The complaint case in a nutshell can be reproduced in a precise manner as hereinunder :
1) The Complainant went to the chamber of the OP No. 2 for treatment of his eye on 06.11.2009. The doctor OP No. 2 advised for admission in his OP No. 1 EMLC for urgent operation. On being informed the complainant was informed that he was suffering from cataract. The complainant got admitted in OP No. 1 EMLC on 06.11.2009 at 8 a.m. and the doctor without having blood sugar examination and other medical checkup report relating to that operation the OP No. 2 started operation of the complainant’s left eye on 06.11.2009.
2) During the course of operation due to some difficulties complainant was speedily discharged at 4 p.m. The paramedical attendants handed over discharge certificate directing the complainant to meet Dr. Abhrajit Chatterjee for further treatment. The complainant was bound to leave the administration with discharge certificate and after payment.
3) The complainant as per discharge certificate went to Alokon at Lake Town, Kolkata at OP No. 3 treating centre. Dr. Abhrajit Chatterjee examined the left eye on 06.11.2009 at 7 p.m. in the said treatment centre of OP No. 3 and without any document the OP No. 3 made operation at 8.30 p.m. on 06.11.2009 and complainant was discharged on 07.11.2009. The complainant was told for follow of treatment to get back his vision on left eye gradually. The complainant was under treatment of OP No. 3 for a prolonged period. But he did not get his vision.
4) On 19.11.09 the complainant went to Sankar Netralaya. Various examination was done for his left eye by the team of doctors leaded by doctor Chetan Rao. The complainant was told by the doctors of Sankar Netralaya regarding poor treatment by the OPs in this case. The complainant was discharged on 24.12.2009 with a case summary which is self-explicit one.
5) The allegation is that due to the improper treatment imparted by OPs the complainant became blind and the complainant, who is the only earning member of his family, is unable to earn Rs. 10,000/- per month. The complainant is now under the treatment of Dr. Chetan Rao of Sankar Netralaya to save his right eye. On the above premises complainant attributes charge of negligency upon the OPs which caused the blindness of left eye of complainant forever. Hence, this case with relief as per application and with reliefs laid down in Para 21 of complaint.
6) The OP No. 1 & OP No. 2 has contested the case by filing W/V denying, inter alia, all the material allegations aroused by the complainant against them, themselves. The positive case of OP No. 1 & 2 in a conscience form stands that OP No. 1 Dr. Arup Kumar Bose examined the complainant on 13.10.2009 and complainant was examined and after observing all the parameters before operation which is needed for surgical operation was done that is Blood Sugar, ECG and other essentials before operation was done by the OP No. 1 and date of operation was fixed on 06.11.2009. On 06.11.2009 total 7 cases for Phacoemulsification with IOL implantation and one case for oculoplasty were there. 8 cases were posted by surgery and were operated on 6.11.09 by OP No. 2.
7) The patient Siba Prasad Mukherjee was incidentally discharged after discharge of all other patient because OP No. 2, being anterior segment surgeon while operating the cataract by Phacoemulsification, knew his limitation and as dealing operation the OP No. 2 found that the posterior capsule was dehiscent and the nucleus has dropped posteriorly and needed to be dealt with by a Vitreo Retinal Surgeon. So, Dr. Bose contacted with the Vitreo Retinal Surgeon Dr. Abhrajit Chatterjee on the same day at 5 p.m.
8) Accordingly, the complainant was given discharge certificate along with referral sheet for submitting before Dr. Abhrajit Chatterjee at Alokon and the patient party went to Alokon with those documents. The Dr. OP No. 2 himself took all such care and himself wrote the name, address, mobile no. of the said doctor namely Dr. Abhrajit Chatterjee of Alokon and in addition he also wrote the mobile no. of Aloka Madam, the administrator of OP No. 1. The OP No. 2 explained brief summary of the operation to the OP No. 4 in referral sheet.
