Andhra Pradesh
Chittoor-II at triputi
CC/21/2013
M.Nagarathnamma W/o. M.Sreenivasa Reddy - Complainant(s)
Versus
Dr.Bayapu Reddy ,Eye Specialist C/o. Suma Eye Hospital - Opp.Party(s)
N.Hari Krishna
14 May 2015
ORDER
Filing Date:03.04.2013
Order Date: 14.05.2015
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,
CHITTOOR AT TIRUPATI
PRESENT: Sri.M.Ramakrishnaiah, President ,
Smt. T.Anitha, Member
THURSDAY THE FOURTEENTH DAY OF MAY, TWO THOUSAND AND FIFTEEN
C.C.No.21/2013
Between
1. M.Nagarathnamma,
W/o.M.Sreenivasa Reddy,
Hindu, aged about 65 years,
2. M.Sreevani,
D/o. M.Sreenivasa Reddy,
Hindu, aged about 38 years,
3. M.Sreelatha,
D/o. M.Sreenivasa Reddy,
Hindu, aged about 37 years,
4. M.Kavitha,
D/o. M.Sreenivasa Reddy,
Hindu, aged about 35 years,
5. M.Raghavendra Reddy,
S/o. M.Sreenivasa Reddy,
Hindu, aged about 32 years,
All are residents of:
# 3-80, I Road, Anantapur. … Complainants
And
1. Dr.Bayapu Reddy, MBBS,
Eye Specialist,
C/o. Suma Eye Hospital,
D.No.12-2-870, 1st Cross,
Sai Nagar,
Anantapur.
2. Pushpagiri Eye Institute,
Rep. by its Chairman (Medical),
Lane Opp: to St. Anna’s Girls High School,
Plot No.241, Uma Plaza, D.No.10-2-342,
Road No.9, West Marredpally,
Secunderabad – 26.
3. Sarojinidevi Eye Hospital,
Rep. by its Superintendent,
D.No.10/4/46, Opp. Britania Backery,
Mehidipatnam,
Hyderabad – 28. … Opposite parties.
This complaint coming on before us for final hearing on 29.04.15 and upon perusing the complaint, written version and other relevant material papers on record and on hearing Sri.N.Harikrishna, counsel for the complainant, and Sri.B.Obula reddy, Sri.A.Sudarsana Babu, counsels for the opposite party No.1, Sri.E.Satyanarayana, counsel for the opposite party No.2, Sri.T.Nagabhushanam, counsel for the opposite party No.3, and having stood over till this day for consideration, this Forum makes the following:-
ORDER
DELIVERYED BY SRI. M.RAMAKRISHNAIAH, PRESIDENT
ON BEHALF OF THE BENCH
This complaint is filed under Section-12 of C.P.Act 1986, by the complainants for the following reliefs 1) to direct the opposite parties 1 to 3 jointly and severally to pay a sum of Rs.6,10,000/- towards compensation, 2) and such other reliefs the Forum deem fit in the circumstances of the case.
2. The averments of the complaint in brief are:- That M.Sreenivasa Reddy, a retired V.R.O., the husband of the 1st complainant and father of complainants 2 to 5 approached the 1st opposite party Dr.Bayapu Reddy on 27.07.2011 at Ananthapur, for his vision test. The 1st opposite party told the patient (M.Sreenivasa Reddy) that cataract was developed in his left eye and it is to be operated and prescribed some medicine and asked M.Sreenivasa Reddy to come after 3 or 4 months.
3. On 27.02.2012 opposite party No.1 (Dr.Bayapu Reddy) conducted cataract operation for the left eye of M.Sreenivasa Reddy and discharged the patient on 28.02.2012 with an advise for follow-up treatment and also asked the patient to come for check-up and review on 03.03.2012 and 13.03.2012. By the time of check-up on 03.03.2012 some problem developed in the operated eye and 1st opposite party found the problem and prescribed medicines but since no relief, the patient approached 1st opposite party on 10.03.2012. Opposite party No.1, prescribed some medicine, without proper diagnosis and asked the patient to continue the medicine up to 14.03.2012. As there is no relief, again the patient approached 1st opposite party, who send the patient to 2nd opposite party Pushpagiri Eye Institute, Secunderabad, along with clinic attendant of 1st opposite party by name Kareem Basha for further investigations. On 14.03.2012, medicines were given by 2nd opposite party for 15.03.2012 and 16.03.2012. The said Kareem Basha, attendant of 1st opposite party took the patient to 3rd opposite party Sarojinidevi Eye Hospital on 19.03.2012 under the instructions of 1st opposite party without the assistance of any of the family members of the patient. Complainants worried much they were not informed about the health condition of the patient, as they were away from the patient.
