Haryana

StateCommission

CC/142/2015

SRI DEVENDER KUMAR PANDEY - Complainant(s)

Versus

COLUMBIA ASIA HOSPITAL - Opp.Party(s)

J.S.MANN

11 Aug 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

 

Complaint No     :    142 of 2015

Date of Institution:    20.08.2015

Date of Decision :    11.08.2017

 

Sri Devendra Kumar Pandey s/o Sh. Sachidanad, Resident of Shivamohan Bhuyan Path, Ward No.6, Nera Circuit House, P.O. Noarth Lakhimpur, District Lakhimpur, Assam-787001.

                                      Complainant

Versus

 

 

1.      M/s Columbia Asia Hospital, Block-F, Near Golchakkar, Palam Vihar, Gurgaon, Haryana-122017 through its Director.

2.      Medical Superintendent, M/s Columbia Asia Hospital, Palam Vihar, Near Golchakkar, Gurgaon, Haryana-122017.

3.      Dr. Kinshuk Biswas, MBBS, MS (Ophthalmology) Columbia Asia Hospital, Palam Vihar, Near Golchakkar, Palam Vihar, Gurgaon, Haryana-122017.

4.      Dr. Lopamudra Das, MBBS, DOMS, Columbia Asia Hospital, Palam Vihar, Near Golchakkar, Gurgaon-122017, Haryana.

5.      United India Insurance Company Limited, 42-C, 3^rd Floor, Moolchand Commercial Complex, New Delhi-110024.

 

                                      Opposite Parties

CORAM:    Hon’ble Mr. Justice Nawab Singh, President.

                   Mr. Balbir Singh, Judicial Member.

 

Argued by:          Shri Rajesh Kumar, Advocate for complainant.

Shri Manoj Kumar Sood, Advocate for Opposite Parties No.1 and 2.

Shri Jitender Nagpal Advocate for Opposite Party No.3.

Dr. Lopamudra Das-Opposite Party No.4 in person along with Shri Jitender Nagpal, Advocate.

Shri Satpal Dhamija, Advocate for Opposite Party No.5.

                                                   O R D E R

BALBIR SINGH, JUDICIAL MEMBER

        Sri Devendra Kumar Pandey-Complainant, resident of Shivamohan Bhuyan Path, Ward No.6, Nera Circuit House, P.O. Noarth Lakhimpur, District Lakhimpur, Assam, working as Chief Field Manager with Sahara Groups, was suffering from Watering Eyes (Epiphora) for some time. The complainant visited M/s Columbia Asia Hospital, Palam Vihar, Gurgaon (hereinafter referred to as ‘the hospital’) -Opposite Party No.1 on December 20^th, 2013 for check up of his eyes. In the beginning, the complainant was admitted in the hospital on the same day under Dr. Kinshuk Biswas-Opposite Party No.3 from where the complainant was referred to Dr.Lopamudra Das-Opposite Party No.4 for consultation who was stated to be one of the experts in the field of eyes. Dr. Lopamudra Das-Opposite Party No.4 opined that the complainant had a problem in his eyes due to cataract and suggested for urgent operation of his right eye.  The complainant was provided few medicines and visited hospital again on December 22^nd, 2013 for giving sample for blood and urine test to its Path lab as December 23^rd, 2013, date was fixed for operation.

2.                On December 23^rd, 2013 after admission, the complainant was sent to operation theatre for his cataract operation. Soon after the operation was postponed without telling any reason. Later on the complainant and his relatives were told that the operation had been postponed due to a minor injury during injecting anesthesia which resulted bleeding and swelling in the right eye during the process of operation. The complainant was sent back to ward and thereafter was got examined from Dr. Satish Kaul, a physician working in the same hospital. The opposite parties were told by the complainant and his relatives that the complainant had constant pain and massive swelling in his injured eye and there was complete loss of vision. The complainant again visited opposite party No.1-hospital on December 24^th, 2013. On that day, the complainant was taken to Visitech Eye Centre, New Delhi for check up and Dr.Lopamudra Das also accompanied the patient. It was opined by Dr.R.P. Singh at Visitech Eye Centre that retina of his right eye was flat and there was vitreous haemorrhage to eye of the complainant. It was also confirmed that there was glow in the right eye of the complainant. Dr. R.P. Singh, told that treatment would have been possible in case the patient would have been brought in the hospital earlier. Dr. R.P. Singh, opined that there was no hope to regain the vision in his right eye.  On facing this situation, the complainant got himself examined from Dr. Pawan Gupta, Chaudhary Eye Centre and Laser Vision, Delhi, who confirmed the opinion of Dr. R.P. Singh and provided few medicines.  Similarly, the opinion of Dr. R.P. Singh and Dr. Pawan Gupta was confirmed by Dr. Nidhi Gupta, working at Vasan Eye Care at Delhi.