9) The OP No. 4 attended the complainant and admitted him for treatment along with the papers given by OP No. 2. After treatment OP No. 3 discharged the complainant on 07.11.2009 and OP No. 4 told complainant to come again. But complainant did not go to OP No. 3 rather complainant went to Sankar Netralaya on 19.11.2009 wherein he was treated. But the complainant did not file documents, treatment sheet in Sankar Netralaya. The complainant also did not file pre-operative documents in this case. Main documents from starting of treatment to final treatment have not been filed by the complainant for proper adjudication of this case.
10) It is case of OP that treatment rendered by OP No. 2 and OP No. 4 as per standard guidelines laid down by the text books and other documents and as per parameters of making operation by doctor. Accordingly, it is reproduced by the OPs that they have discharged their duties as per law and complainant went to Sankar Netralaya as per his own accord. And OP No. 2 & 4 did not perform any act prejudicial to the interest of the patient. All steps have been taken by the OPs as per parameters of treatment. Accordingly, the baseless allegation should not be accepted and the case should be dismissed.
11) The complainant filed documents : i) One receipt by OP No. 1 ( EMLC), ii) Referral letter dated 13.10.2009 to Alokon, iii) Treatment sheet of Alokon and discharge certificate of Alokon dated 7.11.09, iv) Money receipt of Alokon, v) Discharge summary of Sankar Netralaya.
12) The OP No. 2 filed following documents : i) Copy of prescription printed from database, ii) Form 3C daily case register, iii) Pre-Operative Work Up, iv) Copy of Instructions before Operation, v) Copy of Pre-Operative Work Up for the patients, vi) Medicine List to be arranged for the operation, vii) Informed consent for the eye operation, viii) List of the operations scheduled for the 06.11.2009, ix) Copy of discharge document of 06.11.2009, x) Copy of referral letter sent to Dr. Abhrajit Chatterjee, xi) Letter head of Dr. Arup Kumar Bose, xii) Registration Certificate of West Bengal Medical Council, xiii) Copy of Master of Surgery Ophthalmology Certificate, xiv) Copy of Diplomate of National Board (Ophthalmology) certificate, xv) Copy of Diploma in Opthalmology Certificate, xvi) Copy of Fellow of American College of Surgeons Certificate, xvii) Copy of Registration of Eye Microsurgery and Laser Centre under the WB Clinical Establishment Act 1950, xviii) Admission Form, xix) Letter of Dr. Arup Kr. Bose dated 30.09.2014 to Dr. Pinaki Nag, xx) Opinion of Dr. Pinaki Nag dated 25.10.2014.
POINTS FOR DECISIONS
- Whether the complainant was treated by OPs?
- Whether there was negligence in performing duty/duties by the OPs?
- If the plaintiff has succeeded to prove his case?
- If the plaintiff is entitled to get any relief/reliefs?
DECISIONS WITH REASONS
All the points are taken together for brevity and convenience of discussion.
13) Complainant in his evidence in affidavit stated that complainant went to the chamber of Dr. Arup Kumar Bose who examined his left eye on 06.11.2009 and advised for admission for urgent operation for replacing cataract. The complainant stated without any pathological examination like blood examination, sugar report without determining as to whether he had ‘astigmatism’ in the left eye. The complainant also stated that he got admission on that date i.e. on 06.11.2009 at 8 a.m. and Doctor without medical checkup report made operation on left eye. He was discharged against his will on the same day at 4 p.m. from the said EMLC without giving him all the treatment sheet as enclosed with the BHT. No advice was given during his discharge regarding post operation care of the operated eye. He has also stated that prior his operation no test of his pupils was done. No muscle test was caused. No use of tonometre to test for glaucoma applied to check and to find out detached retina or damage to blood vessels whether caused by hypertension or diabetes. But the complainant has stated in Para 8 that paramedical attendants handed over a discharge certificate to him by which he was referred to Dr. Abhrajit Chatterjee for further treatment. The complainant paid a lump sum amount to OPs on 06.11.2009. In Para 10 he stated he rented a car and went to Alokon at Lake Town. Wherein he was examined by Dr. Abhrajit Chatterjee on 06.11.2009 at 7 p.m. and he was admitted therein. Complainant stated that as per his request he was treated by Dr. Abhrajit Chatterjee at 8.30 p.m. and he again made operation on left eye on 06.11.2009. On 07.11.2009 complainant was discharged from OP No. 4. Dr. Abharajit Chatterjee advised him for following treatment to get back his vision on left eye gradually. Herein also the complainant paid a lump sum amount of fees of doctor and other charges. As per statement of this complainant he was under treatment of Dr. Abhrajit Chatterjee for a long time. And thereafter, on 19.11.2009 he took admission at Sankar Netralaya wherein he was treated by Dr. Chetan Rao. He was discharged on 24.12.2009 with a case summary.