4. Complainants were told that on 21.03.2012, again the patient underwent surgery in Sarojinidevi Eye Hospital as fungal corneal ulcer developed and he was discharged on 24.03.2012. Again on 26.03.2012 the eye was examined and found no improvement. On 30.03.2012 again the patient approached 1st opposite party, who said that there is infection in the operated left eye. Once again the 1st opposite party sent the patient to 2nd opposite party, who advised on 12.04.2012 to start oral steroids. Instead of improvement in condition, it became serious due to fungal infection. Patient could not take food from 19.04.2012 onwards. Complainants reported the problem to 1st opposite party, he advised the patient to stop oral steroids and prescribed eye drops on 21.04.2012. Since the patient condition is deteriorated and suffered severe irritation and burning sensation in stomach, 1st opposite party suggested to take the patient to Bangalore or Kurnool. On 22.04.2012 patient was taken to St. John Hospital, Bangalore, where the doctors said that entire system of eye and kidney were collapsed, on the same day, the patient died even before starting any treatment. St. John Hospital gave Death Certificate of M.Sreenivasa Reddy (patient) mentioning the cause of death is hypovolemic shock, acute kidney injury, hyperkalamia and antecedent cause – left eye fungal endophthalmitis, due to gross negligence on the part of opposite parties 1 to 3 in prescribing medicines and steroids, patient died. Hence the complaint.
5. Opposite party No.1 filed his counter (written version) on 24.05.2013 admitting that he conducted the cataract operation on 27.02.2012 to the patient by name M.Sreenivasa Reddy, after ascertaining the general health condition of the patient is suitable for operation and discharged the patient on 28.02.2012 after he found that the vision was good and prescribed standard protocol post operative treatment. Opposite party No.1 reviewed the patient on 03.03.2012 and found his vision and condition was good and advised follow-up check-up on 13.03.2012.
6. On 10.03.2012 the patient came to 1st opposite party, on examination 1st opposite party found some inflammatory changes over cornea and suggestive of fungal infiltrates, 1st opposite party started standard protocol treatment for fungal inflammation and even after 4 days treatment, the inflammation did not respond, as such 1st opposite party informed the relatives of the patient about the need to shift the patient to higher center where expert corneal services and vitro retinal services and advanced investigative facilities will be available to manage the fungal inflammation. Opposite party No.1 admitted that he sent his clinic assistant to higher center with a sympathy as requested by the 1st complainant, that 1st opposite party not aware of the procedures adopted by opposite party Nos.2 and 3 and the treatment given by them. Opposite party No.1 advised the patient when he approached twice or thrice to follow the treatment prescribed by opposite parties 2 and 3. The St. John Hospital gave Death Certificate without any investigation and without Postmortem examination. There is no record how the patient died. He further contended that he is a senior surgeon with 25 years of experience in performing eye surgeries in Ananthapur town. He is following standard protocol treatment with all precautionary measures to the patients. There is no negligence or deficiency in service on the part of opposite party No.1. The patient is aged about 70 years, there will be chance of other ailments due to old age, which contributes cumulative factors to cause of the death. Opposite party No.1, denied other allegations made in the complaint and prays the Forum to dismiss the complaint against 1st opposite party with costs.
7. Opposite party No.2 filed his written version / counter contending that 2nd opposite party did not conduct any surgery and there is no deficiency in service on the part of opposite party No.2. That the patient is referred to 2nd opposite party by the 1st opposite party. The patient came to 2nd opposite party on 15.03.2012 for the first time and informed that 1st opposite party conducted cataract operation to the left eye of the patient. The patient was examined as out-patient by Dr.L.V.Krishnamraju on 15.03.2012. On 26.03.2012 M.Sreenivasa Reddy came to 2nd opposite party with a history of “therapeutic corneal grafting” done at Sarojini Devi Eye Hospital on 21.03.2012. On examination of left eye on 26.03.2012 opposite party No.2 found Conjunctive Congestion, graft host junction opposed well, presence of blood clots all over iris and presence of IOL (intraocular lens). The left eye had evidence of continued infection in the Cornea. The 2nd opposite party advised to continue the treatment prescribed by Sarojini Devi Eye Hospital (3rd opposite party) and advised the patient to visit again within 4 or 5 days. The patient did not visited as advised but the patient visited the hospital only on 03.04.2012 and 12.04.2012. The examination reveals evidence of continued infection in the cornea and the patient never reported thereafter to opposite party No.2 for any kind of treatment. The patient M.Sreenivasa Reddy was advised local antibiotic treatment consequent to his undergoing to cataract surgery for corneal infection. There is no negligence on the part of opposite party No.2 and it is not liable for the loss of life of M.Sreenivasa Reddy. Opposite party No.2, denied all other allegations made against it in the complaint and prays the Forum to dismiss the case against opposite party No.2 with costs.
8. The 3rd opposite party (Sarojinidevi Eye Hospital) filed its written version / counter denying the complaint allegations parawise in his written version from Para.1 to 18 and further contended that as per record M.Sreenivasa Reddy underwent cataract surgery on 27.02.2012 and he was discharged on 28.02.2012 at Ananthapur, later he was seen by operating surgeon, who prescribed medicines and again reviewed on 10.03.2012, as there was no relief of pain, again he was prescribed medicine by operating surgeon and later referred the patient to Pushpagiri Eye Institute (opposite party No.2) on 14.03.2012. The patient was treated at Pushpagiri Eye Institute on 15.03.2012 and 16.03.2012 and later referred to 3rd opposite party on 19.03.2012 ( all these admissions are against its contest at para.6 and 7 of its written version / counter)
9. The patient was operated by 3rd opposite party on 21.03.2012 explaining that the surgery was done only for removal of infection and the patient agreed for surgery by the group of doctors of opposite party No.3. The patient stayed and took treatment up to 03.04.2012, thereafter the patient left to 2nd opposite party. The opposite party No.3 has filed all the relevant records containing the details of treatment in the Forum. There is no deficiency in service on the part of opposite party No.3 and prays the Forum to dismiss the case against opposite party No.3 with costs.
