Delhi

North East

CC/512/2014

Tuliram - Complainant(s)

Versus

Nav Drishti Eye Centre - Opp.Party(s)

05 Nov 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 512/14

 

In the matter of:

	Shri Tuliram S/o Shri Deshraj R/o- B-516, Gali no. - 16 Gagan Vihar, Block-AB Near Rasgula Wali Gali Bhopara, Distt-Ghaziabad,U.P.-201001	Complainant
	Versus
1.         2.	Nav Drishti Eye Centre B-5/351, Yamuna Vihar, Near B5 Market Opp. Maharaja Agaresen Park Yamuna Vihar, Delhi-110005   United India Insurance Company Ltd. 42-C, 3rd Floor, Moolchand Commercial Complex New Delhi-110024	Opposite Parties

 

DATE OF INSTITUTION:     JUDGMENT RESERVED ON:               DATE OF DECISION :

22.12.2014 05.11.2019 05.11.2019

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Facts germane giving rise to the present complaint as culled out are that the complainant earned his livelihood as a driver and due to poor and diminishing vision in his right eye, had approached OP       Dr. Seema Sharma on 28.10.2013 at her Nav Drishti Eye Centre for eye check up where he was told by OP that he was suffering from cataract in his right eye and his eyesight power has become 6.9 for which it needs to operated upon OP called the complainant to undergo surgery on 31.10.2013 with assurance that it is a lifetime solution and asked complainant to deposit Rs. 12,000/- for surgery and Rs. 3,000/- towards medicine. The complainant deposited the said sum with OP and thereafter the OP operated upon the complainant for cataract for his right eye on 31.10.2013. However after the surgery, the vision of the complainant in the said eye deteriorated and was causing pain for which he showed his eye to OP on 06.11.2013, 24.11.2013 and 30.12.2013 and lastly on 08.10.2014 when on every visit and check up, complainant reported about his difficulty to OP but OP kept negating it by saying that his eye was all right and on each visit charged Rs. 1000/- from the complainant. In such a way, the OP has taken Rs. 30,000/- in total from complainant in one year. Complainant has submitted that on 09.10.2014 when OP checked his eye at her other clinic Sai Retina Foundation located at Dilshad Garden, Delhi and told him that there was a hole in the retina of his right eye which had to be          re-operated upon and would incur expenditure of Rs. 1,50,000/-, the complainant was shocked  and for second opinion, showed his eye at Centre for Sight on 29.10.2014 where he was told that there was a hole in the retina of his eye due to wrong operation. Therefore alleging medical negligence leading to loss of employment as driver due to poor eye sight and unfair trade practice on the part of OP, the complainant was constrained to file the present complaint against the OP praying for issuance of directions to give proper treatment to the complainant for correction of his eye retina alongwith compensation of Rs.5,00,000/- for loss of employment, Rs. 50,000/- as compensation for mental and physical harassment and Rs. 11,000/- towards litigation charges.
2. Complainant has attached copy of prescription dated 28.10.2013 issued by OP advising complainant to undergo cataract surgery and visit follow ups and medication prescribed on 31.10.2013, 06.11.2013 and 30.12.2013, copy of blank prescription dated 08.10.2013 , copy of retina report of complainant dated 09.10.2014 taken at Sai Retina Foundation, taken alongwith diagnosis sheets of right eye macular hole with referral to AIIMS, copy of report dated 29.10.2014 by Dr. Aashraya Karpe from Centre for Sight with diagnosis of Full Thickness Macular Hole (FTMH) in right eye with advice of Optical Coherence Tomography (OCT) and copy of an old prescription dated 08.08.2012 issued by Vasan Eye Care diagnosing Duetro-Protoanomaly (congenital color vision defect) in complainant’s both eyes with advice of conservation management for that period.
3. Notice was issued to the OP on 06.01.2015. OP entered appearance and filed its written statement in which it took the preliminary objection that there is no negligence or deficiency on the part of OP in rendering his service to the complainant and treatment of complainant was done with best due care. OP submitted that the complainant had approached her on 28.10.2013 with complaint of distant vision in his right eye and after complete objective evaluation and clinical findings, he was advised cataract surgery. OP submitted that his retina was normal in right eye before surgery and cataract surgery was done on 31.10.2013 after taking his consent and with due care. Thereafter complainant was called for follow ups and routine check up on 01.11.2013, 07.11.2013, 24.11.2013 and 30.12.2014 to check the post-operated eye and the same was found OK and only multivitamins to give him. OP resisted the complaint submitting that it was only after one year of surgery i.e. in November 2014, when complainant came to her clinic with complaint of partial loss of vision in the operated eye and on examination conducted at Sai Retina