3.                As advised, the complainant again visited the opposite party No.1 on December 27^th, 2013 and on that day Dr.Lopamudra Das handed over copy of progress note dated December 27^th, 2013 (Annexure C-6) to the complainant. Thereafter, the complainant was examined in Narayan Netralaya Bangluru and opinion was given that vision loss in right eye of the complainant is irreversible in nature  and it may affect the left eye also. The complainant lost vision in his right eye and complications mentioned above have arisen due to negligence shown by Dr. Lopamudra Das at the time of eye operation and thereafter. The opposite party No.4 started surgery of right eye without consultation with other expert and hurriedly for commercial purpose. The complainant was operated by a highly inexperienced doctor. The opposite parties also failed to perform physical test to check the condition of the damaged eye. The complainant had to face un-necessary harassment and mental agony and had to suffer big monetary loss due to acts of negligence on the part of opposite parties. The nature and extent of injury in the eye is also wrongly recorded in the progress notes. All it happened due to excessive bleeding and swelling in the right eye.

4.                It is prayed that the opposite parties be directed to pay to the complainant an amount of Rs.25.00 lacs on account of professional monetary loss, an amount of Rs.5.00 lacs as financial loss and an amount of Rs.25.00 lacs on account of physical loss, an amount of Rs.15.00 lacs on account of un-necessary harassment and mental agony and an amount of Rs.1.00 lacs as costs of litigation.

5.                The opposite parties No.1 and 2 filed their joint written version and the opposite party No.3 also filed his separate written version almost with identical pleas. The opposite parties No.1 to 3 have taken plea that the complaint is bad for non-joinder of necessary parties and that the complainant has concealed true and material facts from this Commission. As per version of the opposite parties No.1 to 3 on December 20^th, 2013 the complainant was thoroughly checked up by the opposite party No.4 who is a very experienced doctor having 24 years of Post Graduate Degree and conducted at least 20000 cataract surgeries and at least 30000 Peribulbar injections. The complainant who was suffering from cataract problem after providing few medicines and after general check up and conducting needed lab tests, the complainant was taken to operation threatre on December 23^rd, 2013 at about 10: 30 A.M. After obtaining consent on Annexure OP-1/3 operation process was started. The complainant opted for Peribulbar anaesthesia instead of topical anaesthesia. The complainant was explained in detail about the procedure and risk of injections.

6.                After providing injections, the complainant developed swelling and chemosis in the right eye. A provisional suspicion of Retro Bulbar Haemorrhage was made which is a known complication of this procedure. Immediately, IV injection Mannitol 20% was started in the OT and the surgery was postponed for four days.  Thereafter, Dr. Satish Kaul, was called for second opinion and thereafter on December 24^th, 2013 the complainant was taken to a Visitech Eye Centre, New Delhi by the opposite party No.4 herself and that day, the complainant was examined by Dr.Vinay Garodia and name of Dr. R.P. Singh was wrongly mentioned by the complainant. Dr. Vinay Garodia, opined that there was Vitreous Haemorrhage but retina was flat, which means that there was no detachment of retina and there was no injury as well.  The opposite parties denied for want of knowledge that the complainant was given treatment by Dr. Pawan Gupta or Dr. Nidhi Gupta or he got treatment from Narayana Nethralaya, Bangluru.  It is denied that any negligence was shown by opposite parties No.1 to 3 as well as by any doctor of the opposite party No.1 hospital. It is denied that it is a case of medical negligence on the part of the opposite parties. Moreover, when more than one option is open to a doctor and he adopts one of them. Non-exercise of other options does not amount to negligence unless proved to the contrary. It is prayed that the complaint filed by the complainant be dismissed.