14) This complainant has no allegation against the treatment at Sankar Netralaya. But raised allegation on the treatment imparted by OP No. 1 & OP No. 2. Particularly, mentioned in his evidence in chief (Para 11) regarding the wrong method of cataract operation and techniques involved in the operation. Accordingly, after losing the complete vision of his left eye forever and after becoming sure for wrong treatment he became blind and for which he has filed this case against OP No. 1 , 2 & 4. Last part of the evidence in chief is stated he is under treatment of Dr. Chetan Rao of Sankar Netralaya to save his right eye.
15) The OP No. 2, Dr. Arup Kumar Bose has filed evidence in chief opposing the statement of complainant. Dr. Arup Bose stated on oath that patient came with dimness of vision in left eye on 13.10.09 at 1.15 p.m. A detailed examination of the eye was done and necessary examination was given to the patient. The patient had already got his cataract of the right eye operated elsewhere and so, with a specific desire to get his other eye’s cataract to be operated by him on 13.10.09. Basic investigation as per surgical parameters was done. The patient brought ECG and blood sugar. After completion of stepping before operation pre-operative antibiotic eye drops was given 3 days prior to surgery and the date of operation was fixed on 06.11.2009 and complainant came on 06.11.2009 at 8 p.m.
16) It is stated by the OP No. 2 that all the essential tests including biometric test OPD has been done on 13.10.2009. Pre-operative workup was done which have been shown in the prescription before operation. Preoperative instruction sheet would show that what step was taken by the OP No. 2 before operation. A list of medicines was also given. All detailed pre cataract investigation like Keratometry, A-Scan biometry, patency test, specular microscopy, blood pressure checkup were done on the left eye of the complainant against payment of Rs. 370/- on 13.10.2009 and Rs. 150/- was taken as consultation fee and such payment was shown in 3C Form. All the essentials before operation were done.
17) On 06.11.2009 the operation was done. The complainant was discharged late after discharge of all other patients operated on 06.11.2009 because this Doctor OP No. 2 was an anterior segment surgeon while operating the cataract by Phacoemulsification knew his limitation as a surgeon and during operation he found that posterior capsule was dehiscent and the nucleus had dropped posteriorly and needed to be dealt with by a Vitreo Retinal Surgeon. He contacted with the verbal consent of the patient Dr. Abhrajit Chatterjee, Vitreo Retinal Surgeon who was available for consultation on the same day only from 5 p.m. Accordingly, discharge certificate along with referral letter to be submitted to Dr. Abhrajit Chatterjee at Alokon along with copy of instruction to be followed after phacoemulsification was handed over to the patient. The referral doctor was also communicated over phone regarding the time and details of the patient. This doctor took himself all such care and he himself wrote the name, address and mobile no. of the said doctor, namely Dr. Abhrajit Chatterjee of Alokon. This doctor stated he also communicated the incident with the referral doctor. The OP No. 2 also stated that during operation immediately after hydro dissection the doctor found that there was sudden deepening of the anterior chamber and the nucleus dropped into the vitreous cavity deep down over the retina and so anterior vitrectomy was performed. Anterior Chamber reconstructed and injection Aurocort was used to check any residual stand of vitreous in AC. The wound was closed with 10/0 monofilament suture. But as there was no lens implantation no cost was taken. The cost of the vitrectomy itself was Rs. 6,600/- and that was supplied free to the patient. Doctor also stated in Para 21 that there is no question of sucking of the cataract thorough a hollow needle in Phaco Surgery as done by this doctor, the latest ultra sound hand piece is used where ultra sound is used to break the nucleus and aspirated (Cyro) causes more chance of vitreous loss followed by retinal detachment. In this way the doctor stated as he found that complete operation would not have been done by him he referred the patient to the proper doctor Dr. Abhrajit Chatterjee at Alokon who is an Vitreo Retinal Surgeon.
