BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION
AT HYDERABAD.
C.C. No. 64 of 2006
Between:
Smt Mullapudi Raja Kumari
W/o M. Ram Mohan,
Age: 55 years, R/o 409,
MRC Residency, Ramachandraopeta
Eluru- 534 002 *** Complainant
And
Dr. Nadella Vishnuvardhan, M.S.D.O.,
Sankara Nethra Chikitsalaya
Near Venkateshwara Swamy Temple,
Ramachadraopeta,
Eluru- 534 002. *** Opposite Party
Counsel for the Complainant: M/s. I. Ravi Kanth.
Counsel for the Opposite party: M/s. V. Sankara Rao
CORAM:
HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT
&
SRI SYED ABDULLAH, MEMBER
MONDAY, THIS THE EIGHTEENTH DAY OF JANUARY TWO THOUSAND TEN
Oral Order: (Per Hon’ble Justice D. Appa Rao, President)
*****
1) This is a complaint filed against the doctor claiming compensation of Rs.24,80,000/- under various heads with interest and costs.
2) The case of the complaint in brief is that she underwent cataract operation inthe right eye on 27.2.2004 conducted by the opposite party doctor (hereinafter called ‘doctor’). She paid Rs.6,000/- for lense and Rs.4,000/- towards fee. On 4.2.2006 she underwent another cataract operation for the left eye. While so, no consent was taken from her before conducting the operation. She was advised to go home immediately after the surgery directing her to come for check up after 5 days. When she had developed pain and water was dribbling she went to the doctor who changed medication and asked her to come after two days with assurance that there was no complication. When she could not get any relief, again she went to him. He informed that she developed infection and advised her to go to Shankara Netrayalaya at Chennai with a reference letter. She was distressed with the last minute diagnoses of the doctor who failed to conduct necessary tests, viz, checking the eye for tensions, failure to give injection in the eye, find out whether the liquid was passing freely in the lachrymal duct etc. She was discharged immediately after the operation, contrary to rules and guidelines framed by the medical Council. This amounts to professional misconduct and gross negligence. Dr.Bhaskar Srinivasan of Shankara Netralaya opined that there was fungal endopathalmitis, where fungal fimalments were seen. Later she underwent Scleral Patch Graft along with Therapeutic penetrating Keratoplasty followed by Corneoscleral Patch Graft on 15.2.2006. Again she underwent Scleral Patch Graft in the area of Dehiscene on 28.2.2006. It was found that the graft started getting oedematous Though it revealed the posterior segment was relatively free from any infections, however the pressure in the eye did not build up. The Globe started shrinking. Later it was found that Corneoscleral patch graft had failed. The eye look prephthisical. On 18.7.2006 when she was examined it was found that left eye sutures were loose and as such they were removed. She lost vision in the left eye. She spent about more than Rs. One lakh for travel, boarding, lodging and medical expenses etc. All this was due to negligent operation on the left eye conducted by the doctor. This was infected during surgery. He did not advise her properly. She became ill and lost vision. Therefore she issued legal notice for which the doctor gave reply with false averments. Therefore she filed the complaint claiming Rs.15 lakhs towards compensation for permanent loss of vision in left eye, Rs.5 lakhs towards mental agony, Rs.1.50 lakhs towards medical treatment expenses, Rs.one lakh towards travelling, boarding and lodging expenses, Rs.2 lakhs towards mental tension and agony and Rs.30,000/- towards costs, in all Rs.24,80,000/-.
3) The doctor resisted the case while denying each and every averment made by the complainant. He admitted that he conducted the operations on both right eye as well as left eye as alleged. He did not take any fee as she is related to him. After conducting necessary tests and after taking consent on 4.2.2006 cataract operation was conducted, directing her to come on 5.2.2006 for dressing as her house is hardly 200 yards from his clinic. However, she did not visit on 5.2.2006 as advised. She came on 6.2.2006 complaining that water was secreting from her left eye. There upon he administered antibiotics and advised to take post operative care and gave strict instructions to her. He was not aware whether she followed those instructions scrupulously. She was more than 55 years by then. When he questioned as to the increasing of water and redness in the operated eye, she stated that there was domestic quarrel and she rubbed and washed her both eyes with tap water. Thereupon he examined her, suspected the symptoms of infection and changed the medicine. He further advised her to go to Sankar Netrayalaya, Chennai or L.V.Prasad Eye Institute at Hyderabad and collect reference letter of her choice. She came to him two days later i.e., on 9.2.2007 complaining increasing watering and pain in the operated eye. He examined and found symptoms of Endophthalmitis as she did not follow his advise. He was not aware as to what happened subsequently till he received legal notice. The case sheet shows that all the tests were conducted and they were found to be normal. Required tests were conducted before the operation. He not only conducted operation to her right eye in 2004 but also to her father. The patient was discharged on the same day as per her requests, and that too when her house was very nearer to his clinic. It was neither contrary to rules nor guidelines formulated by the medical Council. He found fungus formation. In good faith he referred her to one of the best hospitals for better treatment.