7.                The opposite party No.4 – Dr. Lopamudra Das, filed her separate written version. The pleas taken in the written version by the opposite party No.4 are almost similar to the pleas taken in the written versions filed by opposite parties No.1 to 3. The opposite party No.4 has denied that it is a case of medical negligence on her part or on the part of any other employee or doctor of the hospital. In fact, liability of a doctor arises not when the patient has suffered any injury but when the injury has resulted due to conduct of the doctor which has fallen below that of reasonable care. Negligence of a doctor is not liable for every injury suffered by a patient. Doctor can be held liable for only those injuries which are in consequence of a breach of his duty. Error of judgment can either be a mere error of judgment or error of judgment due to negligence. Mere error of judgment cannot be considered as a breach of duty and care of the doctor. A charge of professional negligence against the medical professional stood on a different footing from a charge of negligence against the driver of a motor car. It is known fact that with the best skill in the world, things sometimes went wrong in medical treatment or surgical operation. A doctor cannot be held negligence simply because something went wrong. 

8.                The opposite party No.4 has taken plea that the complainant was examined by her on December 20^th, 2013 and after providing medicines and completing blood tests etc, the patient was taken to operation threatre in the hospital on December 23^rd, 2013 for operation of cataract in the right eye of the complainant. It was a case of watering eyes which is known as epiphora or watering eyes which is a condition in which there is a overflow of tears up to the face.   Cataract surgery is the removal of the natural lens of the eye. At the time of operation, the patient was given Peribulbar anaesthesia instead of topical anaesthesia after obtaining consent of the patient. Soon after, the patient developed swelling and chemosis in the right eye, thereafter immediately IV injection mannitotal 20% was started in the operation threatre. Regarding further treatment of the complainant, plea of the opposite party No.4 corroborates the plea taken by the opposite parties No.1 to 3 in their written version. No other doctor has given opinion that there was negligence or fault of any type regarding treatment given to the complainant during the period the patient remained in the hospital-opposite party No.1. In this way, the opposite party No.4 is not responsible in any way in connection with ailment of eyes of the complainant. The complainant is not entitled to receive any amount as claimed in the complaint. It is prayed that the complaint filed by the complainant be dismissed with cost.

9.                Sri Devendra Kumar Pandey-complainant has tendered into evidence his affidavit Exhibit CW-1/A alongwith other documents i.e. copies of receipts Exhibit C-1, copies of Medical Report Exhibit C-2, Payment Receipt Exhibit C-3, Report of Visitech Eye Centre Exhibit C-4, Report of Chaudhary Centre and Laser Vision Exhibit C-5, Report of Vasan Eye Care Exhibit C-6, Progress Note Exhibit C-7 and Report of Narayana Nethralaya Exhibit C-8. 

10.              The Opposite Parties No.1 and 2 in their evidence have tendered affidavit of Dr. Ashish Chandra (Exhibit OPW-1/A) and other documents i.e. Resolution Exhibit OP-1, Progress Note dated 20.12.2013 Exhibit OP-2, Consent Exhibit OP-3, Progress note dated 23.12.2013 Exhibit OP-4, Discharge Summary Exhibit OP-5 and Progress Note dated 27.12.2013 Exhibit OP-6.  The opposite party No.4 has tendered affidavit of Dr. Lopamudra Dass as Exhibit OPW2/A. Dr. Lopambudra Dass was examined as OPW-2. Dr. Kinshuk Biswas appeared as OPW3.  United India Insurance Company Limited-Opposite Party No.5 tendered into evidence affidavit of Parveeen Kumar Gupta along with documents Exhibits OP6 (Policy No.041200/46/13/3500000663 and Exhibit OP-7 (Policy No. 041200/46/13/3500000245.

11.              We have heard learned counsel for the parties and have perused the case file.

12.              As per version of the complainant on December 20^th, 2013, he visited Columbia Asia Hospital-Opposite Party No.1 in connection with treatment of his right eye.  The complainant was suffering from Watering Eyes (Epiphora).  The complainant was admitted in the hospital on the same day under the treatment of Dr.Kinshuk Biswas-Opposite Party No.3 from where on the same day, the complainant was referred to Dr. Lopamundra Das-Opposite Party No.4  for consultation and for further treatment. After necessary check up and conducting required tests of blood, urine etc. Dr. Lopamudra Das diagnosed cataract disease in the right eye of the complainant and suggested for urgent cataract operation of his right eye.  On December 23^rd, 2913 after admission the complainant was taken to operation theatre for his cataract operation at 10:30 a.m. after obtaining consent (Exhibit OP-3), operation was started. As per version of the opposite parties, the complainant opted for Peribulbar anaesthesia instead of topical anaesthesia. 