Foundation by OP where she was working as Cataract Surgeon, that the complainant was diagnosed with idiopathic macular hole in his right retina and this new development was unrelated to the cataract surgery perform a year ago. The OP referred the complainant to AIIMS for further management and submitted that post surgery, there was no problem detected in the right eye of the complainant. OP denied the averment of the complainant of Centre for Sight having given an adverse report against OP. Lastly, OP contented that in view of the new diagnosis of macular hole having occurred after one year of cataract surgery and unrelated to the same, no deficiency of service could be made out against the OP and therefore prayed for the dismissal of the complaint.
4. OP has attached copy of covering letter dated 09.05.2014 issued by Apex Insurance Consultant Ltd. for professional indemnity policy of Rs. 5,00,000/- covering the complainant for the period January 2013 to January 2016.
5. Rejoinder was filed by the complainant in rebuttal defence taken by the OP in which complainant alleged improper surgery done of his right eye by OP due to which he had to take second opinion from Centre for Sight which diagnosed Macular hole in his right eye retina and thereafter report by AIIMS hospital also confirming the same, thereby complainant alleging medical negligence against the OP and praying for relief claim and appropriate action against her.
6. Complainant filed evidence by way of affidavit vide which he exhibited the medical documents pertaining to cataract surgery performed by OP hospital and follow ups report alongwith diagnosis of macular hole made by Centre for Sight on 29.10.2014 and AIIMS OPD dated 15.01.2015.
7. OP filed evidence by way of affidavit in reassertion of her defence and exhibited copy of Consent Form 31.10.2013 signed by complainant and herself against respective heads for undertaking cataract surgery alongwith medical literature with respect to macular hole and copy of Professional Indemnity Policy issued by United India Insurance Co. Ltd. covering her w.e.f. 11.01.2013 to 10.01.2014 alongwith her qualification degrees of MS Ophthalmology and certificate of registration with DMC.
8. On the application filed by the OP for arraying United India Insurance Company India Ltd. as necessary party to the complaint the same was allowed as per settled law passed by Hon'ble NCDRC in Dr. C.C. Choubal Vs Pankaj Srivastava case and notice was issued to the said insurance company as OP2 which entered appearance and filed its written statement in which, while admitting the factum of insurance coverage granted to OP1 (Doctor) vide policy bearing no. 041200/46/12/35/00000708 for an extent of Rs. 5,00,000/- for one accident only in respect of treatment offered to her patients,  it took the preliminary objection that the complainant has failed to disclose material facts and has concealed the same. The OP2 submitted that the complaint was frivolous as having been filed without any expert opinion and disputed its arraignment as necessary party to the complaint as the main claim of complainant was against OP1 and in case any medical negligence made out against her in the present complaint, she would file a complaint and claim the amount. Thereafter OP2 adopted the defence taken by OP1 of no negligence on OP1’s part in performing cataract surgery in right eye of complainant on 31.10.2013 and the subsequent problem of macular hole having occurred one year thereafter with no connection to the prior surgery which also stood confirmed as per reports of Centre for Sight and AIIMS. The OP2 therefore prayed for dismissal of complaint on merits. OP2 filed the original certificate of insurance alongwith booklet of profession indemnity policy terms and conditions. The complainant by way of an additional affidavit submitted that after much persuasion by him on OP1, OP1 had conducted examination of his right eye at her clinic in Sai Retina on 09.10.2014 informing him about the hole in his retina for which he had to be operated upon on total expense of Rs. 1,50,000/- forcing the complainant to take a second opinion in sheer disbelief and the problem in his right eye was diagnosed by Centre for Sight and AIIMS as macular hole.
9. Evidence by way of affidavit was filed by OP2 in reiteration of his defence taken in written statement.
10. Written arguments were filed by all parties in reaffirmation of their respective grievance / defence. For clarity on the issue in hand, the complete file with medical record referred for medical opinion to GTB Hospital , Shahdara and vide medical expert opinion report dated 28.03.2019 duly signed by the Director, Professor and Head of Department of Ophthalmology, the Board opined that post visual acuity in the operated eye of complainant was 6/12 as noted in the records of OPD card of AIIMS dated 15.01.2015 i.e after more than one year of surgery and the same is reasonably good vision following cataract surgery. The complainant was diagnosed with macular hole in the same eye after one of surgery and on OCT done at AIIMS, the same showed a self sealing macular hole for which no surgery was advised. The said Board concluded that there was no direct relationship between uncomplicated cataract surgery and development of macular hole.
