Chandigarh

DF-I

CC/428/2020

K.L. Anand - Complainant(s)

Versus

Dr. R.K. Bansal, NB'S Retina Centre - Opp.Party(s)

Sumit Sawhney

20 Feb 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

 

                    

Consumer Complaint No.	:	CC/428/2020
Date of Institution	:	6.10.2020
Date of Decision	:	20/2/2024

 

K.L. ANAND, AGED 84 YEARS SON OF SH. GANDHA MAL ANAND R/O HOUSE NO. 258, SECTOR 2, PANCHKULA.

 

COMPLAINANT

VERSUS

 

Dr. R.K. BANSAL, NB'S RETINA CENTRE, HOUSE NO. 3878, OPPOSITE GUGA MADI MANDIR, SECTOR 32-D, CHANDIGARH.

.  … Opposite Party

 

CORAM :	PAWANJIT SINGH	PRESIDENT
	SURJEET KAUR SURESH KUMAR SARDANA	MEMBER MEMBER

                       

 

ARGUED BY	:	None for the complainant.
	:	Sh. Shakti Paul, Advocate for OP (through VC).

 

Per surjeet kaur, Member

     Briefly stated the complainant was suffering from eye problems as such he visited the clinic of opposite party on 11.07.2020 and opposite party diagnosed Mature the Senile Cataract (Right eye) and Pseudophakia (Left eye) and it was advised by him that the complainant should undergo treatment for Phacoemulsification with Intraocular Lens (IOL) under local anaesthesia in the Right Eye. On the advice of the opposite party, the complainant underwent surgery in his clinic on 15.07.2020 and the complainant was discharged on the same day of surgery. The complainant paid Rs.34,000/- for the said surgery. After sometime the complaint faced problems in the eyes as he started seeing the lens in the eye as a floating object and stress in the eyes. He immediately approached the OP on 16.7.2020 and explained the problems being faced by him but the OP did not pay any heed. Ultimately the complainant approached to another hospital i.e. Grewal Eye Institute who after careful examination disclosed that the intra ocular pressure was raised to such an extent that it would damage the eye of the complainant and the lens was not in right place and even  cornea was damaged and iris of the complainant was sticking to the cornea and as such due to negligence of OP the complainant had to undergo corrective surgery on 23.7.2020 by paying hefty amount of Rs.75,000/-. Thereafter the complainant had to undergo another surgery in order to render ineffective the  medically negligent treatment provided by the OP and to restore the normal condition of the eye and for which the complainant had spent another amount of Rs.1.00 lakh. Alleging the aforesaid act of Opposite Parties deficiency in service and unfair trade practice on their part, this complaint has been filed.