18) After that the complainant went to the vitreo retinal surgeon who at once admitted him and operation was done as per need of the patient and he was discharged on 07.11.2009.
19) OPW 4 Dr. Abhrajit Chatterjee adduced evidence in chief. He stated that after consulting with Dr. Arup Bose this doctor admitted the patient in his treating institution and Dr. Bose discussed the matter with this witness over telephone. This witness operated in the same evening and the patient was discharged on 07.11.2009 with proper advice and prescription and the patient was strictly advised in writing to come after seven days or SOS. But the patient after discharge on 07.11.2009 did not come to this doctor any time else and instead as per record he attended Sankar Netralaya on 19.11.2009. The doctor also stated that the patient was first examined in Sankar Netralaya on 19.11.2009. The doctor has gone through the discharge summary of Sankar Netralaya that he was given a course of oral steroid and thus treated conservatively which is suggestive that on that date there was no necessity of any emergency operation. The operation was done on 28.11.2009 which again shows that there was no urgency of operation.
20) This case has been instituted by the complainant on the allegation of negligence and deficiency of service on the part of the OP No. 1 to 4 who treated the patient on ground that he was not cured for which he went to Sankar Netralaya and was treated there. But it appears in the record as well as evidence that OPW 2 complied all the requirements regarding preoperative operation. The document filed by the OPW 2 shows all the requirements as complied with before operation for which Rs. 370/- was paid and at the time of operation the doctor found that unforeseen situation which cannot be completed by the OPW 2. So he referred the patient to OPW 3 for proper compliance and OPW 4 getting the patient and after consultation with OP No. 2 applied all possible measures regarding operation and with a direction upon the patient to come on a fixed date. The discharge summary of OPW 1 & OPW 3 also shows that preoperative measure and postoperative measure have been clearly laid down in the discharge certificate.
21) The referral letter of Dr. Bose addressed to Dr. Abhrajit Chatterjee dated 06.11.2009 clearly shows the history of the patient regarding pre and post operation in their medical term along with operative note and signed by Dr. Arup Kumar Bose. This referral letter shows as soon as Dr. Arup Bose found the odd situation which cannot be cured by him he decided to send the patient to the OPW 4 and he did the same. And OPW 4 after getting the patient complied all the requirements and necessary operation was done and released the patient on 07.11.2009 with prescription for using medicines and again review after seven days. But as per record and as per statement of OPW 4 the complainant did not meet with OP W No. 4. He went to the Sankar Netralaya. The OPW 3 submitted register of admission which is an unison with the statement of OPW 3.
