Chandigarh

DF-I

CC/543/2023

DR. PUPUL DUTTA PRASAD - Complainant(s)

Versus

POST GRADUATE INSTITUTE OF MEDICAL EDUCATION AND RESEARCH - Opp.Party(s)

01 Oct 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	543/2023
Date of Institution	:	21.11.2023
Date of Decision	:	01/10/2024

Dr. Pupul Dutta Prasad, IPS, IGP, South Range, Shimla, Himachal Pradesh S/o Sh. Prem Dutta Prasad R/o Set No. 17, Type V. Kasumpti, Shimla, Himachal Pradesh-171009

….Complainant. 

Versus

1.    Post Graduate Institute of Medical Education & Research, Sector-12, Chandigarh-160012 (through Director).

2.    Dr. Ramandeep Singh, Professor, Advanced Eye Centre, Post Graduate Institute of Medical Education & Research, Sector-12, Chandigarh-160012

…Opposite Parties

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

                                                                               

ARGUED BY	:	Ms.Ramneek Kaur, Advocate for complainant
	:	Sh.Anand Rohilla, Advocate for OPs.

Per Pawanjit Singh, President

1.        The present consumer complaint has been filed by complainant against the opposite parties (hereinafter referred to as the ‘OPs’).  The brief facts of the case are as under :-
   1. It transpires from the averments as projected in the consumer complaint that on 08.03.2023, the Complainant suddenly experienced floaters and blurred vision in his right eye hereinafter referred to as the ‘subject eye’) and on the very next day i.e. 09.03.2023, he consulted Dr.Salil Kumar Ali of Tenzin Eye Centre, Tenzin Hospital, Panthaghati, Shimla, who confirmed the sudden onset of floaters and blurred vision in the subject eye and referred the complainant to OP-2 for "Retina Expert Opinion". A copy of the Patient Registration Card dated 09.03.2023 including the "OCT VCam Reports" is Annexure A-1. In pursuant to the aforesaid referral made to OP-2, the Complainant approached the office of OP-2 through his department namely, PGI Cell on the same day i.e. on 09.03.2023 requesting an urgent appointment.  On the request of the complainant, the earliest date of appointment was offered to the complainant was the next day, i.e. 10.03.2023. Accordingly, the Complainant travelled from Shimla to Chandigarh and reached the Out Patient Department (OPD) facility of OP-2 at around 8:45 A.M. on 10.03.2023 and OP-2 assessed the medical condition of the Complainant by conducting dilated eye examination and fundus photography and had given  his findings qua the subject eye as "myopic vitreous degeneration + vitreous haemorrhage, 300° retinal degeneration 12 o'clock retinal haemorrhage/due to break". Resultantly, OP-2 prescribed "laser of the break and lattice area 300. A copy of the Out Patient Card dated 10.03.2023 is Annexure A-2. After conducting the detailed examination and prescribing the mentioned procedure, OP No.2 intimated the Complainant that said treatment only involves 15-20 minutes of laser photocoagulation as an OPD procedure, after which the Complainant would be able to leave the facility and resume his normal work. The complainant was also informed that he had 6/6 vision (with glasses) and there existed a risk of retinal detachment and loss of vision if the retinal tear was not treated with laser. The complainant, after understanding the risk involved, requested OP-2 to carry out the requisite treatment. However, after consulting the calendar, OP No.2, fixed the date and time of 13.03.2023 at 4:00 P.M. for the laser treatment. OP-2 further advised the complainant to be on "bed rest" till the date and time of laser treatment but refused to highlight the imminent threat and the risk in not having the laser done immediately. In fact, OP-2 without any reservations whatsoever permitted the complainant to work on the computer when he messaged OP No.2 on WhatsApp on 10.03.2023 (Annexure A-3) itself to seek a clarification about it.  It is further alleged that the aforesaid act on the part of OP No.2 amounts to failure, working under the aegis of OP No.1, which resulted to the complainant suffering retinal detachment and losing his natural vision. The laser photocoagulation ought to have been done on the day itself, which has not been done by OP No.2 who has failed to appreciate the gravity of the degree of vitreous haemorrhage/detachment and take remedial measures with immediate effect and the same amounts to gross medical negligence. The Complainant, trusting the medical advice of OP-2 completely, remained strictly on bed rest between 10.03.2023 and 13.03.2023, except for attending to some urgent official work on his computer as allowed by OP-2. At the same time, the Complainant also tried to get an