10. The 1st complainant has examined as P.W.1 and got marked Exs.A1 to A16. Opposite parties were examined as R.W.1 to 3 and got marked Exs.B1 and B2. The learned counsel for complainant and opposite parties 1 to 3 have filed their respective written arguments.
11. Now the points for consideration are:-
(i). Whether there is deficiency in service on the part of opposite parties
1 to 3?
(ii). Whether there is over dosage of prescribing medicines?
(iii). Whether the complainants are entitled to the reliefs sought for?
(iv). To what relief?
12. Point No.(i):- before answering this point, it is necessary to note what is medical negligence. Negligence is not susceptible of any precise definition. Various meanings may be contributed to negligence.
13. Firstly, negligence connotes carelessness state of mind. A doctor prescribing drugs with dangerous side effects, without informing the patient about the risk of those side effects and without carrying out the recommended tests, whether such side effects are happening or not, is guilty of carelessness in exposing the patient to the risk of suffering from those side effects of the drugs. This meaning of negligence is the basis for criminal liability. Secondly, negligence is a careless conduct without reference to any duty to take care i.e. ‘negligence Per-se’ (contributory negligence) and Lastly, negligence refers to breach of legal duty to take care. Negligence means more than heedless or careless conduct whether any omission or commission, it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing.
14. The patient when feel the deficiency in service having referred to the cumulative effect of negligence of concern. Negligence on the part of each of the treating doctors is also may have been the contributing factors to the ultimate death of the patient. But, in a case of this nature, the Court must deal with the consequences the patient faced, keeping in view the cumulative effect. In the instant case negligence action has been noticed with respect to more than one opposite party. A cumulative instance, therefore, has lead the death of the patient.
15. The medical negligence has been defined otherwise as “bad or unskillful practice on the part of a doctor or surgeon resulting in injury to the patient or the failure for a doctor to exercise the required degree of care, skill and diligence, it can also be said otherwise that “medical negligence” means failure on the part of the doctor to act in accordance with medical standards in vogue, which are being practiced by a ordinarily and reasonable competent man practicing the same profession. A doctor when consulted by a patient owes him certain duties viz. 1) a duty of care in deciding whether to undertake the case 2) a duty of care in deciding what treatment to give and 3) a duty of care in the administration of that treatment. A breach of any these duties gives a right of action for negligence to the patient, in other words, we can say that the aggrieved person must be able to establish to the satisfaction of the Court that 1) the doctor owes his duty of care of a particular standard of professional conduct 2) the doctor breach that duty 3) the patient suffered actual damage and 4) the doctors conduct was direct and proximate cause of damage.
16. It is also to be noted the precautions that were to be taken by a doctor before cataract surgery 1) get a accurate patient history, in particular, competent information of trauma, previous operations, diabetes, dried eye, amblyopia and conjectural abnormalities 2) perform a thorough eye examination, this should include a) measuring best corrected visual activity, this will determine whether a potentially risk operation should be attempted or avoided b) slit lamp examination with dialated pupil: many potential problems become visible when the pupil dialated. A slit lamp examination will identify, most problems to be faced during surgery, such as subluxated lenses, check the maturity of the lens, the condition of the capsule and whether the cataract really is the cause of the patient’s poor vision, before deciding to perform a potentially risky operation. C) measuring intraocular pressure: It is important to measure intraocular pressure in all patients for example to identify glaucoma d) Fundus examination: the fundus can be seen through all, but the densest cataracts, therefore, a doctor has to do a B-Scan if the medium is not clear, this examination should be able to identify problems of signs which indicate that the operation may not be straight forward. During the examination the doctor will need to pay attention to the following areas, which are discussed in this articles 1) infection 2) potential visualization problems 3) anatomy of the anterior segment 4) crystalline lens profiles and 5) other health conditions.
17. Any infection in around the eye could lead to ENDOPHTHALMITIS, infections should, therefore, be treated before surgery. A blocked and infected lacrimal sack may cause ENDOPHTHALMITIS. It is extremely important to check the sac potency before surgery. Entropion, Ectropion and lagophthalmos, these eye may have corneal exposure before and after surgery. Eye lashes, rubbing on the eye are a source of infection. In such eyes, the post operative use of steroids may precipitate a corneal ulcer. In addition, lack of a proper lid closure mechanism will not allow the eye drops installed to stay in the conjunctival sac. These 3 conditions need to be corrected by surgery before the doctor can contemplate a cataract extraction.