11. The complainant filed his comments on the said report expressing full satisfaction to the opinion of the said Board. However he submitted that the surgery was not required and the hole in the retina was not properly assessed by the said Board.
12. We have heard the rival contentions of both parties and have given our anxious consideration to the pleadings and documents before us. The rival submission now fall for consideration, the essential aspect of which is the charge and negation of the charge of medical negligence. The question as to how and by which principle, the court should decide the issue of negligence of a professional doctor and hold him liable for his medical acts /advice given by him/her to his patient which caused him/her some monetary loss, mental and physical harassment, injury and suffering on account of doctor’s medical advice/treatment (oral or operation) is no longer res integra and settled long back by the series of English decisions as well as decisions of Hon'ble Supreme Court. The classic exposition of law on this subject is first laid down in a decision of Queens Bench in the leading case of Bolam Vs. Friern Hospital Management Committee [1957] 1 WLR 582 in which Mc. Nair J. explained the law as:  “where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill… It is well established law that it is sufficient if the exercise the ordinary skill of an ordinary competent man exercising that particular art.” The said law laid down in Bolam’s case is consistently followed by courts world wide as being correct principle of law known as Bolam Test.  A careful reading of Bolam case shows that the standard of ‘reasonableness’ is implicit in the test. There may be one or more perfectly proper standards; and if he conforms with one of those proper standards, then he is not negligent”. The aforesaid principle has been reiterated and explained by Bingham L.J. in his speech in Eckersley Vs. Binnie (1998) 18 Con LR 1 “Professional Man should have such an awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitation on his skill. He must bring to any professional task he undertakes no less expertise, skill and care then other ordinarily competent members of his profession would bring, but need bring no more. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet”. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. Deviation from normal practices is not necessarily evidence of negligence. To establish liability on that basis it must be shown, (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care. A doctor has a legal duty to take care of his patient. Whenever a patient visits a doctor for treatment there is a contract by implication that the doctor will take reasonable care to treat him. If there is a breach of that duty and if it results in injury or damage, the doctor will be held liable. The doctor must exercise a reasonable degree of care and skill in his treatment; but at the same time he does not and cannot guarantee cure. (cf. Halsbury’s Laws of England 3^rd Edn. Vol.26 Pg.17).” The Hon'ble Supreme Court in its Three Judge Bench judgment in the case of Jacob Mathew Vs. State of Punjab III (2005) CPJ 9 SC examined the law laid down in Bolam test and held that a surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial. The only assurance which such a professional can give or impliedly be given is that he is possessed of requisite skill in that branch of profession practiced by him while undertaking the performance of task entrusted to exercise his skill with reasonable competence and this is what the person approaching him can expect. The Hon'ble Supreme Court further observed in the Jacob Mathew judgment that different doctors have different approaches, some have more radical while some have more conservative approaches. All doctors cannot be fitted in to a strait-jacketed formula, and cannot be penalized for departing from that formula. Hon'ble Lordships further observed that simply because a patient has not favorably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straight away liable for medical negligence by applying the doctrine of Res Ipsa Loquitur. Hon'ble Supreme Court in Martin F. D’Souza Vs Mohd Ishfaq  (2009) CPJ 32 (SC) held on lines of Lord Denning’s important observation in Hucks Vs Cole (1968) 118 New L J 469 that “a medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of other. A medical practitioner would be held liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field”. In Derr V. Bonnev,231 p 2d 637, Wash. 1951, the Court’s definition of negligent treatment is an excellent statement of the general definition of a physician’s legal responsibility in treatment:

