HON’BLE MR. TARAPADA GANGOPADHYAY, MEMBER
This Appeal u/s 15 of the Consumer Protection Act, 1986 has been directed by the OP Nos. 1,2 & 3 assailing the judgment and order dated 16.4.2013 passed by the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas in Complaint Case No. 279/2011, directing the OP Nos. 1 & 2 to pay jointly and severally to the Complainant Rs. 5,00,000/- as compensation and Rs. 50,000/- as punitive damages together with Rs. 10,000/- as cost within one month from the date of the order, failing which the said OPs shall have to deposit with the State Consumer Welfare Fund Rs. 250/- per day of default as interest.
The brief facts of the case, as emerging from the materials on records, are that the Complainant visited OP No. 4-Doctor on 27.10.2010 with complaint of ‘clotted blood in the right eye’ when the OP No. 4-Doctor cleared/removed the said blood clot and prescribed Eye-drop with advice for revisit after three weeks for follow-up. Accordingly, the Complainant revisited the OP No. 4 on 17.11.2010 when the OP No. 4-Doctor found some improvements in the eye-vision and prescribed Eye-drop with advice for re-visit after three weeks for follow-up. After six weeks when the Complainant re-visited on 11.1.2011 to the OP No. 4-Doctor he diagnosed ‘Vitreous Haemorrhage’ and referred the Complainant to OP No. 2-Doctor, being the Retina Specialist, who diagnosed ‘Sclerosis with Proliferative Diabetic Retinopathy in the right eye’ for which ‘small incision cataract surgery with Acrysof foldable lens implantation’ was done in the right eye on 21.1.2011. After such surgery, the OP No. 2-Doctor diagnosed ‘post-operative endophthalmitis with secondary glaucoma’ in the right eye. The OP No. 2 further conducted an operation in the right eye on 21.1.2011 and discharged on 22.1.2011 and cleared the pus on 27.1.2011. The Petition of Complaint reveals that even after such series of operations the unbearable pain in the right eye did not decrease. Then the Complainant visited one doctor at North Bengal Eye Centre at Siliguri, who diagnosed ‘permanent loss of vision’. After such diagnosis the Complainant visited L.V.Prasad Eye Institute, Hyderabad where diagnosis of ‘nonproliferative diabetic retinopathy in left eye, status post VR surgery and status post endophthalmitis in the right eye’ was done with prescription of ‘Flur eye-drops 4 times a day’ and ‘poor visual prognosis’ was informed. With the aforesaid factual background, the Complainant moved the Complaint concerned before the Ld. District Forum which passed the order in the aforesaid manner. Aggrieved by such order the OP Nos. 1 to 3 have preferred the instant Appeal.
The Ld. Advocate for the Appellants, filing BNA with some Publications, submits that the Ld. District Forum passed the order without properly considering the sequence of the surgery done, such as, removal of the clotted blood at first at the outdoor, Acrysof foldable lens implantation with vitrectomy at the second stage and re-vitrectomy at the final stage.
The Ld. Advocate also submits that the Ld. District Forum also erred in speculating medical negligence on the part of the Appellants/OP Nos. 1,2 & 3 in the absence of expert-opinion. In this context, the Ld. Advocate has referred to the following decisions of the Hon’ble National Commission:
- Inderjeet Singh Vs. Dr. Jagdeep Singh, reported in 2004 (2) CPR 45 (NC) and
- N.Krishna Reddy Vs. Christian Medical College and Hospital, reported in 2007 (2) CPR 260 (NC)
wherein it was observed that in absence of expert-evidence the Complaint alleging medical negligence would not succeed.
The Ld. Advocate continues that the Ld. District Forum incorrectly observed without support of evidence of treatment that the vision in the right eye was lost although the medical report dated 2.4.2011 of L.V.Prasad Eye Institute reveals that the vision became ‘poor’ instead of being lost.
The Ld. Advocate further submits that the post-operative endophthalmitis, to which the diabetic patient as is the Complainant concerned is vulnerable as in the diabetic patient the immunology is compromised, was taken care of as per standard medical protocol by applying appropriate antibiotics.
