Complainant SmtShefali Das by filing this complaint has submitted that her husband was suffering from insufficient eye sight of his right eye since 11.07.2013 and hearing about his poor vision on his right eye she along with her husband went to PurwanchalNagarikSamity who are engaged for treatment of eye on 11.07.2013 and the said Samity duly issued booking slip-cum-money receipt and her husband was referred to Dr. KakaliSaha (Ray) for his treatment and on proper verification of his right eye, the doctor advised her that her husband has been chocked with right eye and required immediate operation and said doctor also advised that the necessary operation for fake will be done at J.N. Ray SishuBhawan at 58/15, Raja Dinendra Street, Kolkata – 06 and as per her advised complainant contacted with the said SishuBhawan and had deposited a sum of Rs. 100/- along with advance of Rs. 500/- and Dr. KakaliSaha (RAY) made operation at the SevaBhawan on payment of Rs. 3,500/- on 24.07.2013 but due to negligence of operation by KakaliSaha (Ray) her husband loss his vision on his right eye.
After that she contacted with Susrut Eye Foundation and Research Centre at Salt Lake City, Kolkata 700106 on 06.09.2013 and through examination by Dr. B. Ghosh of the said Research Centre, the said doctor declared that the former doctor has made a great negligence over the proper care and attention against the said operation and for which her husband lost his vision over his right eye and first conducting doctor KakaliSaha (RAY) made negligence against placing the lens over the right eye and there is a simple chanceto rescue from the same and to regularize they advised the complainant for taking a time by the doctor for recovery that.
Accordingly complainant along with her husband went to the said Susrut Eye Foundation and Research Centre at Salt Lake on 24.08.2013 under a package expense of Rs. 10,000/- and her husband was admitted on 28.08.2013. But all their efforts were in vain because the previous doctor KakaliSaha (Ray) made a blunder which cannot be cured and ultimately her husband lost his right eye. But now her husband has his vision in his left eye.
After that incident on 03.09.2013 complainant made a written complaint about the loss of vision of her husband before the Officer-in-charge of Phoolbagan P.S. and also made a complaint before the CA Department, 11A, MiezaGhalib Street. Kolkata – 87 on 24.09.2013 and also wrote a letter to Dr. KakaliSaha (Ray) at her address. But both the letters were returned mentioning undelivered.
He husband is the only earning member of her family and practically for loss of his vision, the income of her husband has been decreased and family has been facing much financial crisis and that was caused due to negligence of Dr. KakaliSaha (Ray) and in the circumstances complainant has filed this case praying for redressal for negligence and deficient manner of service on the part of the Dr. KakaliSaha (Ray).
On the other hand KakaliSaha (Ray) by filing written statementsubmitted that the complaint is completely mis-conceived, speculative, frivolous, vexatious and unsustainable in the eye of law because complainant has failed to explain as to how the op was negligent. No expert opinion is also filed by the complainant to prove that the negligence of the op, only to defame the doctor/op complainant has filed this complaint.
It is further submitted that in case history sheet or OPD ticket of M/s. Susrut Eye Foundation and Research Centre there is no any written documentary evidence or comment of the lens being wrongly place in the patient right eye, moreover the USG report was done which suggested only of Choroiditis with no comment on the position of the lens and had the lens been wrongly placed it would be surely documented or commented on the USG Report and so the present case is completely false and fabricated.
It is further submitted that present op is well doctor having much experience and skilled. But it is submitted that on 05.07.2013 the patient approached Dr. KakaliSaha (Ray) at PurwanchalNagarikSamity with a complaint of diminished vision in the right eye and on medical examination it was diagnosed that there was a mature cataract in the right eye and vision in right was PLPR and thus the complainant was advised surgery of the right eye cataract and it is specifically mentioned that the consent of the operation on 24.04.2013 at J.N. Roy Hospital, operation was done and SICS with PCIOL under LA was done diligently and prudently with due care and caution and post operation of the patient was discharged on very next day. On 25.07.2013 at PurwanchalNagarikSamity and on that day dressing was changed and patient had striate keratopathy and visual activity – finger count was positive and patient was asked to follow up after one week. But patient did not follow after 3 weeks of operation probably on 16.08.2013 the patient party contacted with the op over mobile phone and explained that the patient is feeling pain and redness and poor vision in the right eye op asked the patient to come for check-up and patient went on 19.08.2013. Considering the financial condition of the patient and in good faith op made prescription on the back side of discharge certificate of J.N. Ray Hospital.
