Date of Filing: 16.12.2013 Date of Disposal: 18.08.2022
Complainant :PurnachandraChakraborty, S/O KritibashChakraborty, Chhotodighari, Notunpally, P.O. Chhotodighari, P.S. Hirapur, Dist. Burdwan, Pin-713326.
-VERSUS -
Opposite Party :1. Dr. UdayChatterjee, having his Chamber at Sadhu Optical, Suruchi Hotel Building (1st Floor) opp .Ast.(s) Thana, Pin 713301. Also an attending Doctor of Asansol Metropolitan Nursing Home, 30, K.N. Mukherjee Lane, P.O. Asansol, P.S,. Asansol(S), Dist. Burdwan.
2. Asansol Metropolitan Nursing Home through the RMO ,Asansol Metropolitan Nursing Home, 30, K.N. Mukherjee Lane, P.O. Asansol, P.S,. Asansol(S), Dist. Burdwan, Pin-713301.
Present : Mohammad Muizzuddeen -Hon’ble President.
: Mrs. LipikaGhosh - Hon’ble Member.
Appeared for the Complainant : Sri Samyuk Banerjee Ld. Advocate.
Appeared for the Opposite Party : Sri SubrataGhosh Ld. Advocate.
FINAL ORDER
On 16.12.2013 the complainant PurnachandraChakraborty, has filed this complaint u/S 12 of the Consumer Protection Act, 1986 against the OP Nos. 1 & 2.
The case of the complainant, in brief, is that the complainant went to the Chamber of the OP No.1 and after examining the eye of the complainant, the OP No.1 opined that there was a problem of cataract in his left eye and advised him to undergo surgery known as SICS C PCIOL (L) and has taken an advance of Rs. 500/- from the complainant by his prescription dt. 16.09.2012 and on 16.09.2012 also advised him to have Blood Sugar Test and also to have a test known as ‘A’ Scan Biometry. On 17.09.2012 and 22.09.2012 those tests were done in Millennium Diagnostic Centre and Birendra Biometry Centre respectively. On 29.09.2012 the complainant was admitted in OP No.2’s Nursing Home where operation of the left eye of the complainant was done as SICS CIOL (L). On 16.09.2012 the OP No.1 suggested the operation as SICS C PICIOL (L) but the operation was done as it evident from the discharge certificate given by the OP No.2’s Nursing Home that SICS C IOL (L) was done. It is not clear whether the operation relates to PC (Posterior Chamber) or AC (Anterior Chamber) from the discharge certificate dt. 30.09.2012. On 30.09.2012 he was discharged from the Nursing Home of OP No.2 upon prescribing certain medicines and he was advised to have review on 06.10.2012. Accordingly, on 06.10.2012 the OP No.1 upon checking up, advised him to take certain medicines and had noted curtained remarks. From the said prescription it legible that ACIOL (L) was done on 29.09.2012. It is quite surprising previously it was suggested that SICS C PCIOL (L) was to be done and why at the time of operation it was related to ACIOL (L). It is also clear that operation was one in the anterior chamber in spite of suggesting previously by the same doctor to have a operation related with posterior chamber. Why the OP No.1 doctor was deviated from his previous selection operation at the time of operation of eye on 29.09.2012. Further, case of the complainant is that problem of suffering of eye of the complainant was continued and the complainant was compelled to go to the OP No.1 on 13.10.2012 who advised him for immediate admission of the complainant in the Nursing Home of OP No.2 and accordingly he was admitted there and the treatment received by him reflected in the discharge had been “ICC-Construction and wash of A/C” done and thereafter medicine was prescribed on 27.10.2012. All along the complainant has taken the medicine was per advice of the OP No.1 doctor but the suffering of the left eye had been continuing and the vision of his left eye had been no more, so far the feeling of the complainant is concerned. On 27.10.2012 the OP No.1 doctor only advised certain medicines and also plan for explanation of IOL (L) on 28.10.2012. Thereafter, undergoing two operations under the OP No.1 doctor, this time a doubt has raised in the mend of the complainant as to whether he will subject himself under the treatment of OP No.1 doctor. Again for the third operation or not and accordingly, upon having the same doubt , the complainant went to Disha Hospital on 08.11.2012 and the doctors of the said hospital upon checking the eye of the complainant and after having the USG of the complainant’s eye, suggested certain other tests and fixed a date of operation to on 20.11.2012 and on 08.11.2012 doctors of Disha Hospital advised to take certain medicines and also suggested that the complainant may go for –(LE) LARGEPK WITH SUPPATCHGRAFT then review to decide (L) VIT + IVAB OR EVISCERATION . Accordingly, he was admitted in Disha Hospital on 20.11.2012 and ultimately lost his left eye by way of having operation known as LE-EVISCERATION and thereafter he was discharged on 21.11.2012 and asked to have a review on 28.11.2012. In the meantime through local doctor S.K. Sarkarof ISP Burnpur Hospital, the complainant gets his bandage open through the said doctor on 14.11.2012. Thereafter, the complainant went to Disha Hospital again on 28.11.2012 for review wherein he was advised to take certain medicines and review after one month as and when required. In this way, the complainant has completely lost his left eyeand became looking ugly. In the discharge certificate, it is evident that the complainant had LE ENDOPHTALMITIS and he was treated medically with LE- LEISCERTION.
