DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

WEST TRIPURA :  AGARTALA

 

 

CASE   NO:   CC- 188  of  2021

 

 

Sri Ajit Chakraborty,

S/O- Sri Harendra Chakraborty,

Resident of Indranagar, Kunjaban,

P.O. & P.S. Abhoynagar, 

District- West Tripura- 799005.    ...........Complainant.

 

 

-VERSUS-

 

 

1. Dr. Abhijit Ray,

 

2. ASHA CHILD CARE

 

    __________PRESENT__________ 

 

  SRI GOUTAM DEBNATH

  DISTRICT CONSUMER  

DISPUTES REDRESSAL COMMISSION,

      WEST TRIPURA, AGARTALA. 

 

 

SRI SAMIR GUPTA

MEMBER,

  DISTRICT CONSUMER 

 DISPUTES  REDRESSAL COMMISSION,

WEST TRIPURA,  AGARTALA. 

 

 

C O U N S E L

 

For the O.Ps     :  Sri Paramartha Data,

 

 

 

F I N A L    O R D E R

1. Sri Ajit Chakraborty (here-in-after called “the Complainant”) has filed this complaint against (1)Dr.Abhijit Ray, Eye specialist and Phaco Surgeon of Agartala, West Tripura(here-in-after called “the O.P. No.1”) on the allegation of medical negligence while conducting surgical operation on his eye and against (2)The Asha Child Care & Nursing Home & Research Centre, Palace Compound, Agartala, West Tripura(here-in-after called “the O.P. No.2”) for not issuing voucher against the fees paid to the Nursing Home for conducting eye operation.

 

1.1 The allegation against the O.P. No.1 is that on 20.07.2020 the complainant felt irritation in his right eye and visited the O.P. No.1 who prescribed some medicine. On 16.01.2021 the complainant was feeling normal but visited the O.P. No.1 on 16.01.2021 as he felt some problem in his right eye. As per advise of O.P. No.1 the complainant underwent some biochemistry test and on the basis of those tests the O.P. No.1 had undergone surgical operation on 24.01.2021 conducted by the O.P. No.1 in the Nursing Home i.e., the O.P. No.2. On the very next day the complainant felt pain in his eye and consulted O.P. No.1 over telephone when O.P. No.1 prescribed Paracetamol tablet.  

 

1.2 On 30.01.2021  the complainant visited O.P. No.1 again when the O.P. No.1 opined that his right eye was damaged due to surgical infection. At this juncture the complainant visited Sankaradeva Nethralaya, Guwahati for better treatment on 01.02.2021 wherein the complainant was diagnosed to post Surgical Endopthalamitis i.e., bacterial infection due to using of contaminated surgical instruments. Consequently on 03.02.2021 went for surgery of evisceration of his right eye as per advise of the doctors of Sankara Devalaya Nethralaya. As such the O.P. No.1 is guilty of medical negligence and liable to pay compensation as claimed by the complainant.

 

2. The O.P. No.1 in written objection pleaded inter alia that utmost care was taken at the time of operation including other 5 patients on that day. But the complainant got post operative infection.

2.1 On 20.07.2020 the complainant visited the Private chamber of O.P. No.1 and was diagnosed as Immature Senile Cataract in both eye i.e., the right eye more than the left eye and accordingly he was advised to go for cataract surgery of right eye. The Complainant was given option either to go for operation in the G.B Hospital or in Asha Child Care & Nursing Home & Research Centre to which the complainant opted for the Nursing Home. 

2.2 Operation date was fixed on 25.07.2020 but the complainant after the lapse of 6 months visited the O.P. No.1 on 16.01.2021 with irritation problem and very poor eye sight.