early appointment with a vitreo-retinal expert at Dr.Rajendra Prasad Centre for Ophthalmic Sciences (RPC), All India Institute of Medical Sciences (AIIMS), New Delhi (hereinafter referred to as the ‘treating hospital’ where his previous retina check-ups were taken place. The complainant managed to get an appointment at Dr.Rohan Chawla's morning OPD at RPC, AIIMS, New Delhi for 15.03.2023 at 9:00 A.M. Since the time between the aforesaid appointment given by Dr.Rohan Chawla and appointment at OP-1 institution on 13.03.2023was roughly a day and a half, the Complainant considered it safe, in absence of any advice from OP-2 to the contrary, to wait till 15.03.2023 so that the treatment can be carried out at RPC, AIIMS, New Delhi and accordingly, he informed OP-2 of his decision via WhatsApp which was acknowledged by OP-2 and the relevant screenshot of the WhatsApp conversation dated 12.03.2023 is Annexure A-4. On the morning of 15.03.2023 when Dr.Chawla examined the subject eye of the complainant, he observed, to the utter shock and dismay of the complainant, that "inferior retinal detachment" in the subject eye had already taken place. Dr.Chawla described the situation as a critical one and  necessitating vitreo-retinal surgery failing which the subject eye would be irreversibly damaged. He also expressed his disappointment at the fact that although a retinal break in the subject eye had been detected by OP-2 on 10.03.2023, laser photocoagulation was not carried out immediately as the same is a standard norm in such medical emergencies. However, the complainant had no alternative but to agree to the surgery in the circumstances and accordingly he was admitted to RPC, AIIMS, New Delhi. Ultimately, the surgery of the subject eye was carried out on 17.03.2023 successfully and the complainant was discharged on the same day and the copy of the Discharge Report dated 17.03.2023 is Annexure A-5. The Complainant has been paying repeated visits to vitreo- retina OPD at AIIMS for follow-up routines. Even the post operative recovery of the complainant has been frustratingly slow and protracted. The relevant OPD cards are Annexures A-5 and A-6 (Colly). It is further alleged that as the complainant was advised to strictly maintain a prone position for 12-14 hours a day for the first three weeks after his surgery, he is now suffering from back and joint pains along with sleep issues. A copy of the medical prescription dated 03.2023 is Annexure A-7. Due to this medical ailment, the complainant was able to join his duties back on 01.06.2023.  The complainant has also taken laser treatment for extensive lattice degeneration in his left eye.   Prior to the retinal detachment, the complainant was comfortable working on his computer for long hours but due to the aforesaid medical condition, he is not in a position to work for long hours. The root cause of the complainant’s present medical condition and his hardships is the act of negligence on the part of OP No.2, who chose to leave the subject eye of the complainant untreated for a few days despite retinal break/tear and OP No.2 has failed to exercise diligence as expected from the medical practitioner.  Due to the aforesaid negligence acts of OP No.2, the complainant has suffered irreparable loss and immense hardships and the same amounts to breach of the duties on the part of OP No.2.  Thereafter, the complainant sent a legal notice (Annexure C-10) to the OPs which was replied vide reply (Annexure A-11).  The aforesaid act amounts to medical negligence and deficiency in service on the part of OPs. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
   2. OPs resisted the consumer complaint and filed written version, inter alia, taking preliminary objections of maintainability, jurisdiction, cause of action, concealment of facts, non-joinder of parties and also that the complainant is a not consumer qua the OPs.  On merits, it has been admitted that the complainant was examined by OP No. 2 on 10.3.2023 and was advised prophylactic laser for the break and peripheral lattice degeneration in the subject eye. All the pros and cons were discussed in detail by OP No.2. The complainant was shown his ocular photographs and whole etiopathogenesis of the myopia, peripheral lattice degeneration in both eyes and break in right eye was discussed with the complainant. The complainant was advised to undergo the procedure on the same day but he informed that he had come alone, unaccompanied by attendant family member and was very apprehensive about the procedure. He did not give consent for laser and in view of that complainant was told about an alternative date. The