Endophthalmitis is a post operative complication. The line of treatment as well as operation was explained to him. In fact she was aware of the procedure as she got her right eye operated two years ago. It was only to extract money from him, she filed the complaint. The doctors at Shankar Narayana Hospital who conducted subsequent operations did not mention anywhere that there was negligence on his part when he had conducted the operation on the left eye. The allegation that she had lost vision on the left eye is not true. The certificate issued by the Medical Board shows that disability was partial. The medical literature particularly, written by Jade J.Karshi on Clinical Ophthalmology – ‘A systematic approach’, mentioned that this complication would occur one in 1,000 cases and the source of infection cannot be identified with certainty. He is Senior Ophthalmologist with standing of 20 years. The Hospital is fully equipped with high quality equipment as per the guidelines framed by the medical Council. Her own negligence resulted in this complication. The compensation claimed is ridiculously high and therefore prayed that the complaint be dismissed with costs.
4) The complainant in proof of her case filed her evidence and got Exs.A1 to A17 marked, while the opposite party doctor filed his own affidavit evidence and got Exs.B1 to B5 marked.
5) The points that arise for consideration are:
i) Whether there was post operative negligence on the part of
opposite party doctor?
ii) Whether the complainant is entitled to any compensation?
iii) To what relief?
6) It is an undisputed fact that the complainant underwent cataract operation for the right eye on 27.2.2004 and left on 4.2.2006. Both operations were conducted by the opposite party doctor. While the first operation was successful in the sense she had complete restoration of eye sight the second operation, now in dispute, landed in complications. It may be stated that the cataract operation to the left eye was also successful, however, she developed post operative complications in the sense there was watering and the eye became red. For the operation that was conducted on 4.2.2006 she was discharged immediately with an advise to come on the next day for dressing. However, the fact remains that she did not visit on 5.2.2006 but went to him on 6.2.2006 complaining watering and red eye. He alleged that this complication was due to her own negligence as she had rubbed her eye and washed her both eyes with tap water. Therefore she might have contacted fungal infection. At any rate on 7.2.2006, when she came after examining her, he found that she had developed fungal infection. He directed her to go to a better institute either at Hyderabad or Chennai for which he gave reference letter. She visited Shankara Netralaya, Chennai on 10.2.2006 where they noticed that she had contacted fungal Endophalmitis and presence of Sclera Necrosis at the site of the section. Accordingly, she underwent scraping. Later, she underwent Scieral Patch Graft along with Therapeutic Penetrating Keratoplasty. She also underwent corneoscleral patch graft on 15.2.2006. Postoperatively for one or two days she was doing fine. However, she developed a gape at the site of superior sclera junction and there was ectasia with prolapsed of uveal threaten.
It was decided to take her up for a repeat surgery for sclera patch graft in the area of dehiscence, which she subsequently underwent on 28.2.2006. Postoperatively, she was doing fine. Later they found the anterior chamber was formed. There was no hypophyon. There was no evidence of infection in the graft. However later the graft started getting oedematous. The finger tension was on the softer side. Ultrasound examination was done on 9.3.2006. It revealed the posterior segment to be relatively free of any infection. However the pressure in the eye did not build up and the size of the globe started shrinking.
When she was subsequently seen on 25.4.2006 they found the corneoscleral patch graft had failed. There was an area of vascularisation. Anterior chamber was shallow but formed and the eye was aphakia. The finger tension was on the softer side in the left eye. The eye looked prephthisical. There was no evidence of infection. The patient again underwent an ultrasound, which revealed the axial length had decreased and the eye looked prephthisical. The patient was asked to come back for review in three month’s time.