2.3 Necessary investigation was done and date was fixed for surgery on 23.01.2021 but later on considering the Birthday of Netaji Subhsah Chandra Bose on 23rd January date was rescheduled on 24.01.2021 apprehending traffic jam in Agartala. Accordingly on 24.01.2021 Phaco Surgery was done maintaining hygiene along with other patients. All the patients including the complainant reported proper eye sight after the operation and the complainant and other patients were released by supplying copy of standard instruction issued for such patients in printed form by the department of eye, G.B. Hospital, Agartala and was demonstrated how to clean the eyes and put eye drops and proper guideline were issued to avoid trauma and post operative infection and put black goggles at least for 7 days and caution for post operative initial 7 days were crucial. On the next day morning the son of the complainant contacted O.P. No.1 over telephone and informed some pain in the eye of the complainant hence, analgesic was advised and with further advise to visit O.P. No.1 if problem persist.

2.4 After a week ie.., on 30.01.2021 the complainant visited the O.P. No.1 and on examination the O.P. No.1 noticed the eye was discharging water which was suggestive of infection due to negligence post operative care by the complainant. 

2.5 The O.P. asked the complainant why the complainant did not contact the O.P. No.1 early to which the complainant informed that up to 4th day of operation he was quite O.K. and from the 5th day midnight water was discharging. This could happen due to touching his eyes by his fingers resulting contamination and injury of his eyes. More so the patient was diabetic which require aggressive precaution. 

2.6 Some medicines were prescribed at that stage with advise to attend higher eye care Centre for which the complainant visited Sankaradeva Nethralaya. The was no negligence on the part of the O.P. No.1.

 

3. The O.P. No.2 also submitted separate written objection.

4. The complainant and the O.P. submitted evidence on affidavit.

 

5. The complainant prayed before this Commission to issue summon upon Dr. Manab Jyoti Barman of Sankaradeva Nethralaya of Guwahati.

After hearing Learned Predecessor President of this Commission and other Learned Members issued summon upon Dr. Barman. Since then the case had been dragging. As such on the basis of consensus of Learned lawyer of both parties by order dated 10.02.2023 interrogatories as drafted by Learned Counsel of the complainant were sent to Dr. Barman for reply. Accordingly, Dr. Manab Jyoti Barman answered the interrogatories on affidavit and communicated to this Commission.

 

 

5.2 Accordingly Dr. Manab Jyoti Barman on affidavit answered the queries No.2 that he attended the complainant at Sri Sankar Deva Nethralaya, Guwahati on 01.02.2021. In answer to query no.3 Dr. Barman stated that he detected Post Surgical Endophthalmitis of right eye of the complainant. In reference to query no.4 he stated that it is a rare complication of cataract surgery with its reported incidence in India ranging from 0.02% to 0.09% . In answer to query no.5 he stated that this complication can occur due to invasion microbial flora, bacteria or fungi from the adnexa and environment during the surgery but it can also happen during the early post operative period if ocular hygiene is not maintained. In answer to the next query he stated that post operative endophthalmitis is known to caused by use of contaminated instrument, solutions, drapes, dressing, globes or due to retention of foreign material  in the eye or due to retention of components of unsuitable irrigating fluid. However, it can also occur if ocular hygiene is not maintained during the early post operative period - from exposure to contaminated material that is dust, water, cloth or improper application of eye drops. After receiving this report  while hearing argument it came to the notice of this Commission that operation was done in the right eye but wrongly in the affidavit Dr. Barman mentioned left eye while drafting the affidavit may be by the typist who typed the affidavit as such vide order dated 28.11.2023 Dr. Barman was asked to clarify in which eye the surgical operation was actually done. As such by subsequent affidavit sweared on 10.01.2024 Dr. Barman clarified  that operation was done in the  right eye.

 

6. Hearing argument the following pints are taken up for discussion and decision:-

7. During the argument and in the complaint also the complainant mentioned that infection occurred and consequently the eye of the complainant got damaged due to use of contaminated surgical instrument which is a gross medical negligence.