13.              As per version of the opposite party No.4 before providing Peribulbar anaesthesia, the complainant was explained in detail about the procedure and risks of injection. As and when Peribulbar anaesthesia was provided, the complainant developed swelling and chemosis in his right eye. A provisional suspicion of Retro Bulbar Haemorrhage was made which is a known complication of this procedure. Facing this situation, admittedly, Dr. Lopamudra Das gave IV injection Mannitol 20% in the operation threatre and surgery was postponed for four days. It is also admitted fact that soon after this problem, the complainant was examined by Dr. Satish Kaul as well as Dr. Kinsuk Biswas, who were satisfied with the treatment provided by Dr. Lopamudra Das.  The patient was discharged on the same day at 7:00 P.M.  Dr. Lopamudra Das in her statement as OPW-2 has stated that she herself telephonically talked to the patient and patient was taken to Visitech Eye Centre, New Delhi seeking advice of retina expert.

14.              The complainant was examined by Dr. Vinay Garodia, Visitech Eye Centre, New Delhi, who after completing required tests detected vitreous haemorrhage and opined that there was Retina detachment as Retina was flat.  Dr. Vinay Garodia, opined to continue the same treatment as was being given earlier. Affidavit of Dr. Vinay Garodia (Exhibit OPW3/A) has also been tendered in evidence regarding treatment given by him to the complainant.  This version of the complainant is found false that he was given treatment by Dr. R.P. Singh. The complainant also admitted in his affidavit and statement that he came to know later on that he was examined by Dr. Vinay Garodia.  In this way, Dr. Vinay Garodia was also satisfied with the treatment being given to the complainant.

15.              As per version of the complainant, he thereafter got himself examined from Dr. Pawan Gupta, Chaudhary Eye Centre and Laser Vision, Delhi and Dr. Nidhi Gupta, Vasan Eye Care, Hospital, Delhi.  The complainant could not produce any documentary evidence on the file to prove that problem arose in the right eye of the complainant due to any act of negligence on the part of opposite party No.4 – Dr. Lopamudra Das.  This version of the complainant was not found correct that he was examined by Dr. R.P. Singh.  Complainant was examined by Dr. Vinay Garodia but in his affidavit (Exhibit OPW3/A) tendered in evidence in this case this witness has mentioned that Dr. Lopamudra Das had discussed the case with him and he opined that there was Vitreous Haemorrhage but the retina was flat. Meaning thereby, there was no detachment of Retro Bulbar Haemorrhage as a known complication and no surgical intervention was warranted at that stage.  Dr. Pawan Gupta and Dr. Nidhi Gupta, have not been examined by the complainant or the opposite parties during the proceedings of this complaint. 

16.              From the pleadings and record on the file, it clearly appears that Dr. Lopamudra Das had not done any act of negligence during the treatment given to the complainant.  The only fault on the part of Dr. Lopamudra Das is mentioned by the complainant that she gave Peribulbar anaesthesia which caused problem in the eyes of the complainant.  As per version of the complainant, he was not facing any problem regarding eye-sight and he was facing problem only of watering eyes. The problem arose as and when Peribulbar anaesthesia was given to the complainant by the opposite party No.4-Dr. Lopamudra Das. The complainant could not produce any documentary or oral evidence to prove that it was a wrong step on the part of Dr. Lopamudra Das to give Peribulbar anaesthesia injection before starting injection. Dr. Lopamudra Das also admitted that problem arose after using Peribulbar anaesthesia due to which there was swelling in the right eye and he thought it proper to postpone the operation.  As and when Dr. Lopamudra Das faced this problem, she immediately provided IV injection Mannitol 20% to the patient and postponed the operation. The complainant could not make it clear that instead of Peribulbar anaesthesia, what alternative was with Dr. Lopamudra Das. 

17.              Now this Commission is required to give findings as to whether the decision of Dr. Lopamudra Das to provide Peribulbar anaesthesia was an act of negligence on her part or not?