On examination there was diffuse conjunctival congestion with hazy cornea and details of anterior chamber could not be seen and digital pressure was low and an oral antibiotic (Tab Taxim – O) was given and patient party then informed op that they had done an USG report that the lens had not been properly placed. So op advised the complainant to come with USG report and on 22.08.2013 at PurwanchalNagarikSamitypatient was reexamined and not much improvement seen. Antibiotics changed (Tab Clavam -625 mg) when enquired about the USG report and the patient party could not offer a valid reason for not coming with the USG report. But on 24.08.2013 at PurwanchalNagarikSamity, this time only patient party came and according to the statement of patient’s wife, patient was not doing well and so he could not come and there was no improvement and this time also she did not produce the USG report. So op referred the patient to R.I.O. Medical College & Hospital for better management keeping in mind the financial condition of the patient.
No doubt the patient party made accusation against the op for negligence against right eye of the patient. But the treating doctor of Susrut Eye Foundation & Research Centre Dr. B. Ghosh in his case history or OPD ticket did not make any comment of the lens being wrongly placed in the patient right eye. Moreover USG report done is suggestive only of Choroiditis with no comment on the position of the lens. Practically it is specifically mentioned that patient was negligent about regular follow up and not doing USG taking medicines and eye drops on time and patient did not go there where op referred the patient to Medical College. Later after ruining the entire condition approached Dr. B. Ghosh of M/s. Susrut Eye Foundation & Research Centre. It is clear example of legal maxim novasactisintervenince. The lens was placed properly but it was the infection because of the irregular follow-up and bad hygiene and neglect and not taking antibiotics led to delayed 3 weeks after surgery.
On the other hand op has denied all the allegations as made by the complainant in his written statement and submitted that the story as made out by the complainant in the complaint is completely false and fabricated and it has no legal sanctity and complainant has failed to prove any sort of negligence on the part of the op for which the complaint should be dismissed.
Further M/s. Susrut Eye Foundation & Research Centre by filing written statement has submitted that complainant visited op no.4 on 16.08.2013 with complaint of loss of vision after cataract surgery in right eye and on clinically examination of the patient it was found that the patient was suffering from hypotony, i.e. low intraocular pressure of the right eye and IOL touching cornea and as such a confirmatory USG test of the affected eye was advised and after USG it was showed chorodial detachment.
Thereafter again patient visited the op no.4 with the USG report on 24.08.2013 and on evaluating the test report the consultant Dr. B. Ghosh was of the opinion that conservative management will not improve the condition of the patient and may cause severe complication and as such advised admission with the op no.4 for Anti Vit + IOL explanation with guarded prognosis. The patient underwent the procedure under local anesthesia on 28.08.2013 and before operated the patient party and their relatives were explained about the complication and the risk involved in the surgery and this factor involved in the second operation an informed consent was also taken by the op no.4.
The surgery was done on 28.08.2013 was uneventful and the complainant was released on 29.08.2013 and it is stated that on 31.08.2013 the patient was again reviewed when it was found that the successful and desired objectives of the surgery has been made.
Thereafter complainant was asked for the bed head ticket of the complainant during his stay in the hospital which was supplied to him as per the law of the land which has also been admitted by the complainant. It is further submitted that op no.4 provided all possible support and treatment to the complainant at all possible time and it is further stated that the complication with which the complainant first visited the op no.4 is a known complication of IOL implant. It is further submitted that the complainant had not claimed any compensation from the op as there was no laches on the part of the op no.4.
Further op no.1 PurwanchalNagarikSamity by filing written statement has submitted that PurwanchalNagarikSamity is a registered organization and charitable unit which provide medical assistance to the lower income people of the society and the doctor attached with the society take care of the patient individual in case of necessity of the operation the case was referred to Government Hospital and Nursing Home of their choice of PurwanchalNagarikSamity company and service provider has no administration to control over the said doctor and they have denied the allegation of the complainant no payment was done in the said PurwanchalNagarikSamity premises or under their control. But the doctors who attend the Samity office examine the patient directly without any introduction and supervision of any person of the Samity and as such it is total false and fabricated allegation that the complainant contacted the op no.2 through op no.1 on 11.07.2013 and they never render negligent manner of service for any means and considering the above fact the complaint should be dismissed against that.