7.1 As per written objection and evidence as argued by the learned counsel of the O.P. No.1 the complainant himself was guilty as the complainant was advised to undergo operation on 25.07.2020 but the complainant contacted the O.P. No.1 after 6 months  on 16.01.2021 with irritation and poor vision of his right eye. However, after successful operation the complainant was supplied with the standard guideline to follow during post operative period as printed by the Eye Department of the Agartala Government Medical College & GBP hospital and was instructed to put black goggles at least for 7 days. However, on the next day morning the son of the complainant informed the O.P. doctor that his father was facing some pain in the operated eye. Consequently the O.P. doctor advised to take analgesic as post operative pain for ½ days is common with further advise that if the pain persists the complainant must visit the chamber of doctor , the O.P. No.1 or the O.T. of the GB Hospital immediately. But the complainant did not contact the O.P. doctor. After about a week on 30.01.2021 the complainant visited the chamber of O.P. No.1 and the O.P. No.1 found that the operated eye was discharging water and the eye got infected which was certainly due to faulty post operative care. The O.P. doctor asked the complainant as to why the complainant did not visit the O.P. doctor early, to which the complainant that even 3 days back that is up to 4th day of operation the complainant had no problem and on the 5th day following the operation he might have touched his eyes by his finger resulting contamination and got some injury during sleep and since then he has been facing problems in his eye. Further the complainant was diabetic for which aggressive precaution was required during post operative period. Now the complainant informed that as his son was busy otherwise he could not visit the O.P. doctor on the next day, then the O.P. doctor advised him to visit a higher eye care centre after prescribing some medicine as it was a case of post operative endophthalmitis.

7.2 According to the evidence of expert that is Dr. Manab Jyoti Barman of Guwahati such problem can happen due to the use of contaminated instrument, dressing, globes etc. and it can also happen if ocular hygiene is not maintained during the early post operative period from exposure to contaminated material that is dust, water, cloth, improper application of eye drops etc. therefore, both the possibility are there. In such a situation considering the fact that the complainant first of all caused a delay of 6 months in undergoing operation and thereafter also due to the business of his son he could not visit the O.P. doctor in time and was feeling O.K. till the 5th day after the operation, it can not be ruled out that proper post operative care was not taken by the complainant and the complainant was not very serious about his eyes, more so, considering his age and that he was 60 years old and he was diabetic. Therefore, this is the case where benefit of doubt should go to the O.P. doctor or in other standard also preponderance of probability lies in favour of the O.P. doctor.  We can not conclude that the O.P. doctor was negligent in attending the patient during operation period or during post operative period as well.

7.3 Hon'ble Supreme Court in M.A. Biviji Vs. Sunita and Ors reported in 2024 (2) SCC 242 was pleased to expound that medical negligence can be decided on the basis of 2 findings namely (i) either he was not possessed of requisite skill which he professed to have possess or (ii) did not exercise with reasonable competence in a given case, skill which he possess. Standard of proof would be that of an ordinary competent person exercising ordinary skill in that profession. 

7.4 Hon'ble Supreme Court was further pleased to propound that a high threshold limit must be met to ensure that the doctors are not scared of possible prosecution. On the other hand doctors need to establish that they had followed reasonable standards of medical practice.  

7.5 In the case at hand considering the evidence and the evidence of Dr. Manab Jyoti Barman, sent against the interrogatories of the complainant and considering the written an oral argument, we are of the considered opinion that the complainant has not established a case of medical negligence against the O.P. doctor.

8. The points are decided accordingly.

9. Hence, the case stands dismissed, however, without cost.    

10. Supply copy of this Final Order free of cost to the parties.   

  Announced.

 

 

 

SRI  GOUTAM DEBNATH

PRESIDENT,

DISTRICT CONSUMER  DISPUTES 

REDRESSAL COMMISSION,

WEST TRIPURA,  AGARTALA

 

 

 

 

SRI SAMIR GUPTA,

MEMBER,

DISTRICT CONSUMER  DISPUTES 

REDRESSAL COMMISSION,

WEST TRIPURA,  AGARTALA