complainant was also told about non- availability of OP No.2 for next two days as OP No.2 had to visit Dr RP Centre of Ophthalmic sciences, AIIMS, New Delhi for the conference on 11.03.2023 (Saturday) and 12.03.2023 was Sunday. Accordingly, the complainant was given the next earliest possible appointment on 13.3.2023 for laser by telling him to do strict bed rest except "only bathroom break till that time, because not following bed rest, can result in the retinal detachment in subject eye. The complainant had given his consent and accordingly as per the consensus, the appointment for 13.03.2023 was given. The complainant was informed well about the gravity of the situation. The copy of hospital EMR is (Annexure R1), his personal file is Annexure R-2 and fundus photographs are Annexure R-3.  However, the complainant has not carried out the medical advice of  strict bed rest as a result of which he suffered. Not only this the complainant had chosen to travel to Delhi at his own way despite of the fact that he was advised bed rest and he was informed about the risk of travel as it leads to jerky movement of the head and eye which eventually may cause retinal detachment by fluid vitreous moving into the sub-retinal space. Regarding the whatsapp messages of the complainant, OP No.2 was very courteous to a well-educated person. In this manner, the OPs are not responsible for the decision taken by the complainant to travel to Delhi and get procedure done there instead of getting the same done at OP No.1 on the date of scheduled appointment on 13.03.2023. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
   3. In rejoinder, complainant reiterated the claim put forth in the consumer complaint.  However it is alleged that the OPs have leveled false allegations against him that he is negligent as a result of which he had suffered instead of taking their own responsibility. It is also alleged that OP No.2 had advised the complainant to undergo therapeutic (not prophylactic) laser photocoagulation for the retinal haemorrhage/tear in the subject eye.  In the last, prayer has been made that the consumer complaint be allowed as prayed for.
2.        In order to prove their respective claims the parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3.        We have heard the learned counsel for the parties and also gone through the file carefully, including the written arguments.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that on 09.03.2023 the complainant  got the subject right eye examined from Dr.Salil Kumar Ali of Tenzin Eye Centre, Tenzin Hospital, Panthaghati, Shimla,  who referred him to OP No.2-Dr.Ramandeep Singh serving in OP No.1, as is evident from Annexure A-1 and on the very next day i.e. on 10.03.2023, the complainant was examined by OP No.2 at OP No.1 where his subject eye was examined and he was advised strict bed rest and to come up for treatment on 13.03.2023 being 11.03.2023(Saturday) and 12.03.2023 (Sunday) but during this period, the complainant approached  the treating hospital-Dr.Rajendra Prasad Centre for Ophthalmic Sciences (RPC), All India Institute of Medical Sciences (AIIMS), New Delhi for further treatment where vitreo retinal surgery was conducted and the complainant remained admitted in the treating hospital on 15.03.2023 and was discharged on 17.03.2023, as is also evident from the discharge report (Annexure A-5), the case is reduced to a narrow compass as it is to be determined if OP No.2 by not immediately treating the subject eye of the complainant on the same day i.e. 10.03.2023 and by giving the appointment to the complainant for 13.03.2023 resulted in causing "inferior retinal detachment" in the subject eye as a result of which the was compelled to take vitreo retinal surgery from the treating hospital and the aforesaid act of the OPs amounts to gross medical negligence and the complainant is entitled to the reliefs prayed for in the consumer complaint, as is the case of the complainant, or if by not following the advice of OP No.2 qua strict bed rest, the complainant himself has travelled to Delhi as a result of which the aforesaid surgery was conducted due to his own fault and there is no medical negligence on the part of the OPs and the complaint of the complainant, being false and frivolous, is liable to be dismissed, as is the defence of the OP/OPs.
   2. In the back drop of the foregoing admitted and disputed facts on record, one thing is clear that the entire documentary evidence led by both the parties coupled with the pleadings set out by them along with the medical terms used by the parties are required to be scanned carefully.

