K.L. Anand filed a consumer case on 20 Feb 2024 against Dr. R.K. Bansal, NB'S Retina Centre in the DF-I Consumer Court. The case no is CC/428/2020 and the judgment uploaded on 26 Feb 2024.
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
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ARGUED BY | : | None for the complainant. |
| : | Sh. Shakti Paul, Advocate for OP (through VC). |
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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.
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.
(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:
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.”
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| sd/- [Pawanjit Singh] |
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| President |
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| [Surjeet Kaur] Member Sd/- |
20/2/2024 |
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| [Suresh Kumar Sardana] |
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