Decision with reasons
On proper study of the complaint including the written version of Dr. Kakali d also of the proforma op M/s. Susrut Eye Foundation & Research Centre, it is clear and accepted fact that on 11.08.2013 patient Sailen Das was examined by op Dr. Kakali Das Saha (Ray) op no.2 at PurwanchalNagarikSamitycentre when he found diminished vision in the right eye and on medical examination op no.2 was confirmed that there was a matured cataract in the right eye and vision of the right eye PL+ PR defective and thus it was advised surgery of the right eye cornea and considering that advance stage of cataract and before operation it was discussed at length and thereafter on the consent of the patient party and also the patient on 24.07.2013 at J.N. Roy Hospital the operation was done and SICS with PCIOL under LA was done and postoperative period was uneventful and the patient was discharged on the very day with advise to come and follow up the advise and on 25.07.2013 dressing was changed by op no.2 the doctor who operated his right eye as admitted that patient had straitekeratopathy but visual finger count was positive at 1 feet and patient was asked to follow up after one week. But allegation is that patient did not turn up, but patient party contacted over mobile phone and expressed that patient was feeling pain with redness with poor vision in the right eye when op asked the complainant to bring the patient and patient was admitted for review on 19.08.2013 at PurwanchalNagarikSamitycentre and on examination it was detected that it was diffused conjunctival congestion with hazy cornea and details of anterior chamber could not be seen. Digital pressure was low, oral antibiotics was given and when the patient party reported that they had done an USG report which suggested that the lens had not been properly placed, so op no.2 advised them to come with USG report and on 22.08.2013 at PurwanchalNagarikSamitycentreand the patient was re-examined but not much improvement was seen though antibiotics was changed. But USG report was not shown and failed to give any satisfactory reason for what reason they did not come on 24.08.2013 along with patient and said USG report. Even then op has submitted in her written version that at that time she advised the complainant to go to Medical College & Hospital for better management and further treatment. But they did not go there. So, this part is also not challenged by the complainant even after submission of written version of op no.2. so, undisputed fact is that cataract was operated by the op no.2 Dr. KakaliSaha (Ray) and as per her opinion patient had straitekeratopathy. So, it was the duty of the doctor considering the condition of the right eye of the patient what process would be taken for such operation because it is proved from her own document that op no.2 M.B.B.S., M.S. on Opthalmology no doubt she is a skilled doctor having such experience to operate cataract.
Undisputed fact is that op no.2 operated right eye of the patient and placed lens. Complainant’s claim is that her husband after operation did not regain eye sight and op no.2 failed to improve her husband right eye sight even after operation. But only op no.2 time to time changed medicines but ultimately complainant’s husband failed to see anything and her husband realised that he had lost his right eye sight,when complainant went to M/s. Susrut Eye Foundation and Research Centre on 16.08.2013. But truth is that operation was done by op no.2 Dr. KakaliSaha (Ray) on 24.07.2013 and from the op no.2’s own document,her written version and evidenceit is found that up to 24.08.2013 she treated the patient Sailen Das even after operation.
But improvement was not found by the patient regarding his vision. Invariably in this situation for some opinion complainant went to Susrut Eye Foundation & Research Centre on 16.08.2013 in the meantime and after USG it was found that it was impossible to revive by conservative management. So, further operation was required and that operation was done on 28.08.2013 and fact remains that proforma op Susrut Eye Foundation & Research Centre has submitted that after operation it was uneventful and complainant was released on 29.08.2013 and on 31.08.2013 the patient was again reviewed when it was found that the operation was successful and desired objective surgery has been made.
But peculiar factor is that in respect of that positive assertion op proforma op with the Eye Foundation there is no denial on the part of the complainant. When that is the fact then question remains how the complainant is claiming that her husband lost his eye sight because they have their no allegation against the proforma op of Susrut Eye Foundation & Research Centre. They are made party and the Susrut Eye Foundation & Research Centre submitted their written version and also their other answer etc. by which they have asserted that second operation on the right eye of the complainant’s husband was done on 28.08.2013 which was uneventful and on 29.08.2013 complainant’s husband was released when it was found that desire objective of the surgery has been made but eye sight could not be recovered and thus complainant collected beded ticket which was supplied to the complainant. If we rely upon the specific written version of the proforma op Susrut Eye Foundation & Research Centre, it can safely be said that after second operation her husband did not regain his eye sight.
But peculiar matter is that complainant has not stated in so many words in the complaint that the proforma op was able to recover the eye sight of her husband. At the same time complainant has filed paper to show that complainant’s husband even after second operation by Susrut Eye Foundation & Research Centre lost his eye sight. Further after considering the document of Susrut Eye Foundation & Research Centre as supplied by the complainant it is found that there is no such comment of the doctor of Susrut Eye Foundation & Research Centre that there was any defect in placing the lens in the right eye of the complainant’s husband after operation by Dr. KakaliSaha (Ray) and from the said report of the Susrut Eye Foundation & Research Centre it is found that complainant’s husband was treated by the hospital up to 18.10.2013. But there is no whisper of the doctor of Susrut Eye Foundation & Research Centre that there was any negligence on the part of the previous Dr. KakaliSaha (Ray) during operation and complainant has miserably failed to prove any cogent document that his right eye was totally lost and to that effect there is no certificate issued by the Susrut Eye Foundation & Research Centre but truth is that at present his eye is found full damaged which is found from his physical appearance.