22) The OP has filed some documents. OP has filed preoperative workup as prelist of the document dated 10.11.2017. For the first time OP has measured the general parameters of the object and diagnosis was pseudophakia OD, as advised IMSC OS, Vitreous Floaters WWOT OS. Form 3C shows in Sl. No. 24 he was in this state after payment of fees for checking by the OPs. This was done on 13.10.2009. This Form 3C also shows the complainant paid Rs. 370/- for three operative checkup. Pre operative workup was done on 13.10.09 filling the forms as per requisite therein. This record preoperative workup shows right eye was operated elsewhere, blood sugar was 98, blood pressure was 140/80, IOP was 21, right eye 17, visuality 20/50, 20/33, left eye 20/200. 20/40 which is self-explanatory. Inform consent later has been signed by the complainant on 06.11.90 at 8 a.m. as usual, keep formality. The daily operation sheet has been filed which shows on that date operation was done on the complainant along with other patient. Referral letter shows the history of the operation and cause of reference to the Dr. Abhrajit Chatterjee. He has written on examination the anterior segment of both eyes did not reveal any gross abnormality. The right eye showed IOL in place. There was advance nuclear grade 4 cataract in the left eye. The fungus was properly visible but appeared to be normal with vietereous flotus and evidence suggestive of PVD. Patient is on broad spectrum antibiotic eye drop 4 times daily along with other medicines. During hydro dissection there is sudden deepening of anterior chamber and the whole of the nucleus dropped into vitreous deep down over the retina. The doctor has also written in referral letter that the wound is closed with 10 monofilament used to check any residual stand of vitreos in AC. Accordingly, doctor sent the patient to Dr. Abhrajit Chatterjee for implantation of the lens because the whole of the nucleus dropped into the vitreous deep down over the retina.
23) After receiving the patient the referral doctor Dr. Abhrajit Chatterjee got him admitted in the Alokon as per referral letter. The doctor OPW 2 in his oral evidence also stated that finding complications of the patient he referred the patient to Vireo Retinal Surgeon because OP No. 2 is a cataract surgeon. He is not a vitreo retinal surgeon. Accordingly, informing all the incident he referred the patient to Vitreo Retinal Surgeon vide para 15 of the evidence in chief.
24) After receiving the patient the doctor in the Alokon that is OP No. 3 got the patient admitted on 06.11.2009 at 7.00 p.m. Operation was done at 8.30 p.m. on the same night. And patient was discharged on 07.11.2009 with diagnosis ‘left eye dropped nucleus’. Nucleus Removal (LPFC) + CRP + AC IOL done ULA.
And released the patient with some advice with a direction for review after 7 days. But after that patient did not come to Alokon. In evidence OPW 3 on oath stated this fact of operation and receiving the patient and understanding the urgency and as per consultation with Dr. Arup Kumar Bose patient was admitted for operation and released after treatment.
25) In the written notes of argument OPW 4 has written that during phaco surgery the procedure is i) Capsulorhexis i.e. removal of a round circular portion of a anterior capsule of the lens. Ii) Hydro dissection (separation of nucleus from the capsule bag), iii) Phaco emulsification and removal of the nucleus (i.e. the hardest portion of the lens), iv) Removal of cortex (white soft portion of the lens), v) Implantation of IOL. This doctor also advanced argument that in this case a lens fragment was dropped in the vitreous cavity which is the known complication of phaco surgery that is the latest technique of removal of cataract.
26) The management of retained lens fragment in vitreous cavity is vitrectomy + removal of the lens fragment with LPFC (Per Fluoro Carbon Liquid) + ACIOL implantation which is done by Vitreo Retinal Surgeon and that was exactly done by this doctor that is OPW 3. In this para the OP No. 3 has mentioned some text books of Myron Yanoff & Jay S Duker. Accordingly it is strongly argumented that treatment done by the Dr. Abhrajit Chatterjee was strictly in conformity to the medical norms and procedure and he was quite competent to do that surgery but he was not gain any chance to complete the treatment because he did not meet with this surgeon for review on dated fixed by OPW 3.