1. Before a physician or surgeon can be liable for malpractice, he must have done something in the treatment of his patient which the recognized standard of medical practice in his community forbids in such cases or he must have neglected to do something required by these standards.
2. In order to obtain a judgment against a physician or surgeon, the standard of medical practice in the community must be shown and further, that the doctor failed to follow the method prescribed by that standard.
3. It is not required that physicians and surgeons guarantee results, nor that the result be what is desired.
4. The testimony of other physicians that they would have followed a different course of treatment than that followed by the defendant or a disagreement of doctors of equal skill and learning as to what the treatment should have been, does not establish negligence.

In the landmark judgment of Kusum Sharma and Ors. Vs Batra Hospital and Medical Research Centre and Ors. I (2010) CPJ 29 (SC), the Hon'ble Supreme Court, while deciding whether the medical professional is guilty of medical negligence held that following well known principles must be kept in view interalia:

(ii) negligence in an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not negligence merely based upon error of judgment

(iv) a medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

(v) in the realm of diagnosis and treatment there is a scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor

(vii) negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.

The Hon'ble National Commission has been consistently following the settled law as aforementioned in landmark judgment passed by it on the topic of “medical negligence” viz Dinesh Kaushal & Ors. Vs Dr. K.K. Khurana III (2002) CPJ 297 (NC), Mam Chand Vs. Dr. G.S. Mangat of Mangat Hospital I (2004) CPJ 79 (NC) and Deepak Kumar Satsangi (Dr.) Vs Sanjeevan Medical Research Centre Pvt Ltd. III (2016) CPJ 96 (NC).

To succinctly bring the rival contention in to focus after having exhaustively dealt with the law on medical negligence, it may be stated in brief that the complainant is alleging medical negligence on the part of OP1 in conducting cataract surgery which led to hole in the retina after one year thereof as diagnosed by OP1 herself and also by Centre for Sight and AIIMS. The OP1 has vehemently denied the allegation on ground of having conducted the said surgery with utmost care and as per standard procedure. In Bolitho Vs City and Hackney Health Authority (1996) 4 ALL ER 771, House of Lords held that the course adopted by medical practitioner must stand a test to reason “the court is not bound to hold that a defendant doctor escapes liability for negligence just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant’s treatment or diagnosis accorded with sound medical practice. The court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. Hon'ble Justice S. B. Sinha in Malay Kumar Ganguly Vs Dr. Sukumar Mukherjee III (2009) CPJ 17 (SC) has preferred Bolitho test to Bolam test and redefined medical negligence saying that the quality of care to be expected of a medical establishment should be in tune with and directly proportional to its reputation. The decisions also says that the court should take into account patient’s legitimate expectation from the hospital or the concerned specialist doctor of due care from point of admission to his discharge and review of his condition thereafter. In P.B. Desai Vs State of Maharashtra (2013) 15 SCC 481, the ‘Duty of Care’ which a doctor owes towards his patient has been clearly explained by Hon'ble Supreme Court as follows: “once It is found that there is ‘duty to treat’ there would be a corresponding ‘duty to take care’ upon the doctor qua his patient of ethical / legal character arising in a contractual relationship. Ethical ‘duty to treat’ on the part of doctor is clearly covered by Code of Medical Ethics 1972, Clause 10 of which captions Patient must not be neglected.” Therefore the Hon'ble Supreme Court implied by the said judgment that duty of care of treating doctor did not end with surgery but post operative care as well.

To get most utmost clarity on the medical issue involved in the present case, the complete case file was referred for medical opinion to Ophthalmology Department of GTB Hospital.  The Board of the said hospital comprising Professor and two Directors Professors of the said department, vide report dated 28.03.2019 opined as under:

The patient Mr. Tuli Ram was operated for cataract surgery with PCIOL on 31.10.2013. Patient was prescribed glasses on 24.11.2013, with refractive correction of -0.25 sp/-0.25 cy at 10⁰ for distance and addition of +2.50Ds for near in the right eye. As per the available records it is not possible to give a comment on the post operative status including any post-operative complications. However, the visual acuity in the operated eye was 6/12 as per the records of DR RP centre AIIMS, vide OPD number 20150050004958 dated 15.01.2015 (more than one year after surgery). This is a reasonably good vision following cataract surgery. He was diagnosed to have a macular hole in the same eye after one year of surgery. An OCT done at Dr.  RP Centre AIIMS showed a self-sealing macular hole in the same eye, for which no surgery was advised as per the records and the patient was advised for follow up after one month. Macular hole can occur at any age and has many causes. There is no direct relationship between uncomplicated cataract surgery and development of macular hole. It is difficult to opine the cause of macular hole in this patient.

In Maynard Vs West Midlands Regional Health Authority [1985] 1 All ER 635, Lord Scarman held: “A case which is based on an allegation that a fully considered decision of two consultants in the field of their special skill was negligent clearly presents certain difficulties of proof. It is not enough to show that there is a body of competent professional opinion which considers that there was a wrong decision, if there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances.”  