2. The Opposite Party while admitting the factual matrix of the case stated that prior to the surgery the complainant was explained the pros and cons of the surgery and risk of floppy iris syndrome were also explained to the son of the complainant. On 13.7.2020 after examination it was found that the complainant has short axial length therefore, the risk of iris prolapsed and corneal edema post surgery  was higher and  after explaining all the risks the complainant’s son asked him to proceed for the surgery and at the time of surgery every precautionary measures were taken. After surgery the complainant complained of certain discomfort in the eye which is normal in cases like that of the complainant and on examination, it was found that there was Corneal Edema, the anterior chamber was formed & intra-ocular pressure was high. Some cortex was seen and the lens was seen displaced. These complications are common in cases of IFIS. After the examination, the treating doctor prescribed a medicine namely tablet Acetazolamide (3 times a day) and Timolol eye drops. These were prescribed for lowering the eye pressure and medicine was also prescribed for reducing inflammation. The patient was re-called on 18.07.2020 as per the prescription. It  is denied that the Opposite Party acted in a negligent manner whilst conducting the surgery of the complainant and post surgery treatment provided by the Opposite Party was also not as per the prescribed medical standards. The opposite party took adequate measures that are required while conducting surgery in such cases, the same have been detailed in the preceding para. Furthermore, proper procedure was adopted by the opposite party. It is denied that the lens was not in right place however, the same was displaced post surgery due to rent in posterior capsule, which usually occur in patient like the complainant. The complainant was also recalled for follow up but he did not turn up. It is denied that there is any medical negligence on the aprt of the OP. In fact the OP given proper service to the complainant. All other allegations made in the complaint has been  denied being wrong.
3. No rejoinder filed.
4. Contesting parties led evidence by way of affidavits and documents.
5. We have heard the learned counsel for the contesting parties and gone through the record of the case.
6. Through the present complaint it has been alleged by the super senior citizen  the complainant who is 84 years old that the eye surgery performed by the OP doctor  was not as per set procedure and the OP doctor was negligent  in providing proper service.
7. As per the case of the complainant the  eye surgery was performed by the OP doctor on 15.7.2020  and due to wrong  procedure  adopted by the OP doctor the complainant had to undergo re-surgery. As per the allegation of the complainant the OP doctor acted in a negligent manner while conducting the surgery in question and also post surgery treatment provided  by the OP doctor was not as per prescribed medical standards. It has also been further alleged that the complainant was suffering with raised intra ocular pressure but the OP doctor  did not prescribe any extra medicine for the same.
8. So far as   the medical negligence  on the part of the OP doctor is concerned there is no such concrete evidence on record  which can prove  that the procedure adopted was wrong and the consequences of the surgery were not explained to the complainant and his doctor son.  Repeatedly the complainant has stated throughout the complaint  that his son is a doctor and in our opinion the complainant has availed the full wisdom and expertise of his son  being a medical practitioner and he must have come to the conclusion to get the surgery done from the best doctor at the best clinic with best procedure so is the case of the complainant. As per evidence on record Exhibit C-1 it is clear that the complainant visited the doctor on 11.7.2020 thereafter on 13.7.2020 and finally the son of the complainant made his mind for surgery to be conducted on 15.7.2020. The contents of Exhibit C-1 is as under:-

Advise

1. Phacoemulsification with Intraocular Lens (IOL) under Local Anaes-thesia/Topical Anaesthesia in RIGHT eye.

 

a. Pros and cons of surgery explained in detail.

 

b. Explained in detail about risk of endophthalmitis, risk of posterior capsular rent, need for refractive glasses after surgery, Re-surgery.

 

c. Explained about decrease of vision after cataract surgery due to posterior capsular opacity, macular edema etc.

 

2. Get RBS and ECG done

 

3. Follow up: With reports.

13.7.2020 risk of floppy iris explained.”

 

 

 

     The contents of aforesaid prescription shows the expertise of the OP doctor who clearly indicated post surgery risks and probability of re-surgery which  was duly intimated to the complainant and his son in advance prior to the surgery.

 

9.  Annexure OP-6 is the consent taken  by the doctor from the complainant after briefing the floppy iris and only after getting  the full understanding  of his case, the complainant gave his consent. On bare perusal  of the Annexure OP-6  (the consent) it is abundantly clear   that the involved risk  was duly explained  again. So far as  the allegation of the complainant regarding non prescribing  of any extra medicine  of raised intra ocular pressure is concerned,  as per Exhibit C-4 the medicine was prescribed thrice  alongwith one more eye drop  namely timolol alongwith other medicines. A perusal of  Annexure OP-7 the discharge summary  reveals that the complainant was called for the follow  up after surgery i.e. on 18.7.2020  but on telephonic call the son of the complainant intimated that he wanted to take the patient to PGI.  Despite explaining  availability of best facility and trained surgeon at the OP doctor hospital the son of the complainant took him to another hospital  instead of visiting the OP doctor for the prescribed follow up as is apparent from the  discharge summary.  From the documents   and facts narrated above it nowhere  reveals that the OP doctor was negligent in performing his duty.
10. The Hon’ble Apex Court in Jacob Mathew v. State of Punjab and Another, III (2005) CPJ 9(SC), dealt with the law of medical negligence in respect of professionals professing some special skills. Thus, any individual approaching such a skilled person would have a reasonable expectation under the duty of care and caution, but, there could be no assurance of the result. No doctor would assure a full recovery in every case. At the relevant time, only assurance given by implication is that he possessed the requisite skills in the branch of the profession and while undertaking the performance of his task, he would exercise his skills to the best of his ability and with reasonable competence. Thus, the liability would only come if:

(a) either a person (doctor) did not possess the requisite skills which he professed to have possessed; or

(b) he did not exercise with reasonable competence in given case the skill which he did possess. It was held to be necessary for every professional to possess the highest level of expertise in that branch in which he practices. It was held that simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of the medical professional. The Hon’ble Apex Court held as under:

“48. We sum up our conclusions as under:

(1) 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. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: “duty”, “breach” and “resulting damage”.