The complainant alleged that there was no sufficient infrastructure of OP No.2 for management a case of operation and it was fully known to the OP No.1 and for making more monetary profit by way of exploiting the compelling situation of the complainant at that time, asked the complainant to undergo the operation in the Nursing Home of OP No.2. The OPs committed deficiency in service and unfair trade practice and negligence in treatment of the complainant in the aforesaid manner.
Upon this background the complainant prayed for directing the OPs to pay him an amount of Rs.4,99,000/- as per detailed particulars given in Para 10 of the complaint.
Both the OP Nos. 1 & 2 have contested the case by filing two separate Written Versions denying all the material allegations contending inter alia that the complainant has no cause of action to file this complaint and that complaint is not maintainable in its present form and character and that the complaint is barred under principle of estopple, waiver and acquiescence and that the complaint is bad for non-joinder and mis-joinder of necessary parties and that the complaint has been filed with mala-fide intentions and that the complaint is bad in law, vague, misconceived, speculative , harassing in nature, adverse to the real state of affairs and based on fanciful and baseless allegations.
The specific case of the OP No.1 is that the OP No.1 is a renowned and qualified Eye Surgeon. The complainant came to his chamber at Asansol on 26.09.2012 for eye examination and he found that the complainant was suffering from cataract in left eye . This OP No.1 advised him to get operated and for pre-operative medical checkup such as PPbs , Biometry of Left eye, measurement of internal ocular pressure and found the internal ocular pressure was 17.3 min of Hg and LNLP was potent. Later the patient came on 29.09.2012 at the Nursing Home of Op No.2 along with reports of the investigations and after perusal of the reports, this OP No.1 advised him to get operated of the cataract of the left eye. He also informed the patient the procedure of operation and informed the operation should be SICS with PCIOL. Thereafter the patient took admission at the Nursing Home of OP No.2 on 29.09.2012 and the operation was done on the same day. During the operation this OP found that the posterior capsule was very thin, which was raptured. Hence, this OP was compelled to implant an anterior chamber IOL (ACIOL) as there was no support of the IOL in posterior chamber. During discharge on 30.09.2012 the condition of the patient was satisfactory. At the time of discharge, this OP No.1 advised post-operative medicines as well as directed to report this OP for checking up. On the next check-up on 06.10.2012 this OP found IntralOcular Pressure (IOP) of the operative eye was raised and there was some cortical matter in the anterior chamber. This OP prescribed few medicines to clear up the anterior chamber and bring down the IOP. But on the next visit on 13.10.2012 this OP found that anterior chamber was full of flocculent cortical matter which this OP thought will not get absorbed by medicine only. Consequently, this OP advised the patient for admission in the Nursing Home of OP No.2 for washing out of anterior chamber cortical matter and anterior chamber reconstruction was done. During discharge from the hospital on 14.10.2012 the eye looked healthier.