18. It is an admitted fact that Dr.Bayapu Reddy, 1st opposite party (R.W.1) conducted cataract surgery of left eye to the patient by name Sreenivasa Reddy on 27.02.2012 and the patient was discharged on 28.02.2012. It is also evident on record that patient was not admitted in the hospital of 1st opposite party either before the day of operation or atleast one or two days before surgery. No specific tests were conducted or investigations were done on the date of operation or the day preceding the date of operation. The precautions to be taken by the doctor, who is going to perform cataract operation were already noted supra. None of those precautions were followed by opposite party No.1. The opposite party No.1 deposed in his evidence that he has conducted necessary tests before surgery. According to the documents marked on behalf of the complainants Ex.A1 is lab report of Mahaveer Diagnostic Services, Ananthapur, dt:17.09.2011 about more than 5 months prior to the date of cataract operation (27.02.2012). Ex.A2 is Eye Test Report / Consultancy Sheet by opposite party No.1 dt:27.07.2011 i.e. around more than 6 months prior to the date of cataract surgery. Ex.A4 is the out patient card issued by opposite party No.1 in favour of diseased Sreenivasa Reddy dt:18.02.2012 i.e. 9 days prior to the date of surgery. Diagnosis is Cataract Left Eye and treatment given is Moxizen eye drops morning, noon and evening. Except this no other examinations or investigations or tests were conducted by opposite party No.1 before performing the cataract surgery of left eye of the patient Sreenivasa Reddy. Another document is Ex.A5 the discharge summary issued by 1st opposite party Dr.P.Bayapu Reddy, according to which Card No.693, Date of Admission of patient Sreenivasa Reddy 27.02.2012, Date of Operation 27.02.2012, Date of Discharge 28.02.2012. Except this nothing is there to say that 1st opposite party has conducted any investigations before surgery. While discharging the patient, follow-up treatment suggested is Predmet eye drops were prescribed for first weeks 6 times a day i.e. 7 a.m, 10 a.m, 1 p.m., 4 p.m., 7 p.m., 9 p.m. For the second week 5 times i.e. 7 a.m., 11 a.m., 2 p.m., 5 p.m., and 9 p.m., No prescription for subsequent weeks / subsequent days. Then FBN eye drops were suggested by 8.30 a.m. and 8.30 p.m. for 20 days. Moxizen eye drops was suggested at 8 a.m., 2 p.m, and 8 p.m. for 7 days, perhaps it may be in continuation of the Predmet eye drops, apart from it Ciplox 500 mg. tablets were prescribed for 6 days and Diclomol tablets were prescribed for another 6 days. The Discharge Summary was a printed card. There were strikings in the names of eye drops and tablets on the first page of Ex.A5, some post operative instructions were given. Review date is given as 03.03.2012 and 13.03.2012. When the patient approached opposite party No.1 (R.W.1) on 03.03.2012, complained pain in the operated eye, for which 1st opposite party found the vision and condition was good and advised follow-up check-ups on 13.03.2012, according to the written version of opposite party No.1, but as there was no improvement, the patient again met the 1st opposite party on 10.03.2012. On examination of the eye of the patient Sreenivasa Reddy, opposite party No.1 found some inflammatory changes over cornea and suggestive of fungal infiltrates and he has prescribed some medicines stating that it is common in operated cases and advised the patient to continue the treatment for 4 days. Even after 4 days of using that treatment since no improvement was found, the patient was sent to the hospital of opposite party No.2, a reputed hospital by name Pushpagiri Eye Institute, Secunderabad, through one Kareen Basha, the clinic attendant of opposite party No.1, where the patient was examined by R.W.3 Dr.K.Srinivas Prasad, who is the consultant doctor in opposite party No.2 and he advised treatment for 15.03.2012 and 16.03.2012, later the patient was taken away by the clinic attendant of opposite party No.1 to opposite party No.3 on 19.03.2012. At the time of sending the patient Sreenivasa Reddy to opposite party No.2 or opposite party No.3, none of the family members of the patient were accompanied him, since no information was given to them by opposite party No.1, but he was accompanied by Kareem Basha, clinic attendant of opposite party No.1 admittedly. Later the patient and family members were told that, on 21.03.2012 patient was again got operated, as there was fungal matter developed and it was removed and they called it as Fungal Corneal Ulcer and discharged on 24.03.2012. On 21.03.2012 operation for removal of fungal matter was done by R.W.3 Dr.Srinivas Prasad, they prescribed some medicines after operation. The eye was once again tested on 26.03.2012 and it was found no improvement in the condition of the eye.