18.              During the course of arguments, learned counsel for the complainant has argued that in a case of involving medical negligence, once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts on to the hospital or the attending doctor and it is for the hospital to satisfy the Court that there was no lack of care and diligence.  In support of his this contention; learned counsel for the complainant placed his reliance upon two decisions of Hon’ble Supreme Court in Civil Appeal No.4119 of 1999, Nizam Institute of Medical Sciences versus Prasanth S. Dhananka & Ors., decided on May 14^th, 2009 and Criminal Appeal Nos.1191-1194 of 2005 ‘Malay Kumar Ganguly versus Dr. Sukumar Mukherjee and others’ decided on August 07^th, 2009.  In fact, this contention of the learned counsel for the complainant, mentioned above is on the basis of observation made in case law Nizam Institute of Medical Sciences versus Prasanth S. Dhananka & Ors (Supra). Same type of findings were given by the Hon’ble Supreme Court in case law Malay Kumar Ganguly versus Dr. Sukumar Mukherjee and others (Supra).  As per facts of case law referred above, the patient was not referred to a Dermatologist as she had skin rashes all over her body.  Diagnosis of the patient that she was suffering from angioneurotic oedema with allergic vasculitis, was wrong. Moreover, patient was given a dose of 80 mg Depomedrol injection twice daily for the next three days and continued treatment on the same line.  Moreover, steroid was unnecessary used at the time of treatment by the doctor.  Apart from it, findings were also given that negligence is the breach of a duty caused by the 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. We find cited case laws above are not of much help to the complainant as facts and circumstances of the case in hand are somewhat different from the facts and circumstances of the above cited case laws.

19.              We have closely perused the above cited case laws.  The cited cases laws above are of not help to the complainant in this case as facts and circumstances of the case in hand are quite different.  As per facts of the case in hand, except plea taken in the complaint and statement of the complainant in the shape of his affidavit, there is no evidence on the file to establish that Dr. Lopamudra Das or any other doctor or employee of Columbia Asia Hospital-Opposite Party No1 has shown negligence at the time of treatment of the complainant.  None of the doctors by whom the complainant was examined in Columbia Asia Hospital and any other hospital, as mentioned above, has given opinion that the complainant faced problem in his eyes due to negligence on the part of doctor Lopamudra Das.  No expert witness has been examined by complainant- Devendra Kumar Pandey; how can say that wrong medicines or the wrong treatment was given to the complainant. Dr. Satish Kaul, Dr. Kinshuk Biswas, and Dr. Vinay Garodia have given their opinion that correct treatment was given by giving injection of Peribulbar anaesthesia and thereafter IV injection mannitotal 20% when there was swelling on the eye of the complainant. Even Dr. Pawan Gupta and Dr. Nidhi Gupta did not give opinion that there was any negligence or fault on the part of Dr. Lopamudra Das regarding treatment given to the patient. Moreover, the complainant has taken wrong plea that he was examined by Dr. R.P. Singh.

20.              In support of his contention, learned counsel for the complainant also placed his reliance upon other two decisions of the Hon’ble Supreme Court of India in Civil Appeal No.2641 of 2010 titled as V. Kishan Rao vs. Nikhil Super Speciality Hospital & another, decided on 08.03.2010 cited as 2010(2) RCR (Civil) 929 and Civil Appeal No.4025 of 2003 titled as Smt. Savita Garg vs. The Director, National Heart Institute, decided on 12.10.2004.

21.              We have closely perused the above cited case laws also. As per facts of case law referred above in V. Kishan Rao vs. Nikhil Super Speciality Hospital & another, (Supra), the patient was given treatment of typhoid whereas patient was suffering only from malaria fever.  In the death certificate issued by Yashoda Hospital also it was mentioned that the patient died due to cardio respiratory arrest and malaria.  In this way, wrong treatment was given to the patient.

22.              In case law referred above Smt. Savita Garg vs. The Director, National Heart Institute (Supra), findings were given by Hon’ble Supreme Court that once the allegation is made that the patient was admitted in a particular hospital and evidence is produced to satisfy that he died because of lack of proper care and negligence, then the burden lies on the hospital to justify that there was no negligence on the part of treating doctor or hospital. In such a situation, the hospital which is in better position to disclose that what care was given and what medicine was administered to the patient, it is the duty of the hospital to satisfy that there was no lack of care or diligence.

23.              After close perusal, we find that the above cited case laws are also of no help to the complainant in this case as in this case except statement of the complainant no other evidence has been produced which may be enough to shift burden of proof on the opposite parties. Moreover, evidence adduced by the opposite parties as discussed earlier in this order is sufficient to explain each and everything under what circumstance what particular medicine was provided to the complainant and that it is not a case of negligence on the part of the opposite parties.