Thereafter, next few days this OP was felt down in fever and could not attend his Clinic at Asansol. The patient and his son consulted this OP over telephone. They complained of ocular pain and hazy vision. This OP prescribed medicines as far as possible over phone and asked the complainant to come down to his home at Kolkata so that this OP could see the case personally and take a second opinion if necessary. But the complainant did not agree. On the other hand, the complainant went to Durgapur Lions Eye Hospital on the suggestion of this OP for second opinion and consulted Dr. P. Mitra. On 27.10.2012 this OP examined the patient at Asansol chamber and became surprised to find severe inflammatory reaction in the eye and decided that IOL should be explanted to save the eye but the patient never turned up thereafter. Thereafter, from the documents and papers of Disha Eye Hospital, which have been sent to the OP No.1 by Ld. Forum along with this complaint, this OP came to learn that the patient developed Endophthalmitis which is one of the inherent complications in case of Cataract Operation and ultimately the left eye was eviscerated at Disha Eye Hospital. That from the documents it would be evident that this OP has treated the patient in accordance with the procedure prescribed by the Medical Science and this OP has not committed any negligence on the treatment of the patient. There is no iota of evidence wherefrom it would be evident that this OP committed negligence in treating the patient.
Upon this background, the OP No.1 claims the dismissal of the case.
The specific case of the OP No.2 is that his Nursing Home is well-equipped and renowned registered nursing home. This OP has a R.M.O and trained nurses. That from the documents it would be evident that this OP has provided other facilities to the complainant in accordance with the procedures prescribed by the Medical Science and this OP has not committed any negligence on the treatment of the patient. There is no iota of evidence wherefrom it would be evident that this OP committed negligence in treating the patient.
Upon this background, the OP No.2 also claims the dismissal of the case.
Decision with Reasons
Now we like to discuss the case with reference to the evidence, principle of law etc. regarding medical negligence and how far it has been proved.
Principle of Law:-
No.1. A medical man is possessed of skill and knowledge for the purpose of medical advice and medical treatment.
2. He has a duty to take care in deciding what treatment to give or duty to take care of administration of the medical treatment.
3. A breach of such duty gives a right of action for negligence to the patient and the damages are caused.
4. A medical practitioner was not to be held liable simply because things went wrong from mis-chance or mis-adventure through an error of judgment in choosing one reasonable course of treatment in preference to another.
5. The degree of skill and care required by a medical practitioner is so stated in Halsbury’s Laws of England (4th edition, Vol. 30, Para-35)
Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis, it must be shown (i) that there is an usual and normal practice (ii) that the Defendant has not adopted it and (iii) that the course in fact is adopted is one, no professional man of ordinary skill would have taken , had it be acting with ordinary care.
6. The Principles of Bolam and Bolitho Case areapplied in the Indian Cases also though there are many criticisms by the Indian Judiciary in some cases. In the land mark of Bolamcase, it was held,
“In the ordinary case, which does not involve any special skill , negligence in law means a failure to do some act which a reasonable man in the circumstance would do, or the doing the same act which a reasonable man in the circumstances could not do and if that failure could attract negligence”.
Put simply, it states that the defense could not be considered reasonable, if the body of doctors or supporting witnesses were not capable of withstanding logical analysis.
Management Procedure:-
This case is related to Ophthalmological problem. As such pre-operative management procedure and post-operative management procedure should be followed. In pre-operative stage, the doctors after examination of the eye, record findings, diagnose the decease, prescribe investigations and explain the possible treatment and its natural outcome;pre-caution in use of drugs and the doctor also give common advice to the patient according to the information and history gathered from the patient. The doctor also prescribes some medicines according to the relevant filed of medical science. In pre-operative stage, the expected chance of success and failure, the risk and benefit of the procedure, the hazardous and complication of the particulars surgery and procedure of anesthesia should be explained to the patient. The consent of the patient should be taken. Treatment before surgery i.e. some routine investigations should be made by the doctor concerned.
In the post-operative management i.e. post-operative stage the appropriate medicines should be prescribed according to the medical science by the Ophthalmologist and appropriate advice should be given to the patient to take care of the eye and to take care of the doses and medicine in time. The doctor also informed the patient about the side effect of medicines, if not properly dose of medicineis taken and if the precaution of looking after the operated eye is not taken, adverse outcome may be happened.