“Retinal detachment

Retinal detachment is a serious eye condition where the retina, the thin layer of light-sensitive tissue at the back of the eye, pulls away from its normal position. This separation prevents the retina from functioning properly, which can result in partial or complete vision loss if not treated promptly.

Common symptoms include the sudden appearance of floaters (small shapes that drift across the field of vision), flashes of light, or a shadow or curtain effect over part of the visual field. Retinal detachment is a medical emergency, and immediate treatment, usually through surgery, is crucial to prevent permanent vision loss.

Vitro Retinal Surgery / Laser Surgery?

Vitro-retinal surgery, also known as vitreoretinal or retinal surgery, is a specialised type of eye surgery focused on treating conditions affecting the retina (the light-sensitive tissue at the back of the eye) and the vitreous (the clear gel that fills the eye). This surgery is typically used to address serious eye conditions that can lead to vision loss, including:

Retinal Detachment: Repairing a retina that has detached from the back of the eye.

Macular Hole: Closing a hole in the macula, the central part of the retina responsible for sharp vision.

Diabetic Retinopathy: Treating blood vessel damage in the retina caused by diabetes.

Vitreous Haemorrhage: Removing blood from the vitreous that may cause vision impairment.

Epiretinal Membrane: Removing a membrane that has formed on the surface of the retina, which can cause distortion or blurred vision.

Laser Surgery: In vitreoretinal treatment, laser surgery is used to seal tears or holes in the retina, destroy abnormal blood vessels, or reattach the retina. Laser beams create tiny burns on the retina, helping to fix these problems without invasive procedures.

These surgeries are usually performed by a specialist ophthalmologist trained in retina surgery, often under local or general anaesthesia, depending on the complexity of the procedure.

Photocogulation

Photocoagulation is a medical procedure that uses laser light to treat various conditions. primarily in the eye. The laser emits a focused beam of light that generates heat, which then coagulates or seals blood vessels, tissues, or lesions. This process helps to prevent further damage or leakage, improve vision, or halt the progression of certain eye conditions

Photocoagulation is commonly used in ophthalmology to treat conditions such as

1. Diabetic retinopathy: It helps seal leaking blood vessels or prevents abnormal new vessel growth in the retina.

2. Retinal tears or detachment: It can create a bond between the retina and the underlying tissue, preventing or treating detachment.

3. Macular edema. It reduces swelling in the macula by sealing leaking blood vessels.

The procedure is generally quick and performed under local anaesthesia, usually as an outpatient treatment

Prophylactic Laser?

Prophylactic laser treatment is a preventive medical procedure that uses laser technology to reduce the risk of developing certain medical conditions. The term "prophylactic" refers to actions taken to prevent disease or complications, and in this context, lasers are used to target specific tissues or structures to prevent potential problems

Here are some examples of prophylactic laser treatments

1. Prophylactic Laser Iridotomy. This is a preventive procedure used in ophthalmology to prevent angle-closure glaucoma. The laser creates a small hole in the iris to improve the flow of aqueous fluid within the eye, reducing the risk of increased intraocular pressure

2. Prophylactic Retinal Laser: Used in cases of retinal tears or conditions that could lead to retinal detachment. The laser creates small burns around the retinal tear to "weld" the retina to the underlying tissue, preventing detachment

3. Prophylactic Skin Laser Treatments: Some lasers are used in dermatology to treat skin lesions or areas of abnormal cell growth that could potentially turn cancerous. reducing the risk of skin cancer development.

These procedures are typically done to address or mitigate risk factors before a full-blown condition develops, providing a proactive approach to patient care.

Therapeutic.

"Therapeutic" refers to something that has a healing, calming, or restorative effect on a person’s mental, emotional, or physical state. It can describe activities, treatments, or environments that help improve well-being, reduce stress, or aid in recovery from illness or injury. Examples include activities like painting, meditation, exercise, or professional therapy sessions. The term is often used to describe anything that contributes to a person's overall health and happiness.

Myopia.

Myopia, also known as nearsightedness, is a common vision condition where distant objects appear blurry while close objects can be seen clearly. This occurs when the eyeball is too long or the cornea is too curved, causing light to focus in front of the retina instead of directly on it.

Symptoms of myopia include blurry vision when looking at distant objects, squinting, eye strain, and headaches. It is usually diagnosed through a standard eye exam and is commonly corrected with glasses, contact lenses, or refractive surgery such as LASIK. In some cases, myopia can be managed with special contact lenses or atropine eye drops to slow its progression, particularly in children.