(2) Negligence in the context of the 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 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. 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.

xxx          xxx          xxx

(4) The test for determining medical negligence as laid down in Bolam case [(1957) 2 All ER 118 (QBD), WLR at p. 586] holds good in its applicability in India.

    xxx          xxx          xxx

(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 for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence.”

The term “negligence” has been defined in Halsbury Laws of England (Fourth Edition) para 34 and as settled in Kusum Sharma and Others v. Batra Hospital and Medical Research Centre and Others, I (2010) CPJ 29 (SC) as under:-

        “45. According to Halsbury's Laws of England, 4th Edn., Vol. 26 pp. 17-18, the definition of negligence is as under:

            22. Negligence.—Duties owed to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient.”

In para 89 of the judgment in the case of Kusum Sharma (supra), the tests of medical negligence while deciding whether the medical professional is guilty of medical negligence, varied tested principles have to be kept in view, the Hon’ble Apex Court held as under:-

“89. On scrutiny of the leading cases of medical negligence both in our country and other countries specially the United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well-known principles must be kept in view:

1. 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 unnecessarily 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 pressurising 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.”

In Dr. Harish Kumar Khurana v. Joginder Singh and Others, (2021) 10 SCC 291, the Hon’ble Apex Court has held that the hospital and doctors are required to exercise sufficient care in treating the patients in all circumstances. However, in an unfortunate case death may occur. It will be necessary that sufficient material on medical evidence should be available before the adjudicating authority to arrive at a conclusion that the death is due to medical negligence. Even death of a patient cannot, on the face of it, be considered to be medical negligence. Recently, the Hon’ble Apex Court has discussed and relied upon the aforesaid judgments in the case related to medical negligence in Chanda Rani Akhouri [Dr. (Mrs.)] & Ors. Vs. M.A. Methusethupathi [Dr.] & Ors., II (2022) CPJ 51 (SC) and has held as under :-

27. It clearly emerges from the exposition of law that a medical practitioner is not to 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. In the practice of medicine, there could be varying approaches of treatment. There could be a genuine difference of opinion. However, while adopting a course of treatment, the duty cast upon the medical practitioner is that he must ensure that the medical protocol being followed by him is to the best of his skill and with competence at his command. At the given time, medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

28. The term “negligence” has no defined boundaries and if any medical negligence is there, whether it is pre or post-operative medical care or in the follow-up care, at any point of time by the treating doctors or anyone else, it is always open to be considered by the Courts/Commission taking note of the exposition of law laid down by this Court of which a detailed reference has been made and each case has to be examined on its own merits in accordance with law.”

11.   From the  facts of the instant case it is apparent that the treating OP doctor is academically sound  and expert in his field  as is evident from medical record produced on record  by the OP doctor. Admittedly the patient was 84 years of age  and was in critical condition when he was brought to the OP doctor. It was the complainant who chose not to re-visit  the doctor for the next follow up and also  has given consent for the alleged surgery in question.  In our opinion the OP doctor has given best available medical treatment to the complainant and there is no cogent evidence on record in order to prove  that there is any medical negligence  on the part of the OP doctor. The complainant has also failed  to prove on record that the set medical protocol  has not been adopted by the OP doctor to the best of his skill and competence  while treating  the complainant.
12. In view of the law laid down by the Hon’ble Apex court in the aforesaid judgments it is safe to hold that the complainant has miserably failed to prove his case against the OP and hence, the complaint deserves dismissal.  
13. In view of the aforesaid discussion, the present consumer complaint, being devoid of any merit, is hereby dismissed leaving the parties to bear their own costs.
14. Pending miscellaneous application(s), if any, also stands disposed off.
15.      Certified copies of this order be sent to the parties free of charge. The file be consigned.

			sd/- [Pawanjit Singh]
			President
			Sd/-
			[Surjeet Kaur] Member Sd/-
20/2/2024			[Suresh Kumar Sardana]
mp			Member