Evidence and Discussion
The complainant has filed evidence on affidavit. OP Nos. 1 has also put questionnaire to the evidence and the complainant has filed replies to those questions.
OP No.1 has also filed evidence-on-affidavit and the complainant put questionnaire to which the OP No.1 filed replies.
The complainant also filed Xerox copies of prescriptions dt. 16.09. 2012 of Dr. UdayChatterjee(OP No.1) and he also filed another prescription dt.06.10.2012 of the same doctor. The complainant also filed discharge certificate and another prescriptions dt.13.10.2012 and 27.10.2012. He also filed Xerox copies of prescriptiondt. 08.11.2012 of Disha Eye Hospital and other investigation reports of Disha Eye Hospital and he also filed another discharge certificate dt. 20.11.2012 issued by Disha Eye Hospital and Research Centre.
The expert opinion was also called for which has been received. The expert opinion has been submitted in the form of a report. The expert report dt. 09.09.2016 has been given by Dr. M. Banerjee, Professor & Head, Upgraded Department of Ophthalmology, Burdwan Medical College & Hospital, Burdwan.
Ld. Advocates of both sides did not argue by pressing the management procedure either in pre-operative stage or in post-operative stage except about the prescribed diagnose and prescribed medicines in both the stages. That apart neither the complaint nor the evidence disclosed regarding information received or taking consent of the patient by the doctor concerned in the pre-operative stage of operation.
In the instant case, S.I.C.S i.e. Small Incision Cataract Surgery is involved. From the prescription dt. 16.09.2012 it was diagnosed that S.I.C.S PCIOLi.e there was a Small Incision Cataract Surgery was involved and Implantation of Posterior Chamber Internal Ocular Lens was to be done. But from the prescription dt. 06. 10.2012 issued by OP No.1 and the discharge certificate issued by Asansol Metropolitan Nursing Home at the time of operation in the Operation Theatre (O.T) P.C.I.O. ie. Implantation of Anterior Chamber Inter Ocular Lens was not done. In this connection, the Ld. Advocate for the complainant has submitted that on 29.09.2012 the complainant was admitted in the Nursing Home of OP No.2 under OP No.1 who operated the left eye of the complainant with the operation known by the abbreviation SICSOCL (L) though on 16.09.2012 the doctor suggested that the operation of the left eye of the complainant was to be done with the operation known by S.I.C.S. C P.IC.I.O.L(L) but the discharge certificate does not clearly indicates it and the said operation i.e. the process of SICS ACIOL was adopted by the OP No.1 without the consent of the patient i.e the complainant and as such the complainant has projected the liability of OP No.1 as negligence on the part of the OP No.1. Apart from it, the complainant also gave evidence that he suffered with the eye problem which was continued and he went to the OP No.1 on 13.10.2012 and the OP No.1 advised him for immediate admission in the Nursing Home of OP No.2 wherein he received treatment as reflected in the discharge certificate and I.C.C.E Inter Capcular Cataract Extraction has been done and after the said operation the complainant was given medicines on 27.10.2012. He also alleged that after those two operations done by the OP No.1, a doubt has raised in the minds of the complainant regarding the treatment before the OP No.1 for third operation. Accordingly, he went to Disha Eye Hospital on 08.11.2012 wherein the doctor concerned, after checking the eye , suggested certain other tests and advised to take certain medicines and Disha Eye Hospital also suggested the complainant to go for (L.E.) LARGEPK WITH SUPPATCHGRAFT and then review to decide (L) VIT + IVAB OR EVISCERATION and accordingly the complainant admitted there on 20.11.2012 and his operation was done on left eye known as LE - EVISCERATION and discharged on 21.11.2012 with an advice to have a review on 28.11.2012 but in the meantime through a local doctor S.K. Sarkar of ISP , Burnpur Hospital , the complainant got his bandage open on 14.11.2012 and thereafter , went to Disha Hospital again on 28.11.2012 for review wherein the complainant was advised to take certain medicines. He was also advised to have a review after one month . In this way, the complainant has completely lost his left eye and became looking ugly. Ld. Advocate for the complainant has argued that those acts of the OP Nos. 1 & 2 undoubtedly indicate act of deficiency in service and act of unfair trade practice and negligent in treatment of the