Would you like more information on managing or treating myopia?

1. However, before scanning the evidence led by both the parties, it would be apposite to take note of the legal principle which would apply in the case of medical negligence and has been discussed by the Hon’ble Apex Court in various judgments as well as by the Hon’ble National Commission having been relied upon by the parties.  
2. The Hon’ble Apex Court in Jacob Mathew v. State of Punjab and Another, III (2005) CPJ 9(SC), dealt with the law of medical negligence in respect of professionals professing some special skills. Thus, any individual approaching such a skilled person would have a reasonable expectation under the duty of care and caution, but, there could be no assurance of the result. No doctor would assure a full recovery in every case. At the relevant time, only assurance given by implication is that he possessed the requisite skills in the branch of the profession and while undertaking the performance of his task, he would exercise his skills to the best of his ability and with reasonable competence. Thus, the liability would only come if:

(a)   either a person (doctor) did not possess the requisite skills which he professed to have possessed; or

(b)   he did not exercise with reasonable competence in given case the skill which he did possess. It was held to be necessary for every professional to possess the highest level of expertise in that branch in which he practices. It was held that simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of the medical professional. The Hon’ble Apex Court held as under:

“48. We sum up our conclusions as under:

(1)    Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: “duty”, “breach” and “resulting damage”.

(2)    Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.

        xxx                   xxx                   xxx

(4)    The test for determining medical negligence as laid down in Bolam case [(1957) 2 All ER 118 (QBD), WLR at p. 586] holds good in its applicability in India.

                xxx                   xxx                   xxx

(8)    Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law, specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence.”

3. The term “negligence” has been defined in Halsbury Laws of England (Fourth Edition) para 34 and as settled in Kusum Sharma and Others v. Batra Hospital and Medical Research Centre and Others, I (2010) CPJ 29 (SC) as under:-

            “45. According to Halsbury's Laws of England, 4th Edn., Vol. 26 pp. 17-18, the definition of negligence is as under:

                22. Negligence.—Duties owed to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient.”

 

4. In para 89 of the judgment in the case of Kusum Sharma (supra), the tests of medical negligence while deciding whether the medical professional is guilty of medical negligence, varied tested principles have to be kept in view, the Hon’ble Apex Court held as under:-

“89. On scrutiny of the leading cases of medical negligence both in our country and other countries specially the United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well-known principles must be kept in view:

1. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
2. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
3. The medical professional is expected to bring 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.
4. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
5. In the realm of diagnosis and treatment there is 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.
6. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
7. 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.
8. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck.
9. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension.
10. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurising the medical professionals/hospitals, particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
11. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.”
5. In Dr. Harish Kumar Khurana v. Joginder Singh and Others, (2021) 10 SCC 291, the Hon’ble Apex Court has held that the hospital and doctors are required to exercise sufficient care in treating the patients in all circumstances. However, in an unfortunate case death may occur. It will be necessary that sufficient material on medical evidence should be available before the adjudicating authority to arrive at a conclusion that the death is due to medical negligence. Even death of a patient cannot, on the face of it, be considered to be medical negligence.
6. Recently, the Hon’ble Apex Court has discussed and relied upon the aforesaid judgments in the case related to medical negligence in Chanda Rani Akhouri [Dr. (Mrs.)] & Ors. Vs. M.A. Methusethupathi [Dr.] & Ors., II (2022) CPJ 51 (SC) and has held as under :-

27. It clearly emerges from the exposition of law that a medical practitioner is not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. In the practice of medicine, there could be varying approaches of treatment. There could be a genuine difference of opinion. However, while adopting a course of treatment, the duty cast upon the medical practitioner is that he must ensure that the medical protocol being followed by him is to the best of his skill and with competence at his command. At the given time, medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

28. The term “negligence” has no defined boundaries and if any medical negligence is there, whether it is pre or post-operative medical care or in the follow-up care, at any point of time by the treating doctors or anyone else, it is always open to be considered by the Courts/Commission taking note of the exposition of law laid down by this Court of which a detailed reference has been made and each case has to be examined on its own merits in accordance with law.”