19. Thus, till 14.03.2012, the patient Sreenivasa Reddy was under the supervision of 1st opposite party. The mistakes that were committed by 1st opposite party are that he has not conducted any investigations or tests over the health condition or the status of the eye of the patient before going for cataract surgery. The infection was found developed on 10.03.2012 i.e. within 11 days after the cataract operation. Later, opposite party No.1 on observing the infection, he sent the patient to opposite party No.2 by sending his clinic assistant Kareem Basha, alone (without any family member of the patient) along with the patient, that too without informing the family members of the patient. Opposite party No.2 on examining the patient on 14.03.2012 advised some medicines for 15.03.2012 and 16.03.2012, but without coming back to 2nd opposite party, the said Kareem Basha, attendant of 1st opposite party has taken the patient to opposite party No.3 on 19.03.2012 and again operation was conducted on the left eye (operated eye) for removal of fungal matter that was formed in the operated eye and they have called the same as Fungal Corneal Ulcer and discharged the patient on 24.03.2012. Even after the said second operation also there was no improvement in the condition of the eye and the same was reported to opposite party No.1 on 30.03.2012, then opposite party No.1 advised the patient to go to Bangalore or to Kurnool. Later, they have taken the patient to St.John Hospital, Bangalore, where he died on 22.04.2012. To fix the liability of opposite party No.1, there is sufficient material viz. cataract operation was conducted without conducting investigations or tests before cataract operation either on the day of operation or prior to preceding day of operation. When the patient complained severe pain in the operated eye and oozing of water, they have administered steroids. The infection was developed on the 11th day of cataract operation itself, without informing the family members of the patient, the patient was sent to Pushpagiri Eye Hospital at Secunderabad (2nd opposite party) and without informing the family members of the patient second operation was conducted on 21.03.2012 in the hospital of opposite party No.3 (Sarojinidevi Eye Hospital, Hyderabad). R.W.1 i.e. Dr.Bayapu Reddy himself admitted that he has not maintained any record in his hospital with regard to cataract surgery of the patient Sreenivasa Reddy, it is quite against to the conditions laid down in the Indian Medical Counsel Act 1956. Though R.W.1 Dr.Bayapu Reddy gave evidence in the Forum, that he has not produced any medical record from his hospital in respect of the patient stating that he has not maintained any such record, thus he has violated the principles laid down in the Indian Medical Council Act 1956. All these facts establishes that there is negligence and deficiency in service on part of the opposite party No.1. Relied on the decision cited by the complainant, reported in 1(2012) CPJ 26 (NC) in V.V.Sathaye Dr. Vs. Himatlal Girdharilal Singala & Anr.
20. R.W.1 Dr.Bayapu Reddy being the senior and experienced surgeon in cataract operations, has not taken B-Scan in respect of the eye of the patient. The Death Certificate under Ex.A15 issued by St. John’s Hospital, Bangalore, discloses the cause of death as follows – the patient died due to “HYPOVOLEMIC SHOCK, ACUTE KIDNEY INJURY, HYPER KALEMIA, ANTECEDENT CAUSE – LEFT EYE FUNGAL ENDOPHTHALMITIS”. When the disease of Endophthalmitis develops? Any infection in or around the eye could lead to Endophthalmitis. Opposite party No.3 conducted anterior vitrectomy on 21.03.2012, when such operation is necessary? An anterior vitrectomy is necessary if the posterior capsular is torn. So, presumption could be drawn that while conducting cataract surgery by opposite party No.1, the posterior capsular might have torn, that is why anterior vitrectomy become necessary. On this ground also, the medical negligence can be contributed to opposite party No.1. Thus the acts of opposite parties 1 to 3 were cumulatively affected and lead to collapse of entire system of eye and kidneys as observed by the doctors at St. John Hospital, Bangalore. Therefore, all the three opposite parties are jointly and severely liable for causing the death of the patient.
21. It also can be observed that the following symptoms of using / administering over dose steroids altered mental status with 1) agitation pherychotis 2) burning or etching skin 3) convulsion 4) deafurs 5) depression 6) high blood pressure 7) increased infection risk, mostly weakness, nervousness, sleepiness, swelling to legs, ankles, feet, week bones, bone fractures, weakness etc. Because of the steroids administered to the patient, he suffered severe pain in the operated eye and burning sensation in his stomach, physical weakness and stopped taking food.
22. The primary allegation that was made against the opposite party No.1 is that he has used the un-sterilized or improper instruments for the surgery, unless it is true, there may not be development of fungal infection on the 11th day of surgery itself. Under the above circumstances, we are of the opinion that there is gross negligence, more so, the medical negligence on the part of opposite party No.1 and opposite parties 2 and 3 as well, in conducting operations once on 27.02.2012 by 1st opposite party and again on 21.03.2012 by the doctors of opposite party No.3 and they are liable for the death of the patient.
23. Point No.(ii):- As could be seen from the record, eye drops prescribed by R.W.1 Dr.Bayapu Reddy (1st opposite party) and R.W.3 Dr.Srinivas Prasad, who is the consultant doctor of opposite party No.2 and he is the doctor, who performed second surgery on 21.03.2012 for the operated eye i.e. left eye, have prescribed the following medicines.