She was subsequently seen on 18.7.2006, when the vision in the right eye was 6/6;N6 and in the left eye was hand movements close to face. Slit lamp examination of the right eye was normal. Slit lamp examination of the left eye revealed the anterior chamber to be flat, the corneal sutures were found loose and they were removed. Applanation tension in the right eye was 16 mmHg. Finger tension of the left eye was on the softer side. Fungus examination of the right eye was normal and in the left eye there was no view. The left eye was prephthisical.
It was mentioned that the poor prognosis of vision in the left eye was explained to the patient. The patient was asked to review back in six month’s time.
7) It is not known as to what happened subsequently. The fact remains that on 11.11.2006 she subjected herself to Dist. Medical Board, West Godavari for evaluation where they found that there was 30% disability on the left eye. Immediately she gave registered notice on 27.9.2006 alleging loss of total vision on the left eye sight claiming compensation for which the doctor gave reply in Ex.A7 refuting imputation of negligence on him. Thereafter on 16.12.2006 the complainant alleging negligence on the part of doctor filed the complaint claiming compensation attributing loss of partial vision due to negligence of doctor.
8) He in turn claims that there was contributory negligence on the part of complainant in not taking follow up treatment post operatively. She did not use the medication properly. She washed her eyes with tap water which could have been contributed to fungal infection. This is pleaded as early as possible immediately after the complainant sent her legal notice.
9) At the earliest in Ex.A6 notice she alleged that “the first week of February, 2006, when my client came to you for consultation, you tested my client’s left eye and diagnosed that the left eye has to be operated for cataract, and fixed the operation date for 4.2.2006. That my client was tested for B.P., Sugar, Urine at Purnima Labs on the morning of 4.2.2006, and all reports showed normal. That you operated for cataract on my clients left eye at 4 p.m. int he evening on 4.2.2006. That the left was covered with a plastic cap. That on the very next day i.e., 5.2.2006, you changed the medicines and found that my clients left eye was also very red in colour, and she had complained for pain. Again on 7.2.2006, you changed the medication and advised my client to use them for two days, and reassured her that there was nothing wrong, and her eyesight would be restored in the left eye. That on 9.2.2006, when my client visited you for check up, you informed my client that there was a fungus formation and she has to be taken either to Chennai, Shankara Nethralaya or Prasad Labs in Hyderabad and gave a letter for the same”.
What all pleaded was that she had developed infection due to negligent treatment of the doctor. She further alleged that “ it was only due to your negligence that my client is suffering immensely. That due to the deficiency on your part in rendering service, you have caused my client mental tension, heavy medical expenditure, ill health, loss of vision in left eye, pain, agony for which your are bound to compensate my client by making a payment of Rs.20 lakhs ( Rupees Twenty lakhs) which is just and reasonable. Hence, I hereby call upon you to pay the amount of Rs.20 lakhs with interest at 24% per annum till date of actual payment and Rs.2,000/- towards notice charges, within 15 days of receipt of this notice, failing which my client shall be constrained to take legal action against you holding responsible for the costs and consequences thereof”. Later she enhanced the compensation to Rs.24 lakhs, obviously to invest jurisdiction on this Commission.
10) Whatever be the quantum of compensation claimed, the question is whether there was negligence on the part of doctor? She did not allege that her consent was not taken before the operation. She herself pleaded that when the first operation to the right eye was conducted she was informed that the cataract on the left eye was not matured, he would conduct the operation at a later point of time. When she came on 4.2.2006 to get the left eye operated, required tests were conducted evidenced under Ex.A1. She was aware that she went to an ophthalmologist for getting cataract operation to be conducted on her left eye. She was not novice to the procedure. She knew that the patient immediately after operation could be free to go to her house. However, she had to scrupulously follow the instructions as mentioned in the brochure Ex.B4. When the doctor alleged that she herself came complaining that there was domestic quarrel in her house and therefore she wept and rubbed the eyes later used tap water to get it cleaned, the complainant did not deny the said fact when she filed her affidavit evidence. Her evidence is nothing but reiteration of facts mentioned in the complaint. Not even a single fact alleged by the doctor had been contradicted either by adducing medical evidence or by filing literature to show that the doctor did not follow the rules and regulations formulated by the medical council. Importantly the case sheet maintained by Shankar Netralay, Chennai did not allege that there was negligence either in administering medicines or treating post operatively. Even the doctors at Shankar Netralaya conducted two or three operations one after another though at different periods did not allege all this was due to negligent post operative treatment. Obviously the very eye drops, and medicines that were prescribed by the opposite party doctor were continued by them.
