of the doctor have to be proved and the onus of which lies on the complainant. A professional charged with the negligence is to show that he acted in accordance with general and approved practice. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. The doctor has discretion in choosing treatment which he proposes to give to the patient, but such discretion is relatively ampler in cases of emergency. Hon’ble Supreme Court in Jacob Mathew Vs. State of Punjab, (2005) 6 SCC 1 considered as to what constitute medical negligence and laid down as under:-

          “Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.

          2. Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptance to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial.

          3. A professional may be held liable for negligence on one of the two findings; either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess.  The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.

          4. The test for determining medical negligence as laid down in Bolam’s case (1957) 1 W.L.R. 582, 586 holds good in its applicability in India.”

          5. The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.

          6. The word ‘gross’ has not been used in Section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be ‘gross’. The expression ‘rash or negligent act’ as occurring in Section 304A of the IPC has to be rea as qualified by the word ’grossly.’

          7. To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.

          8. Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service or determining per se the liability for negligence within the domain of criminal law. Res ipsaloquitur has, if at all, a limited application in trial on a charge of criminal negligence.”

 

In Jacob Mathew (supra) the three Judge Bench of Hon’ble Supreme Court elaborating on the degree of skill and care required of a medical practitioner quoted Halspbury’s laws of England (4^th Edition Vol.30 para 35) as follows:

          “35. The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree  of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operation in a different way.”

 

15.              In Martin F. D’Souza Versus Mohd. Ishfaq 1(2009) CPJ 32 (SC),  Hon’ble Supreme Court observed as under:-

          “From the principles mentioned herein and decisions relating to medical negligence it is evident that doctors and nursing homes/hospitals need not be unduly worried about the performance of their functions. The law is a watchdog, and not a bloodhound, and as long as doctors do their duty with reasonable care they will not be held liable even if their treatment was unsuccessful.”

          “When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, sometimes have failures. A lawyers cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submission.”

          “Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse.”

 

16.            In Revision Petition no.1311 of 2013 titled Rajiv Navath Versus Dr. Shajahan Yoosaf Sahib and others’ (NC), Hon’ble National Commission held as under:-

          “12. What constitutes Medical Negligence is now well established by a plethora of Rulings of the Honorable Supreme Court of India and by several orders of this Commission. In the Bolam’s case (Bolam Vs. frien Hospital Management Committee (1957) 1 WLR 582. The locus classicus of the test for the standard of care in law, required of  doctor, developed from this landmark case. Mr. Justice McNair, in his direction to the jury, said:

          (a doctor) is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art…Putting if the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view”.

 

17.              In S.N. Singh (DR.) Versus Devendra Singh & Anr. III( 2011) CPJ 390 (NC),  Hon’ble National Commission while relying upon the judgment of Hon’ble Supreme Court and held as under:-

          “17. In C.P. Sreekumar (Dr.) MS (Ortho) Vs. S. Ramanujam, II(2009) CPJ 48 (SC)=(2009) 7SCC 130, the Supreme Court held that bald statement of the complainant cannot be accepted to reach conclusion that the Doctor lacked expertise. It is observed that too much suspicion about the negligence of the attending Doctors and frequent interference by Courts could be a dangerous proposition as it would prevent Doctors from taking decision which could result in complications and in such a situation the patient will be the ultimate sufferer.”

 

18.              Hon’ble National Commission in Mohd. Abrar Versus Dr. Ashok Desai and others, 2011 CTJ 613 (CP) (NCDRC) has observed as under:-

          “ The medical practitioners cannot be treated as magicians or demi-Gods. They are fallible human beings. The liability to pay compensation may arise only when the complainant proves that the causation was result of negligence committed by the medical practioner and there was clear material available to foresee the injury.”

 

19.              It is well settled principle of law that a physician cannot assure the patient of full recovery in every case.  A surgeon cannot guarantee that the result of surgery would invariably be successful, much less to the extent of 100% for the person operated upon. The only assurance, which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him, he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. A medical practitioner cannot be held liable, simply because things went wrong from mischance or misadventure or through an error of judgment, in choosing one reasonable course of treatment, in preference to another. A medical practioner would be liable, only where his conduct fell below that of the standards of a reasonably  competent practioner of such field.