24.              During the course of arguments, learned counsel for the opposite parties No.1 to 4 argued that the complainant has failed to prove any act of negligence and carelessness on the part of Dr. Lopamudra Das; Dr. Kinshuk Biswas or any other doctor or official of Columbia Asia Hospital.  The treatment was given to the patient by Dr. Lopamudra Das as per her wisdom, long experience in the field of medical surgery and in such type of ailment it was not expected that Peribulbar local anaesthesia given to the patient will create problem and swelling in the eyes of the complainant. Other doctors also, including Dr. Vinay Garodia, Dr. Kinshuk Biswas and Dr.Nidhi Gupta, also opined that no fault or negligence was committed at the time of providing treatment to the complainant in the hospital of opposite party No.1.

25.              Learned counsel for the opposite parties No.1 to 4 argued that sometimes at the time of treatment of the patient, the patients have to face un-expected results. Learned counsel for the opposite parties placed reliance upon decisions of Hon’ble Supreme Court of India in case law Jacob Mathew Vs. State of Punjab and another, (2005) 3 CLT 358 (SC), Kusum Sharma & others vs. Batra Hospital & Medical Research Centre & Others, 2010(1) CPJ 29 (SC); Nizam Institute of Medical Sciences vs. Prasanth S. Dhananka and others, 2009(3) CLT 430 (SC).

26.              In case law Jacob Mathew vs. State of Punjab and another (Supra), Hon’ble Supreme Court observed as under:

 “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 acceptable to the medical professional of that day, he cannot be held liable for negligence merely because a better 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.  Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.”

27.              Hon’ble Supreme Court in case law Kusum Sharma & others vs. Batra Hospital & Medical Research Centre & others (Supra) it was held as under:-

“(I)     Negligence is the breach of a duty exercised 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 is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
3. The medical professional is expected to bring 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.
4. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
5. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
6. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
7. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
8. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck.
9. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
10. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
11. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.”

 

28.              After close perusal, we find the case laws cited by the learned counsel for the opposite parties fully support the version of the opposite parties No.1 to 4.

29.              From the facts and circumstances of this case, it clearly appears that treatment was given to the patient by Dr. Lopamudra Das and other doctors of the hospital to the best of their skill and ability. Merely because due to Peribulbar anaesthesia, problem arose in the right eye of the complainants, findings cannot be given that all it happened due to carelessness and negligence on the part of Dr. Lopamudra Das or any other doctor or employee of Columbia Asia Hospital.  

30.              There is no doubt of any type in this regard that medical profession is a noble profession. People involved in the medical profession, more particularly the doctors command respect in our Society.  At the same time, expectations of the public persons are also much more from the doctors than the other institutions and sections of the Society. In fact, a doctor cannot give complete assurance and guarantee to save life of a patient. Certainly for a patient process of treatment is a question of life and death. In this way, a doctor is required to be more and more careful at the time of treatment of a patient. A little negligence on the part of a doctor can make life of a patient hell. A doctor can help a patient by providing him best possible medicines/treatment.  Sometimes, mistake may also be possible on the part of a doctor also at the time of treatment. After all, a doctor is also a human being. Working of a doctor cannot be expected like a machine or a computer.

31.              United India Insurance Company Limited-Opposite Party No.5 was allowed to be impleaded as party to the proceedings to this complaint vide order dated January 29^th, 2016. Version of the complainant is that the opposite party No.1 Columbia Hospital as well as its doctors including the opposite parties No.3 and 4 were provided insurance policy bearing No.041200/46/13/35/00000663 regarding the period from April 29^th, 2013 to April 28^th, 2014. The opposite party No.5 could not point out that any term and condition of the insurance policy was violated by the insured-opposite parties/doctors.  Anyhow, much discussion is not needed in this regard as the Insurance Company can be held liable to make payment to the complainant only in case findings are given that the problem arose in the eyes of the complainant due to any act of negligence on the part of the opposite parties/treating doctors. In this case, findings have already been given that the opposite parties have not done any such act of carelessness or negligence at the time of treatment of the patient. As the opposite parties No.1 to 4 are not liable to pay any amount of compensation to the complainant, findings can be safely given that the Insurance Company is also not liable to pay any amount to the complainant.

32.              As a result as per discussions above in detail, the complainant has failed to prove that the opposite parties No.1 to 4 have committed any act of carelessness and negligence causing damage to the eyes of the complainant.  Resultantly, we find no merit in the complaint and the same stands dismissed.

 

 

Announced: 11.08.2017

(Balbir Singh) Judicial Member

(Nawab Singh) President

 

CL