1. | Predmet Eye Drops. |
2. | Alcon Vigamox 5 ml sterile |
3. | Natamet Eye Drops |
4. | FBN Eye Drops |
5. | Mahaflox Eye Drops |
6. | Vozole Eye Drops 1% w/v |
7. | Iotim (Timolol Maleate) Eye Drops |
8. | Natacin Eye Drops |
9. | Moxizen Eye Drops |
10. | Cyclofez Eye Drops |
11. | Cyclogik Eye Drops |
12. | Timolet Eye Drops |
13. | Homide Eye Drops |
14. | Flur (Allergan) Eye Drops |
15. | Ofen Eye Drops |
16. | Zymar Eye Drops hourly |
17. | Fortified Cephazoliac Eye Drops |
18. | Fortified Amikacy Eye Drops hourly |
19. | Atropin Eye Drops |
20. | Tears Plus Eye Drops |
21. | Voriconazole Eye Drops |
22. | Vigamox Eye Drops |
| Tablets: |
1. | Ciplox500 mg. |
2. | Diclomol 50 mg. |
3. | Razo-D |
4. | Fluconozole |
5. | Vit-C |
6. | Diamox |
7. | Ketoconazole 200 mg. |
8. | Rantac 150 mg. |
9. | Dolo 650 mg. |
10. | Fesovit |
11. | Sanabox |
| Injections:- |
1. | Amicacin. |
The above said medicines were prescribed and administered from 27.02.2012 to till the patient left to Bangalore. On 12.04.2012 opposite parties 2 and 3 started oral steroids, later when the patient complained that he is suffering from severe pain in the operated (left) eye and burning sensation in the stomach, they were asked to stop the oral steroids and continue the eye drops. On 21.04.2012 when the patient felt severe irritation and burning sensation in the stomach and complained the same to opposite party No.1, he said that acidity developed and asked the patient wait for one more day or to take the patient to Bangalore or Kurnool, which clearly shows that the patient was kept under the control of opposite parties 1 to 3. In this connection, we have to state that hospitals are institutions, pupil expect better and efficient services. If the hospitals fails to discharge their duties through their doctors being employed on job basis, it is the hospital, who has to justify and not impleading a particular doctor, will not absolve the hospital of its responsibility. If it is the case of bona fide mistake, which under certain circumstances may be excusable. A mistake which would tantamount to negligence cannot be pardoned the doctor, who treated the patient with due care and caution, skill and diligence. In case where a doctor act carelessly and in a manner in which, is not expected of a medical practitioner, then in such a case an action in torts would be maintainable. In case of bona fide mistake on the part of doctors, the Court can accept that ordinary human fallibility precludes the liability, while in the case of mistake which tantamount the negligence, the conduct of the defendant / doctor is considered to have wrong beyond bounced of what is expected of a skilled and reasonably competent doctor
24. Once allegation is made that the patient was admitted in a particular hospital and evidence is produced to satisfy that he died because of lack of proper care and due to negligence, then the burden lies on the hospital to justify that there was no negligence on the part of the treating doctor or hospital. Therefore, in any case, the hospital is in better position to disclose what care was taken or what medicine was administered to the patient. The medicines, which were administered to the patient Sreenivasa Reddy were already listed supra. But the opposite party No.1 failed to produce any medical record in respect of the deceased Sreenivasa Reddy. In this regard, the learned counsel for complainant relied on a decision reported in 1(2012) CPJ 26 (NC) V.V.Sathaye (Dr.) Vs. Himatlal Girdharlal Singala & Anr. The facts of the case in brief are that the respondent underwent cataract surgery for his right eye with the petitioner / doctor on 15.06.1998 by phako emulsification on payment of Rs.6,500/-. On the day following the surgery, respondent developed swelling and pain in the operated eye because of complications which did not respond to treatment and eventually he lost complete vision in the right eye. According to the respondent, this occurred because of negligence on the part of the petitioner / doctor, who did not take due care during the surgery because of which the eye developed infection and endophthalmitis. Petitioner / doctor denied the allegation but admitted that the cataract surgery conducted by him was successful and that respondent was examined on 16.06.1998 and discharged on that day without any complaint since his condition was satisfactory, the respondent complained of swelling and pain in right eye for the first time on 20.06.1998, as such he is not responsible for the complications developed in the patient. District Forum allowed the complaint and granted compensation of Rs.2,00,000/-. Appeal of the petitioner before State Commission was dismissed. The Hon’ble National Commission also dismissed the appeal confirming the order of the State Commission, upholding the order of District Forum, holding that the petitioner / doctor is guilty of medical negligence, which constitute deficiency in service. Facts of this decision were applicable to the facts of the case on hand.