11) As recently as in February, 2009 in Martin F. D’Souza Vs. Mohd. Ishfaq reported in I (2009) CPJ 32 (SC) the Supreme Court opined :
"In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men.... The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care...."
The standard of care has to be judged in the light of knowledge available at the time of the incident and not at the date of the trial. Also, where the charge of negligence is of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time ……
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.
12) No doubt as this case has arisen prior to the decision, no notice was issued to any competent doctor or committee to find out whether there was ex-facie negligence on his part, before taking cognizance of the case.
13) Be that as it may the complainant could have filed the affidavit evidence of doctors of Sankar Netralay who have conducted the subsequent operations in order to prove that there was post operative negligence which led to Endopththalmitis. The case sheet filed by her maintained by Sankara Netralaya does not show that as there was post operative negligence she had developed this complication.
14) The learned counsel for the opposite party doctor contended that endopthalmitis is the rarest of the rare complication at post-operative state. It has been discussed in the following journal from which following excerpt is taken:
Clinical Opthalmology – a systematic approach by Jack I Kanshi Acute Postoperative endopththalmitis:
Causes:
Acute endopthalmitis is a devastating complication that occurs in about 1:1000 cases.
He expatiated from the paper presentation made by Jack.J Kanski. He mentioned the following:
1. Causative Organisms. In order of frequency, include coagulase-negative staphylococci (e.g. Staph.Epdermidis). Other Gram-postiive organisms (e.g. Pseudomonas Sp., Proteus Sp.)
2. The sources of infection most often cannot be indentified with certainty. It is though that the patient’s own external bacterial flora of the eyelids, conjunctiva and tachrymal drainage passages is the most frequent culprit. Other potential sources of infection include contaminated solutions and instruments and environmental flora including that of the surgeon and operating room performed.
15) The doctor himself filed Ex.B1 names of the patients to whom he conducted the operations on the said day seven in number. None of the patients had complained about it. When the doctor informed the names of the patients, the complainant could have verified whether they had suffered very same postoperative complications. Even otherwise, the complainant could not prove that this post operative complication was not due to not taking precautions as alleged above. When her own documents did not reveal that there was postoperative negligence on the part of doctor, we are unable to appreciate the case of the complainant in stating that she lost partial eye sight due to postoperative complication which could be attributed to the doctor. Ex.A5 certificate issued by the Medical Board shows that the disability was only 30%. Since the complainant had failed to establish that there was negligence on the part of doctor, we are unable to award any compensation.
16) In the result complaint is dismissed. No costs.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR
COMPLAINANT: OPPOSITE PARTY:
None None
Documents marked for complainant:
Ex.A-1 Blood Sugar and Urine Test report dt.4.2.2006 issued by
Poornima laboratory, Eluru.
Ex.A-2 Patient record issued by Sankar Nethra Chikithsalay dt.12.12.2003.
Ex.A-3 Letter issued by Sankar Nethra Chikithsalay.
Ex.A-4 Case summary issued by Sankara Nethralaya dt.30.8.2006.
Ex.A-5 Medical Certificate for Blind issued by Dist.
Medical Board dt.11.11.2006.
Ex.A-6 Legal notice issued by the complainant dt.27.9.2006
to the opposite party.
Ex.A-7 Reply notice issued by the opposite party to the counsel
for the complainant dt.14.10.2006.
Ex.A-8 Receipts issued by Sankara Nethralaya.
Ex.A-9 Receipts issued by Sankara Nethralaya.
Ex.A-10 Medical Bills
Ex.A-11 Bills issued by Sankara Nethralaya
Ex.A-12 and A13 Patient advance receipts issued by Sankara Nethralaya.
Ex.A-14 Out patient record maintained in Sankara Nethralaya.
Ex.A-15 Step by step patient flow chart maintained in Sankara Nethralaya.
Ex.A-16 Surgery schedule issued by Medical Research Foundation,
Sankara Nethralaya dt.14.2.2oo6.
Ex.A-17 Discharge summary – surgery issued by Sankara Nethralaya.
Documents marked for opposite party:
Ex.B-1 Day book dt.5.2.2oo6.
Ex.B-2 O.T book dt.28.2.2oo4.
Ex.B-3 Bills.
Ex.B-4 Receipt issued by Rythanga Samakhya, Andhra Pradesh Eluru
Ex.B-5 List of equipments.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
Dt. 18. 01. 2010.
*pnr
“UPLOAD – O.K.”