7. Similarly, the Hon’ble Apex Court in the judgment reported in II(2024) CPJ-1(SC) titled as M.A.Biviji Vs. Sunita and Ors. has recently held as under:-

(i) Medical Negligence — Three essential ingredients in determining an act of medical negligence are duty of care extended to complainant, breach of that duty of care and resulting damage, injury or harm caused to complainant attributable to said breach of duty — Medical practitioner will be held liable for negligence only in circumstances when their conduct falls below standards of a reasonably competent practitioner — Due to unique circumstances and complications that arise in different individual cases, coupled with constant advancement in medical field and its practices, it is natural that there shall always be different opinions, including contesting views regarding chosen line of treatment, or course of action to be undertaken — In such circumstances, just because a doctor opts for a particular line of treatment but does not achieve desired result, they cannot be held liable for negligence, provided that said course of action undertaken was recognized as sound and relevant medical practice — This may include a procedure entailing a higher risk element as well, which was opted for after due consideration and deliberation by doctor — Line of treatment undertaken should not be of a discarded or obsolete category in any circumstance — To hold a medical practitioner liable for negligence, a higher threshold limit must be met — This is to ensure that these doctors are focused on deciding best course of treatment as per their assessment rather than being concerned about possible persecution or harassment that they may be subjected to in high-risk medical situations — To safeguard these medical practitioners and to ensure that they are able to freely discharge their medical duty, a higher proof of burden must be fulfilled by complainant — Complainant should be able to prove a breach of duty and subsequent injury being attributable to aforesaid breach as well, in order to hold a doctor liable for medical negligence — Doctors need to establish that they had followed reasonable standards of medical practice.