complainant. From the expert opinion dt. 09.09.2016 it also appears that on 29.9.2012 the complainant was admitted in the Nursing Home of OP No.2 and underwent SICS with IOL (LE) and discharged on 30.09.2012 with medications. Again on 06.10.2012 the patient was examined and noted to have ACIOL and treatment was given and ACIOL may be implanted after SICS when surgeon feels lack of posterior capsular support and on 13.10.2012 patient was examined and found to have profuse cortical matter and he was ad vised Cortical clean up. Secondary cortical may be required in case of residual cortical matter not resolving with medical treatment. The patient was again admitted in the Nursing Home of OP No.2 and underwent reconstruction and cleaning of anterior chamber and was discharged on 14.10.2012. Thereafter, no documents of follow up of Dr. UdayChatterjee were available. From this report as well as from the complaint specially in Para 7 it was found that the complainant himself after raising doubt in his mind regarding the treatment , he did not got to the OP No.1 for further treatment and he himself went to Disha Eye Hospital and according to his statement , subsequent treatment has been taken by him in Disha Eye Hospital and before the local Dr. S.K. Sarkar of ISP , Burnpur Hospital after following the advice of the doctor of the Disha Hospital for review on 28.11.2012 and even he did not go to OP No.1 on 28.10.2012 for subsequent treatment of his eye. From the expert opinion it is also clear that ACIOL may be implanted after SICS when surgeon feels lack of posterior capsular support.
Therefore, it is clear that though it was suggested that PCIOL may be implanted after SICS yet in the Operation Theatre (O.T) ACIOL may be was implanted after SICS when surgeon feels lack of posterior capsular support according to the procedure and management of Medical Science and this feeling of the OP No.1 cannot be treated as negligence on his part.
From the expert opinion, it is also clear that the OP No.1 tried his best to give medical treatment to the complainant but the complainant himself, without taking the subsequent treatment, went to Disha Hospital without following the advice of OP No.1. The reports of Disha Eye Hospital do not disclose that the treatment procedure adopted by the OP No.1 was not proper according to the Medical Science.
From the evidence of OP No.1 it is found that he prescribed medicines as per as possible over phone and asked the complainant to come down his home at Kolkata so that the OP No.1 could see case personally and take a second opinion, if necessary but the complainant did not agree. On the other hand, the complainant went to Durgapur Lion’s Eye Hospital on the suggestion of this OP for second opinion and consulted Dr. P. Mitra . On 27.10.2012 this OP examined the patient at Asansol Chamber and became surprised to find severe inflammatory reaction in the eye and decided that IOL should be explanted to save the eye but the complainant never turned up thereafter and he went to Disha Eye Hospital. From the evidence, itis alsoclear that the OP No.1 tried his best to solve the problem subsequently arose in post-operative stage but the complainant himself did not follow up the same. The complainant has alleged in his evidence that in this way subsequently patient developed Endophthalmitis.
Ld. Advocate for the OP No.1 has submitted that this is one of the inherent complications in case of cataract operation and the OP No.1 is not responsible for it. OP No.1 in his evidence stated that the patient developed Endophthalmitis which is one of the inherent complications of cataract operation and ultimately the left eye was eviscerated at Disha Eye Hospital and from the documents it would be evidence that this OP has treated the patient in accordance with the procedure prescribed by the Medical Science and he has not committed any negligence in the treatment of the patient. Endophthalmitis is one of the dreaded complications with an incidence of 0.2 % to 0.5% . Accordingly to the Ophthalmology, principal sources of infection are contamination solutions, instruments, surgeon’s hands, patients own flora from conjunctiva eyelids and airborne bacteria. There is no such evidence in this case that the surgeon’s hands or instruments were liable for this. Accordingly, it cannot be said that Endophthalmitis was developed for which the OP No.1 is liable. In the case of medical negligence, the conclusive evidence is required but in the present case no such conclusive evidence is forthcoming from the side of the complainant.