On the contrary Susrut Eye Foundation & Research Centre authority have submitted written statement and also submitted the very purpose ofsecond operation but very result was not achieved i.e. about loss of eye sight there is no end. Not even there is any comment made by the Susrut Eye Foundation & Research Centre that procedure as adopted by Dr. KakaliSaha (Ray) was not proper and due to her negligence the damage was created. At the time of hearing the argument this Forum asked the op’s Ld. Lawyer to show certificate/document that at least that lens was properly placed inside the eye..- accepted medical process. But after thorough scrutiny of the documents as filed by the complainant we have failed to search any such report of op no.2 doctor that lens inside the right eye of the complainant’s husband was placed by op no.2 Dr. KakaliSaha (Ray) by adopting all accepted process. But allegation in the complaint that lens was not properly placed for which he lost his sight but no report is produced by the op. But USG report supports thick membrane echoex which is not attached to disc and not disappearing in low gain suggestive of chorodial detachment and that report was prepared by Susrut Eye Foundation & Research Centre and after collecting that report Susrut Eye Foundation & Research Centre made all sorts of step for recover from his said chorodial ailment and truth is that since 16.08.2013 to 18.10.2013 he was under treatment of Susrut Eye Foundation & Research Centre.
But from the report of the Susrut Eye Foundation & Research Centre on 06.09.2013 it is found that even after that operation USG shows Chorodial detachment and for which the second operation was done. Apparently it is clear that even after second operation eye sight could not be recovered. But from that report it is clear that he was aged about 68 years and fact remains that USG reveals that it was Chorodial detachment and cornia was at belated stage due to IOP Hapti Cornea except there is no report on the part of the doctor of Susrut Eye Foundation & Research Centre or on the part of op no.2 but it is admitted position that in this case complainant has lost his right eye completely after first operation done by the op no.2 but op no.2 (doctor)’s contention is that it was due to negligence of the patient complainant and in fact infection started due to patient’s noncompliance of the advice of the op no.2 but most interesting factor is that op no.2 has her degree MBBS, MS and it is modern era of high technology but op no.2 has miserably failed to exhibit the reasonable skill and case in performing the surgery in case of cataract surgery of the complainant when IOL had been implanted by the op no.2 but nowhere in her written statement or evidence of op no.2 she has not stated what pre-requisite diagnosis was done by op no.2 to know the status of the eye before operation including the status of the retina etc. So it is clear that op no.2 has failed to produce any evidence in support of her process as adopted for treatment and cataract operation.
But considering the modern books of ophthalmology and pre-requisite process of cataract surgery and implantation of intraocular lens on an in depth study of the said particular chapter and present prescription and discharge summary of the patient issued by the op and also the written version and evidence of op no.2 it is found that op no.2 did not properly diagnose which is evident from the op no.2’s own prescription and written version including evidence.
In fact we are ventilating the vital fault of the op no.2 who did not ascertain by B-Scan prior to cataract operation and when IOL had been implanted and what was the status of the said right eye when as per modern trend of high technology a normal doctor shall have to ascertain by obtaining B. Scan what is the status of the affected eye to determine whether same (cataract operation with IOL) could be done or not but in this particular case op no.2 a specialist doctor without obtaining B. Scan and without ascertaining the status of the eye including retina carried out the surgery leaving a lost eye with the complainant but as per modern medical science B. Scan is a pre-requisitefor knowing the status of the eye before carrying surgery but op no.2 has failed to prove that she took such measure before surgery to determine the status of the eye and for which without knowing the status of the eye when cataract surgery and IOL had been done, the damage had already been done and so subsequent USG was of no use and it is a clear case of negligence and important lapses on the part of the op no.2 doctor. So, no other expert opinion/evidence is required and on overall evaluation of the entire materials we are inclined to hold that it is clear case of negligence of medical practitioner op no.2 resulting in loss of right eye and no doubt eyes are very sensitive organs so proper attention and care should be taken by the eye surgeon before operation with IOL.