20.              The facts of the present case are to be analyzed in the light of the proposition of law laid down in the aforediscussed authorities. There is no dispute regarding the fact that there was no negligence on the part of the opposite party no.2 in performing surgery on 26.09.2007. The complainant felt uneasiness in her operated eye and noticed blurring in her vision on 5.10.2007 and she contacted opposite party no.2, who gave her some injections and medicines, on 6.10.200, due to which her vision partially corrected temporarily. However, after 14 days the same problem reoccurred and at that time opposite party no.2 advised her steroids, but after 15 days the same problem reoccurred. She continued to get treatment from opposite party no.2. When there was no improvement she went to PGI Chandigarh on 31.12.2007, where she was examined by Dr. Ramandeep Singh. Therefore, the statement of Dr.Ramandeep Singh is very material. As per the statement of Dr. Ramandeep Singh, the visual acuity of operated eye of the complainant was 6/9 and that of left eye was 6/9+3. Examination of right eye revealed 3-4+cellular reaction. She was seen and labeled as low grade infection by Dr. Jagat Ram and referred immediately to Retina clinic. In Retina clinic her right eye anterior segment examination revealed 4+cells, 4+flare with <Imm hypopyon. Her media clarity was grade 1-2. She was diagnosed as a case of delayed post operative infection i.e. endophthalmitis in the right eye. She was advised need for immediate vitreous tap, intravitreal antibiotic, intravenous antibiotics. She was subjected to vitreous tap and intravitreal vanco and cefia injection under all aseptic conditions in operation theatre and was sent home on oral moxifloxacin, oral steroids  50mg OD and frequent topical steroids and antibiotic alongwith topical cycloplegics. Her vitreous tap was sent for gram stain, KOH stain, calcoclur stain alongwith bacterial and fungal cultures. She came back to retina clinic on 2.1.2008 and on that day her visual acuity had gone down to 6/24 in the right eye. Anterior segment examination revealed 3-cells, 3+flare, and membrane over the intraocular lens and no hypopyon. Media clarity was grade 2. Considering worsening of her ocular condition she was immediately advised pars plana vitrectomy with repeat intravitreal injections. Her vitreous tap reports were sought for.

 21.             It is pertinent to note that upto 31.12.2007 the visual acuity in the operated eye of the complainant was 6/9. Dr. Ramandeep Singh during cross examination stated that the intravitreal lens was also in position and fundus was clear. There was problem of hypopyon i.e. inflammation. Anterior segment examination revealed 4+cells, 4+flare, which indicated delayed post-operative infection i.e. endophthalmitis in the right eye. Initially, Dr. Jagat Ram who examined the complainant in PGI Chandigarh on 31.12.2007 diagnosed low grade infection and advised intravitreal and steroids antibiotics. Even Dr. Ramandeep Singh had not advised the complainant for immediate surgery on 31.12.2007, rather she was subjected to vitreous tap intravitreal vanco and cefia injection under all aseptic conditions in operation theatre and oral medicines were prescribed. She was advised immediate surgery on 2.1.2008, when the condition of the operated eye worsened and the visual acuity had gone down to 6/24. He also admitted that before giving of intravitreal antibiotics through injection the vision of the complainant was 6/9, but after two days of the injection the vision was recorded as 6/24. Thus, it is emphatically clear that the vision acuity of the operated eye of the complainant was 6/9 upto 31.12.2007, but the same had gone down to 6/24 after vitreous tap and intravitreal vanco and cefia injection given to her at PGI Chandgarh. It is also important to point out that Dr. Ramandeep Singh admitted that signs and symptoms of Uveitis and endophthalmitis overlap each other. There was no comment on the record brought by Dr. Ramandeep Singh that proper treatment was not given by opposite party no.2, though he stated that PGI’s doctor differed with the line of treatment adopted by opposite party no.2 and advised intravitreal antibiotics and vitreous tap for Microbiologial investigation immediately. He nowhere stated that the line of treatment adopted by opposite party no.2 was wrong and not recognized as per established medical procedures regarding treatment of inflammation and infection in the eye.