27) From the above evidence on record which has been reproduced hereinbefore along with document establishes fact that the complainant went to OP No. 2 doctor for treatment of his left eye who have already operated his right eye. The doctor OP No. 2 instructed him for making some surgical test as per surgical parameters i.e. measurement of sugar, pressure, pressure of eye and others related checkup which was done by the OP No. 2 taking fees of Rs. 370/- as per Form 3C on 13.10.2009. Later on 06.11.2009 was fixed for operation. The complainant came to the OP No. 1. He was admitted. Operation was done on complainant along with other patient. In course of operation OPW 2 found some difficulties which have been quoted in the evidence of OP No. 2 and OP No. 3 that is ‘nucleus dropped’. Then OP No. 2 referred the patient at once to vitreo retinal surgeon OP No. 3 then completed of the rest job by placing the lens and discharged the patient on 07.11.09. When OP No. 2 found dropping of nucleus he at once stopped the operation and made bandaged and consulted OP No. 4 and thereby sent the patient to OP No. 3. Before operation all essentials checkup was done. So, the contentions of the complainant that he went to the OP No. 2 on 06.11.2009 and on that date operation was done which was unsuccessful . This allegation cannot be accepted as it is not reasoned and not based upon the actual fact. The complainant suppressed the actual fact because he went to OP No. 2 on 13.10.2009 and preoperational checkup was done. And later on he again came on 06.11.2009 when operation was done but OP No. 2 failed as he was not vitreo retinal surgeon. OP No. 2 was phacoemulsification surgeon. So it is not expected the performance of a vitreo retinal surgeon from a phacoemulsificatin surgeon because the two operations are different and is being done by different specialised doctor.
28) In this case when OPW 2 doctor Bose found difficulties he sent the patient to OP No. 3 Dr. Abhrajit Chatterjee. So, there is no laches on the part of the OPW 2 with his best attempt he was not capable of performing the job which is to be done by OP No. 4 a vitreo retinal surgeon and such act is not expected from OP No. 2. OP No. 2 left no stone unturned to cure the complainant. But he was not specialized in that operation. So, allegation of the complainant is a baseless one. Rather complainant did not visit with OP No. 2 for review wherein he has been treated later on with a discharge summary. The discharge summary does not show anything which can attributed negligence on the part of OP No. 2 and OP No. 4.
29) We have gone from the genesis of this case till the discharge summary of Sankar Netralaya. We have been scrutinised every step of treatment by our limited knowledge. We have examined the procedure of operation as argumented by the OP No. 2 and 3 who are doctors. Not only that they have filed one opinion of an eye surgeon dated 25.10.2014 that specialist has written certificate which runs follows :
“On perusal of the entire documents relating the treatment of Mr. Siba Prasad Mukherjee as rendered by Dr. Arup Kumar Bose I find that before the phacosurgery for removal of the cataract in the left eye of the said patient all preoperative investigations were properly done and Dr. Bose adopted a technique of phacoemulsification with implantation of foldable posterior chamber IOL in the left eye of the patient. That technique of surgery as adopted by the Dr. Bose is the standard technique of cataract removal as recognized worldwide in the present days. During such surgery the complication of PC rent and nucleus drop in the vitreous cavity is well recognized and cannot be anticipated before operation. If during the phacosurgery such complication develops, then the measures to be taken on the operation table are Anterior Vitrectomy, AC reconstruction and suturing of the wound before referring the patient to a Vitreo-Retinal Surgeon and I find Dr. Arup Kumar Bose had done exactly the same and thus I am of opinion that Dr. Bose treated the patient strictly in conformity to the medical norms and procedure as per international recognized standard procedure in an unpredictable situation like this. This complication as developed in this surgery should be managed by the vitreo retinal surgeon and thus Dr. Bose has appropriately referred the patient to vitreo retinal surgeon. I am of specific opinion that there was no negligence or deficiency on the part of the Dr. Arup Kumar Bose in the treatment of the patient’.
30) It is pertinent to mention here that complainant did not take any step with the help of an expert opinion who are specialized in such kind of operation as described hereinbefore.
31) So, after swimming over the vast record and statement and counter statement evidence and counter evidence argument counter argument and different text references as given by OPW 4 in the last part of his argument, and paying attention on the evidence on oath v. oath of both sides and considering the material before us, behavior of the complainant and Doctors, we are of strong conviction that complainant fails to establish his case of deficiency in service of OPs. As such the case is unable to stand on leg, thus the case fails.
Accordingly,
IT IS ORDAINED
That the CC Case No. 82/2011 be and the same is dismissed on contest without any cost.
Let a copy of this order be supplied free of cost to the parties at once.