At this juncture let us examine what is a Macular Hole. As per the medical literature filed by OP1, it is a full thickness defect of retinal tissue and FTMH (as diagnosed in the case of complainant) is around break that involves all the layers of the retina, from the internal limiting membrane through the outer segment of photoreceptor layer and most Macular Hole are idiopathic and cost by pathological myopia as one of the key reasons (etiology) which is an important cause of loss of vision with largely unknown risk factors. OCT is useful in diagnosing and stage of macular hole and also measures the volume of its full thickness. Idiopathic is most common form of macular hole and high myopia is what macular hole is associated with. FTMH is also found in young patients without trauma history.

13.  Now we address ourselves as to whether there was any negligence on the part of treating doctor OP1 in conducting cataract surgery of the complainant’s right eye in October 2013 which allegedly caused FTMH in his right retina diagnosed in October 2014. On this key aspect for adjudication, we are guided by the pearls of wisdom of Hon'ble the then Chief Justice of Indian in Jacob Mathew’s case (supra) which read as under: 

“There is a marked tendency to look for a human actor to blame for an untoward event, a tendency that is closely linked with a desire to punish. Things have gone wrong and therefore somebody must be found to answer for it. For a medical accident or failure, the responsibility may lie with the medical practitioner, and equally it may not. The human body and its working is nothing less than a highly complex machine. Coupled with the complexities of medical science, the scope for misimpressions, misgivings and misplaced allegations against the doctor cannot be ruled out. One may have notions of best or ideal practice which are different from the reality of how medical practices carried on or how the doctor functions in real life. Dealing with a case of medical negligence needs a deeper understanding of practical side of medicine. The human body and medical science, both are too complex to be easily understood. To hold in favour of existence of negligence, associated with the action or inaction of a medical professional, requires an in-depth understanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability.’’

In the present case the complainant underwent cataract surgery of his right myopic eye on 31.10.2013 conducted by OP1. As per the medical prescription and post operative of follow check up history placed on record there are eye drops and antibiotics prescribed by OP1 on the said follow up dates and no complaint of pain or poor vision or any post operative complication is mentioned therein. This brings ourselves to address as to whether the complainant was properly monitored post operation and also if “Duty of Care” was followed by OP1 as per medical jurisprudence. Our observation in this context is in the affirmative and in favour of OP1. The FTMH / Macular Hole is diagnosed in complainant right eye after one year of cataract surgery and as per the medical literature, can be attributed to other co-morbid reason like high myopia and congenital Duetro-protoanomaly (color blindness) in both eyes (pre-existing and diagnosed by Vasan Eye Care in 2012), which the complainant was suffering from. We are guided by the medical opinion in this regard as well which even the complainant in his objections / comments with respect thereof has expressed his full agreement and no objection. The medical opinion very clearly opines that the complainant had reasonably good vision post cataract surgery and a self-sealing macular hole diagnosed one year thereafter through OCT done by AIIMS in the same eye had no direct relationship with the uncomplicated cataract surgery conducted by OP1. No where in either of the two reports of Centre for Sight or AIIMS has any negligence being attributed to cataract surgery performed by OP1 or it being the cause of macular hole in the retina of the so operated eye of the complainant. We are further guided on aspect of conclusiveness of medical opinion by the settled law passed by Hon'ble Supreme Court in Smt. Vinitha Ashok Vs. Laxmi Hospital I (2002) CPJ 4 (SC) in which the Hon'ble Supreme Court held that a doctor will not be guilty of negligence if he had acted in accordance with practice accepted as proper by a responsible body of Medical Men skilled in thatparticular Art and if he has acted in accordance with such practice and merely anybody’s contrary allegation taking a contrary view will not make him liable for negligence. Martin D’Souza & Jacob Mathew judgments are also embodiments of the same proposition of law for taking medical opinion to avoid harassment to doctors or surgeons or hospital that may not be ultimately found negligent.

14. After having exhaustively dealt with the case in hand and the legal discourse discussed threadbare & settled proposition of law, we are of the opinion that no medical negligence can be attributed to OP1 in having conducted cataract surgery on the complainant in October 2013 leading to macular hole in October 2014 as not direct nexus between these two medical conditions has been established by the complainant onus of which was squarely lying on him to establish by way of cogent evidence. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia and the latter is completely lacking in the present complaint. The complainant has therefore being unable to prove any correlation between the two ailments and aftermath of one surgery on the subsequent medical condition that he was diagnosed with a year thereafter. We therefore do not find any merit in the present complaint and dismiss the same with no order as to cost.
15.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
16.   File be consigned to record room.
17.   Announced on  05.11.2019

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member