25. So far as liability is concerned, here, a well recognized distinction a “contract of service” and a “contract for service” defined in the Halsbury’s Laws of England, IV Edition, Volume.16, Para.501 – Dharanga Dhara Chemical Works Ltd Vs. The State of Saurashtra 1957 SCR 152 at Page.157 (AIR 1957 SC 264) A “contract for services” implies a contract where by one party undertakes to render services, example professional or technical services to or for another in the performance of which he is not subject to detailed direction and control but exercises professional of technical skill and used his own knowledge and discretion. A “contract of Service” implies relationship of master and servant and involves an obligation to obey orders in the work to be performed and an obligation to obey orders when the work to be performed and as to its mode and manner of performance (Stroud’s Judicial Dictionary, V Edition, P.540) – Simmons Vs. Health Laundry Company 1910 (1) KB 543 so the definition of contract for service attracts the activities performed by the opposite party No.1, he himself on behalf of his Suma Eye Hospital, has conducted the cataract eye operation without following the recommended procedure, where as the contract of service applies to both opposite party No.2 and opposite party No.3 on behalf of whom R.W.3 has examined and given treatment to the patient for 15.03.2012 and 16.03.2012 and the same doctor R.W.3 Dr.Srinivas Prasad conducted second surgery for removal of fungal corneal ulcer on 21.03.2012 in the hospital of opposite party No.3. Therefore, the contract of service applies to opposite parties 2 and 3 and they are liable for the death of Sreenivasa Reddy. Due to the negligence on part of opposite parties 1 to 3, in conducting operation by R.W.1 on 27.02.2012, and by R.W.3 on 21.03.2012 (2nd operation) even without informing about the proposed 2nd operation to the family members of the patient. In the absence of any document to show that consent of either the patient or of his relatives or his family members or even to the attendant who accompanied the patient. In Ex.B2 (consisting of 16 pages now numbered), it is observed some pages in original in between pages 6 and 7, pages 8 and 9, and pages 12 and 13 were removed or torn-out. Pages available are in different colours. Ex.B2 appears to have been erected to shield the latches on part of the opposite parties 1 to 3. Citation for complainant 1(2006) CPJ 16 (NC) Dr.Shyam Kumar Vs. Ramesh Bhai Hanuman Bhai Kachhiya. Facts of the decision: Ramesh Bhai Hanuman Bhai filed a complaint No.56/95 against petitioner, before the District Forum, Nadiad for the alleged medical negligence and deficiency in service. In January 1991, respondent developed difficulty in vision and approached the petitioner for treatment. Glaucoma was diagnosed in both eyes and the petitioner operated left eye on 09.01.1992 and right eye on 21.04.1992 on an assurance that his vision would improve. The respondent continued checkups and took required medicines but there was no improvement. On 16.06.1992, the petitioner performed cataract operation on right eye, yet there was no improvement. The petitioner referred him to Dr.Shroff at Navsari as the retina of the respondent eye was weakened. Dr.Shroff stated that the retina in both the eyes of the respondent is not in good condition, because of which the respondent is not having vision in his eyes. The Civil Surgeon of Nadiad also issued 100% disability (vision) certificate. Since he lost vision after treatment, respondent filed a complaint before the District Forum against the petitioner claiming Rs.5,00,000/- compensation. District Forum held that there is deficiency in service and directed the petitioner to pay Rs.1,85,000/- with 12% interest from the date of complaint. State Commission dismissed the appeal of petitioner. The National Commission uphold the orders of the State Commission holding that the petitioner failed to explain the reasons, as to why the complainant lost his vision.
26. The learned counsel for the opposite parties specifically raised a point that in this case an expert opinion is required, but the complainants failed to produce any expert opinion. The learned counsel for the complainants argued that the respondents 1 to 3 themselves are experts in the field, therefore, they need not go for any expert opinion. We are unable to convince with the submission made by the learned counsel for the complainants but when the facts themselves are prima facie establish the negligence or deficiency of service on the part of opposite parties 1 to 3 more particularly on the part of opposite party No.1, there is no need to go for expert opinion. In this connection, I am relying on a decision of Hon’ble National Commission in Dr.V.Tahwa Vs. Surinder Mohan Bose reported in IV (2004) CPJ 1 (NC) in which their Lordships held that regarding expert evidence Hon’ble National Commission found that B-Scan is pre-requisite for an eye operation because it is only this test would have given the status of the eye including that of the status of retina, detachment which came to the knowledge of the appellant during surgery in cataract operation normally IOL could have implemented but it may not be done because the status of the eye which a normal doctor could ascertain by B-Scan was not obtained by the appellant and yet went on surgery leaving loss of eye of the complainant, which is a clear cause of negligence and there was no requirement of any expert evidence. The facts of the above decision are squarely applicable to the facts of the case on hand in which the opposite party No.1 did not go for B-Scan before conducting cataract operation for the left eye of the patient Sreenivasa Reddy and he proceed further and conducted surgery. In the case referred to above the patient lost his eye, whereas in the case on hand, because of the negligence and carelessness of opposite party No.1 and also opposite parties 2 and 3 as well, the patient lost his life. The learned counsel for opposite party No.1 relied on two decisions 1) 2009 ACJ 1695 (SC) – Martin F. D’Souza vs. Mohd. Ishfaq and 2) 2005 ACJ 1840 (SC) – Jacob Mathew Vs. State of Punjab & Anr, Facts of these two decisions are different and not applicable to the facts of the case on hand. Under those circumstances, we are of the opinion that administering over dose of eye drops might have created complications leading to development of fungal infection, which the doctors called Fungal Corneal Ulcer, which leads to failure of ophthalmic system and kidneys, which finally leads to the death of Sreenivasa Reddy. Thus the result of over dosage drugs in our opinion is not appropriate treatment and the treatment is given under carelessness and negligence. Accordingly this point is answered.