No doubt in this case op no.2 has tried to convince that acute Endoplasma is a devastating complications that occurs in about 1:1000 cases. Despite early treatment about 50percent eye became blind and source of infection- in most of the cases, cannot be identified with certainty and it is thought that the patient’s own external bacterial flora of the eyelids, conjunctiva and lacrimal drainage passages is the most frequent culprit and other potential sources of infection are contaminated solutions and instruments and environmental flora including that of the surgeon and operating room personnel and Ld. Lawyer for the op submitted that might be that infection was caused which was beyond the control of the doctor.
But considering the prevention procedure as laid down in theClinical Ophthalmology a Systematic Approach 4th Edition by Jack J. Kanski, we have gathered that there is prevention procedure and that procedure is “…….. prevention by the following measures may be beneficial in prevention of bacterial endophalmitis: (a) Treatment before surgery of pre-existing infections such as staphylococcal blepharitis, conjunctivitis, dacryocystitis, or infected contralateral sockets in patients with ocular prostheses. (b) Preoperative instillation of povidone-iodine. A 5percent solution is prepared by diluting the full-strength 10percent Betadine aqueous solution used for skin preparation with 1:1 balanced saline solution. Two drops of the diluted solution are instilled into the conjunctival sac and the eyelids gently manipulated to distribute the solution over the ocular surface. Following preparation of the skin and draping, the eye is irrigated with saline solution.
But peculiar factor is that op no.2 has not stated in her written version that she adopted such preventive process before operation and she was satisfied that the patient’s own external bacterial flora of the eyelids, conjunctiva and lacrimal drainage passage were not there. Further op no.2 has not stated in her evidence and written version that she took all such steps for sterilization of the instruments and procedure was adopted before operation for sterilization of the entire instrument used for the operation and operative room was free from any infection.
In this regard we have gathered that op no.2 is very much silent about that fact and further after studying some paragraphs of Terry MA regarding cataract surgery and other chapters it is found that corneal decompensation is often caused for non-sterilization ophthalmology surgical equipment’s which lead to corneal decompensation. Moreover the doctor/op no.2 has not stated that sterilized ophthalmology instrument were used by the op no.2. In this context it is to be mentioned that in the discharge summary or treatment sheet, there is no note what type of system op no,2 took to sterilize ophthalmology surgical equipment. But modern world famous doctor of Opthalmology have opined that to sterilize by Abtox system has already been discontinued all over the world because it may cause infection led to corneal endothelial decompensation and it is caused within 24 hours after surgery in any patient undergoing intraocular ophthalmic surgery and the said world famous doctor ophthalmologist opined that ophthalmic equipment should be sterilized. But op no.2 has not stated whether for sterilisation of the ophthalmic equipment whether she adopted AbtoxPlazlyte system or Steam Autoclave system. But it is proved that Steam autoclaving is the preferred method for sterilizing surgical instruments and at the same time sterilisation of the operation theatre or room is highly required in case of eye operation. But op has not stated whether she took such measures for preventing infection during operation and before operation to protect the eye of the patient. But anyhow op no.2 has failed to prove that she took all preventive measures as per medical science before operating the eyes of the complainant. So, negligence on the part of the op no.2 as specialist doctor is well proved and there is no ground to disbelieve that this doctor did not perform her duties as skilled doctor at best before and after such eye operation of the complainant in the said nursing home where complainant was admitted as per direction of op no.2.
In the light of the above observation we are convinced to hold that it is no doubt a clear case of medical negligence on the part of the op no.2 result in loss of right eye of the complainant and no doubt considering the loss of organ in this case as eye of the complainant specially in the modern era of high technology. We are inclined to hold that the compensation should be ascertained in view of the present conduct of the op no.2 and for loss of right eye sight of the complainant at this age.
Hence, it is
Ordered,
That the complaint be and the same is allowed on contest against the op no.2 with a cost of Rs. 10,000/- and same is dismissed without any cost against the other ops.
Op no.2 is hereby directed to pay a compensation of Rs. 3,00,000/- (Three Lakhs) to the complainant for causing loss of right eye sight of the complainant due to negligent and deficient manner of service and treatment of the op no.2 and decretal amount of total Rs. 3,10,000/- (Three Lakhs and Ten Thousands) shall be paid within one month from the date of this order failing which op no.2 shall pay penal damages of Rs. 300/- per day till full satisfaction of the decree and penal damages shall be paid to this Forum’s Account if accrued/collected.
If op no.2 violates the order of this Forum even after stipulated period in that case penal action u/s 27 of C.P. Act 1986 shall be started for which further fine and penalty shall be imposed.