22.              There is no documentary evidence on record, which may show that after 2.1.2008 the complainant got any treatment from opposite party no.2. Ex.C10 shows that the complainant contacted Dr. Salil Gupta of Saraswati Nethralya Karnal, on the same day i.e. on 2.1.2008 and then on 8.1.2008, 9.1.2008 and 11.1.2008. On 9.1.2008 Dr. Salil Gupta observed that the patient was called for vitrectomy, but the patient felt that vision had improved and she had consulted elsewhere also and she decided not to go for vitrectomy and wanted to wait. The complainant has alleged in the complaint that opposite party no.2 misadvised her not to go for surgery, even after such advised given by the doctors of PGI Chandigarh, but there is no documentary evidence in this regard. When she had consulted the other doctors also, it cannot be believed that she always relied upon the advice of opposite party no.2 and for that reason did not go for immediate surgery even after advice at PGI Chandigarh and Dr. Salil Gupta.

23.              The case summary of the complainant prepared at Shankar Nethralaya Chenni has also been produced on the file. On her examination there on 5.1.2008, vision was 6/18;<36 in the right eye. Extraocular movements were full. Slit lamp examination revealed that intraocular lens was in position with? Posterior capsular plaque. There were cells 4+ and flare 4+, but there was no hypopyon. Fundus examination revealed vitreous opacities and probably a drug precipitates on the retinal surface. The Retina was seen to be attached, but the vitreous was quiet haze. She was suspected to have low grade endophthalmitis. She was started on topical eyedrops as well as systemic treatment for the endophthalmitis. On 14.1.2008 anterior chamber tap was done, which revealed no bacteria or fungal elements on microscopy. Polymerase chain reaction for eubacterial genome, panfungal genome as well as Pacnes genome was negative and even the culture was shown to be negative. However, the vitreous remained haze. In view of that she was advised to undergo vitrectomy in the right eye. Thereafter, surgery was done on 17.1.2008 and again on 25.1.2008, but the surgery proved uneventful. Thus, the case summary prepared at Shankar Nethralya also does not indicate that there was any negligence on the part of the opposite party no.2 while performing surgery on 26.9.2007 and treating the inflammation of low grade infection with medicines.

24.              The complainant has alleged that she got infection in her operated eye as the operation theatre of opposite party was not maintained in hygienic manner containing non-functional Air Conditioner, poor lightening system and non sterilized operation equipments. On the other hand, the opposite party no.2 asserted that on the same day six operations were performed by him in the same operation theatre, but none had any infection. Except oral allegation, there is no evidence of the complainant that the operation theatre of the opposite party no.2 was not properly maintained. Therefore, her allegation regarding poor maintenance of the operation theatre of the opposite party no.2 resulting into infection in her operated eye, cannot be accepted. Endophthalmits is non complication of cataract surgery and the doctor cannot be held negligent until and unless it is proved that he had not performed the surgery properly or that he had adopted wrong line of treatment, which is not adopted for treating infection /endophthalmits. If, he adopted one of the accepted lines of treatment he cannot be held negligent in any manner.

25.              In view of the aforediscussed facts and circumstances, we have no hesitation in observing that the complainant has failed to prove that there was any medical negligence on the part of the opposite party no.2  at the time of performing surgery on her right eye or post-operative treatment regarding inflammation due to infection.

26.              As a sequel to the foregoing reasons, we do not find any merit in the present complaint. Therefore, the same is hereby dismissed. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:12.01.2017

                                                                                      (K.C.Sharma)

                                                                                         President,

                                                                             District Consumer Disputes

                                                                             Redressal Forum, Karnal.

                             (Anil Sharma)

                               Member