27. Point No.(iii):- In view of the discussions in points 1 and 2, we are of the opinion that due to negligence on the part of the doctors more particularly on the part of opposite party No.1, who used improper or un-sterilized instruments for cataract surgery and also because of the high dosage of eye drops i.e. 20 types of eye drops including steroids within a span of 1 month 23 days, apart from tablets and injections, a fungal infection was developed and it leads to endophthalmitis, consequently the patient lost his life. The opposite party No.1 in his written version / counter contended that the doctors at St. John Hospital, Bangalore, did not examine the patient and even no postmortem was conducted inspite of it they have given their causes with regard to the death of Sreenivasa Reddy and they opined that the death is due to Hypovolemic shock with acute kidney injury with hyper kalemia antecedent cause – left eye, fungal endophthalmitis. The hyper kalemia denotes higher stage of potassium i.e. increasing potassium levels, as such it might have developed because of high medication / over dosage of medication.
28. The 1st complainant being the wife of deceased Sreenivasa Reddy lost her spouse at the age of 65 years and complainants 2 to 5 lost their father, apart from all these factors, the evidence of P.W.1 (the 1st complainant) remained un-challenged as she was not cross examined by any opposite party. Considering the facts and circumstances of the case, we are of the opinion that the complainants are entitled for compensation against the opposite parties 1 to 3 because of whose negligence the 1st complainant lost her spouse and complainants 2 to 5 lost their father Sreenivasa Reddy. Accordingly this point is answered.
29. Point No.(iv):- In view of our discussion in points 1 to 3, we are of the opinion that under the facts and circumstances of the case, the complainants are entitled to compensation and complaint is to be allowed against opposite parties 1 to 3.
In the result, the complaint is allowed in part awarding compensation of Rs.2,50,000/- (Rupees two lakhs fifty thousand only). The apportion of compensation is as follows. Out of Rs.2,50,000/- , the first opposite party i.e. Dr.Bayapu Reddy, is hereby directed to pay Rs.1,00,000/- (Rupees one lakh only) and opposite parties 2 and 3 are directed to pay Rs.75,000/- (Rupees seventy five thousand only) each and opposite parties 1 to 3 are hereby further directed to pay a sum of Rs.3,000/- (Rupees three thousand only) towards costs of the litigation. Opposite parties 1 to 3 are further directed to comply with the orders within six (6) weeks from the date of receipt of copy of the order, failing which the award amount of Rs.2,50,000/- shall carry interest at 9% p.a. from the date of complaint, till realization.
Typed to dictation by the stenographer, corrected by me and pronounced in the Open Forum this the 14th day of May, 2015.
Sd/- Sd/-
Lady Member President
APPENDIX OF EVIDENCE
WITNESS EXAMINED ON BOTH SIDES
WITNESSES EXAMINED ON BEHALF OF COMPLAINANT.
PW-1: M.Nagarathnamma
WITNESSES EXAMINED ON BEHALF OF OPPOSITE PARTY.
RW-1: Dr. Bayapu Reddy
RW-2: Dr. K. Viswanath (Chief Affidavit filed).
RW-3: Dr. K.Srinivas Prasad
EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT
Exhibits (Ex.A) | Description of Documents |
Lab Report of the patient Dt: 17.09.2011. (Original). | |
Opposite Party-1 Consultancy Sheet. Dt: 27.07.2011. (Original). | |
Lab Report Naseera Diagnostic Centre. Dt: 13.02.2012. (Original). | |
Suma Eye Clinic out patient card. Dt: 18.02.2012. (Original). | |
Discharge Summery Sheet. Dt: 28.02.2012. (Original). | |
Prescription of Opposite Party-1. Dt: 10.03.2012. (Original). | |
Prescription of Opposite Party-2. Dt: 15.03.2012. (Original). | |
Prescription (2) of Opposite Party-1. Dt: 30.03.2012. (Original). | |
Prescription (2) of Opposite Party-2. Dt: 03.04.2012. (Original). | |
Letter of Advice by Opposite Party 2. Dt: 12.04.2012. (Original). | |
In-Patient Medical Record of Patient issued by Opposite Party 3. Dt: 19.03.2012 to 24.03.2012. (Original). | |
ID Card of Patient with Opposite Party 2. Dt: 15.03.2012. (Original). | |
Drug Bills (4 Nos) Dt: 07.03.2012, 10.03.2012, 12.03.2012, 13.04.2012. (Original). | |
St. John College Hospital Opposite Party Card. Dt: 22.04.2012. (Original). | |
Death Certificate of patient issued by St. John College Hospital with cause of Death. Dt: 22.04.2012. (Original). | |
Cloth cover containing various drugs prescribed by opposite parties 1 to 3 |
EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/s
Exhibits (Ex.B) | Description of Documents |
1. | A Photo copy of Text book of Ophthalmology. |
2. | Case sheet of Patient No.3819/12. (Original) |
Sd/-
President
// TRUE COPY //
// BY ORDER //
Head Clerk/Sheristadar,
Dist. Consumer Forum-II, Tirupati.
Copies to:- 1. The Complainants.
2. The opposite parties.
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