8. That the Hon'ble Supreme Court in Laxman Balkrishna Joshi v. Trimbak Bapu Godbole & Anr., AIR 1969 SC 128 has held that when a doctor is consulted by a patient, the doctor owes to his patient certain duties which are (a) a duty of care in deciding whether to undertake the case; (b) a duty of care in deciding which treatment to give; and (c) a duty of care in administration of that treatment. A breach of any of the above duties may give a cause of action for negligence and recovering damages.
9. That the Hon'ble National Consumer Disputes Redressal Commission, vide order dated 24.05.2019 in Mohan Dai Oswal Cancer Treatment and Research Centre & Ors. v. Prashant Sareen & Ors., FA/208/2008, has held that when a medical professional, who possesses a certain degree of skill and knowledge, decides to treat a patient, he is duty bound to treat him with a reasonable degree of skill, care, and knowledge. Failure to act in accordance with medical standards in vogue and failure to exercise due care and diligence are deemed to constitute medical negligence. Thus, a medical practitioner shall be held liable for medical negligence wherein his conduct falls below the standards of a reasonably competent practitioner in his field. He is expected to retain a reasonable degree of skill and knowledge and exercise a reasonable degree of care. It is to be noted that the degree of skill, competence, and care need not be of the highest order, but should be "reasonable".
10. In the case in hand, the complainant has come with the plea that there is medical negligence on the part of the OPs as OP No.2 had not carried out the requisite treatment after knowing and understanding the risk involved in the subject eye immediately on 10.03.2023 and had given further appointment for 13.03.2023 as a result of which "inferior retinal detachment" in the subject eye had occurred, which compelled the complainant to take treatment from the treating hospital who conducted the vitreo retinal surgery and in support of his allegations, the complainant has relied upon the copies of the Out Patient Card (Annexure A-2) issued by the OPs.  These allegations of the complainant are denied by the OPs on the ground that the complainant himself has shown his inability for the prophylactic laser for the break and peripheral lattice degeneration by intimating that he had come alone, unaccompanied by attendant family member and was very apprehensive about the procedure due to which he had not given his consent for laser and as OP No.2 was not available on 11.03.2023 (Saturday) and 12.03.2023 (Sunday) due to his conference at Delhi in the treating hospital, the complainant had agreed for the next appointment on 13.03.2023 and due to the aforesaid negligence act of the complainant who had travelled to Delhi despite of the advice of OP No.2 for strict bed rest, the complainant has suffered and there is no negligence on the part of the OPs.
11. Perusal of Annexure A-2 (a copy of the OPD card at page 35 of the complaint book) clearly indicates that the complainant was advised bed rest by OP No.2 on the same day i.e. 10.03.2023 when he was first time examined by OP No.2 and as the complainant himself had admitted in the whatapps message (Annexure A-3) that he has travelled to Delhi and started taking treatment from the treating hospital on 12.03.2023, as is also evident from Annexure A-3, it is clear that the complainant himself has not followed the advice of OP No.2 i.e. strict bed rest of OP No.2 and has travelled to Delhi for his treatment in the treating hospital. The whatapps messages (Annexure A-3) further indicate that on the one hand, the complainant has intimated OP No.2 about the treatment being taken by him  from the treating hospital at Delhi and on the other hand, the complainant informed OP No.2 that the complainant already had RD and the subject eye will be operated and he was recovering and on the contrary he also informed that he will be in touch with OP No.2 and he will see OP No.2 on Monday at 4:00 P.M. making it clear that due to the journey performed by the complainant to Shimla and Delhi despite of the advice of OP No.2 for complete bed rest, "inferior retinal detachment" had occurred and it unsafe to hold that the OPs are negligent by giving appointment for 13.03.2023 to the complainant.
12. The complainant has further denied the defence of the OPs taken up by them in their written version in the rejoinder that prophylactic laser for the break and peripheral lattice degeneration in the right eye was prescribed by alleging that in fact OP No.2 had advised the complainant to undergo therapeutic. However, these allegations made by the complainant in the complaint further stands falsified from para 3(iii) of the complaint where the complainant has alleged that OP No.2 had noted down his findings qua the subject eye as "myopic vitreous degeneration + vitreous haemorrhage, 300° retinal degeneration 12 o'clock retinal haemorrhage/due to break as a result of which OP-2 prescribed "laser of the break and lattice area 300° and in para 3(v), the complainant has alleged that OP No.2 had fixed the date and time of 13.03.2023 at 4:00 P.M. for the laser treatment which falsified the allegations made by the complainant in the rejoinder that OP No.2 has advised for therapeutic and not for photocoagulation. Moreover, the personal record of the complainant i.e. EMR Sheet (Annexure R-1) further indicates that the complainant was already undergoing treatment for glaucoma myopia from AIIMS and he was counseled for prophylactic laser in detail but the patient was apprehensive and due to non-availability of family attendant, he was given option for treatment on next date by intimating about the non-availability of OP No.2 on 11.03.2023(Saturday) and he was also told about the pros and cons and advised strict bed rest till laser. Even Annexure R-2  further indicates that the complainant was informed about the non-availability of OP No.2 on 11.03.2023 and was explained about the strict bed rest and report for laser on  13.03.2023 at 4:00 P.M. and the patient clearly understood and has given his consent for that, making further clear that the complainant was not advised by OP No.2 for therapeutic rather he was advised for laser treatment.
13. In view of the forgoing discussion and the ratio laid down in the aforesaid judgments passed by the Hon’ble Apex Court and Hon’ble National Commission having been relied upon by the parties, as the complainant has failed to prove on record that there was any breach of duty exercised by the OPs or that the conduct of OP No.2 falls below the standard of reasonably competent professional or that there was negligence on the part of OP No.2 rather it has come on record that OP No.2 has explained in detail to the complainant about the pros and cons of the treatment to be given to the complainant for the subject eye with advice of strict bed rest  and as the complainant himself has not followed the advice of OP No.2, the complainant by traveling from Chandigarh to Shimla and to Delhi for further treatment from the treating hospital instead of approaching the OPs on 13.03.2023 at 4:00 P.M. and thereby had taken the treatment from the treating hospital even after two days i.e. 15.03.2023 instead of 13.03.2023 which date has already been given by OP No.2 for laser treatment and it is safe to hold that there is no medical negligence or deficiency in service on the part of the OPs.

4.        In the light of the aforesaid discussion, the present consumer complaint, being devoid of any merit, is hereby dismissed leaving the parties to bear their own costs.
5.         Pending miscellaneous application(s), if any, also stands disposed off.
6.        Certified copies of this order be sent to the parties free of charge. The file be consigned.

01/10/2024			Sd/- [Pawanjit Singh] President
			Sd/-
			[Surjeet Kaur] Member
			Sd/-
			[Suresh Kumar Sardana] Member