Ld. Advocate for the complainant has argued that the reply of Op No.1 regarding the questions Nos. 3 & 4 is relevant regarding his negligence. The question No.3 was “Do you admit that everything done in respect of treatment of a patient is to be reflected in the Bed Head Ticket? (Please answer by saying ‘Yes’ or ‘No’). In question No. 4 disclose “Do you admit that post- operative advantages and disadvantages of any operation was explained to the patient on or before the time of signing in the consent Form is to be reflected in the consent form ? (Please answer by saying ‘Yes’ or ‘No’)
The answers to those the OP No.1 replied “Yes’ and that mentioning of the post-operative advantages and disadvantages in writing in the consent form are not all necessary. But before obtaining the consent the post-operative advantages and disadvantages are explained to the patient and patient party. But there is no such case either mentioned in the complaint or mentioned in the evidence of the complainant. That apart those are already discussed in the body of the judgment of management procedure.
He further argued that the complainant has fundamental rights under Article 21 of the Constitution of India to have medical treatment which has been violated by the OP No.1 as the complainant is bound to wear black spectacles due to the damage of his eye.
It is true that every citizen of India is entitled to get benefits of the Fundamental Rights as guaranteed under Article 21 of the Constitution but in the instant case it should be looked into whether there was any negligence on the part of the OP No.1. Moreso, the OP No.1 has given medical treatment as an Ophthalmologist to the complainant at his best and complainant withdrew himself from his medical treatment and went to Disha Eye Hospital. Therefore, this act of OP No.1 cannot be treated as violation of the Fundamental Rights guaranteed under Article 21 of the Constitution of India. Ld. Advocate for the OP cited a decision reported in Supreme Court of India in Civil Appeal No. 6507 of 2009, D/d 20.04.2012 wherein the Hon’ble Supreme Court has held that “ Post -operative medical negligence- doctors are expected to take reasonable care, but they cannot assure patient’s survival.” Ld. Advocate for the OP No.1 also filed another decision of the Hon’ble NCDRC, New Delhi in connection with the First Appeal No. 410 of 2015 , D/d 17.07.2017 observed that “ There was no negligence on the part of the OP No.2, because the cataract surgery and the known complication of PCR was correctly managed by OP 2 by performing ACIOLit was the reasonable and standard of care-it was neither an act of omission nor commission there was neither deficiency in service nor unfair trade practice on the part of OP No.2negligence not proved.” In the instant case, this principle is also applicable.
Ld. Advocate for the OP No.1 also cited a decision of the Hon’bleNCDRC , New Delhi in connection with Revision Petition No. 736 of 2013 D/d 13.12.2013 wherein it was observed that “ In our opinion application of Bolam’s test is necessary and the Hon’ble Supreme Court, inter alia , observed in Martin D’souza’s case as under
Judges are not expert in medical science, rather they are laymen. Indiscriminate proceedings and decision against doctors are counterproductive and serve society no good” Simply because a patient has not favourabley responded to a treatment given by a doctor or a surgeon has failed, the doctor cannot be straightly held liable for medical negligence by applying principles of Res IpsaLocquitor. The law is a watchdog and not a blood-hound, and so long as doctors do their duty with reasonable care they will not be held liable even if treatment is unsuccessful”
In this instant case the OP No.1 did his duty with reasonable care and he is not liable in this case.
Under the above facts and circumstances we are of opinion that the complainant has failed to prove the case specially the medical negligence of OP Nos. 1 &2 and the OP Nos. 1 & 2 did not commit any deficiency in service, unfair trade practice and negligence. As such the case fails.
Hence, it is
ORDERED
That the Consumer Complaint No. 273/2013 be and the same is dismissed on contest against the OP Nos. 1 & 2 but without any cost.
Let a copy of this order be given to the parties on free of cost.
Dictated & corrected by me.
President
D.C.D.R.C., PurbaBardhaman.
Member President
D.C.D.R.C., PurbaBardhaman. D.C.D.R.C., PurbaBardhaman.