The Ld. Advocate also submits that it is well-settled that in the medical treatment success cannot be guaranteed and progress of stages cannot be noted down.
The Ld. Advocate concludes that the aforesaid submission indicates that the Ld. District Forum passed the order impugned on the basis of conjecture and presumption and without following the settled principle of law in establishing medical negligence and hence, the instant Appeal should be allowed the order impugned be set aside and the Complaint be dismissed.
On the other hand, the Ld. Advocate for the Respondent No. 1/Complainant submits that the Publications furnished by the Ld. Advocate for the Appellants at the appellate stage should not be accepted as those were not furnished before the Ld. District Forum.
The Ld. Advocate also submits that non-recording of prognosis and progress of operations done in the documents of treatment indicates the absence of proper and diligent care on the part of the Appellant/OP Nos. 1 & 2.
The Ld. Advocate further submits that before operation in question the patient was not diagnosed by the Appellant/OP No. 2 -Doctor with endophthalmitis but diagnosed after operation in question, which clearly indicates that the Appellant/OP No. 2-Doctor did not take proper preventive care before operation to prevent endophthalmitis, which is generally caused for inadequate wound-closer due to propensity of wound-leak or subsequent intra-ocular ingress of surface micro-organism.
The Ld. Advocate continues that the operations one after another without considering history of diabetes and high blood pressure of the patient concerned also indicate lack of proper and diligent care on the part of the Appellant/OP No. 2 -Doctor.
The Ld. Advocate adds that the Appellant/OP No. 2 -Doctor did not take proper care about the post-operative severe pain in the right eye which also indicates absence of proper service on behalf of the Appellant/OP No. 2 -Doctor.
The Ld. Advocate continues that the documents of surgery, as available on records, indicate that the Appellant/OP No. 2 -Doctor did not do what other medical practitioners of the same class would have done.
The Ld. Advocate continues that the Appellant No. 1/OP No. 1-Eye Hospital is also vicariously liable for its failure to ensure careful service on behalf of the Doctors engaged with it for careful treatment.
The Ld. Advocate concludes that the aforesaid submissions clearly indicate that there were breach of ‘duty’ on the part of the Appellants/OPs which caused ‘resultant damages’ to the vision of the patient concerned.
Heard both the sides appearing, considered their respective submission and perused the materials on records.
The documents of treatment, as available on records, do not contain anywhere therein any observation of the Appellant/OP No. 2-Doctor about the history of diabetes and hypertension of the patient concerned. The said documents also do not contain any observation of the Appellant/OP No. 2 -Doctor about the diagnosis of endophthalmitis before the operation in question which clearly indicates that the endophthalmitis occurred for failure on the part of the Appellant/OP No. 2 -Doctor to take proper and diligent care on their behalf. The documents of treatment also do not reveal any finding of the Appellant/OP No. 2-Doctor about taking proper preventive steps, such as, application of Povidone- Iodine directly to the eye-lead margins, eyelashes and conjuctival ocular surface, as revealed from the Publications produced, specially in the case of diabetic patient who is vulnerable to infection because of immunological compromise.
The documents of treatment, as available on records, reveal that endophthalmitis occurred to the patient concerned after operations in question which were carried out without taking proper preventive care for reduction of endophthalmitis, particularly in case of diabetic patient, as mentioned before.
The aforesaid facts, evidence on records and observations indicate that three essential components of medical negligence, i.e. ‘duty’, ‘breach’ and ‘resultant damage’, as observed in Para-10 in the decision of the Hon’ble Supreme Court in Jacob Mathew Vs. State of Punjab & Anr., report in (2005) 6 SCC 1 are present in the case on hand.
As to the expert-opinion, it is well-settled by the Hon’ble Supreme Court in the decision dated 8.3.2010 in Civil Appeal No. 2641 of 2010 (V.Kishan Rao Vs. Nikhil Super Speciality Hospital) that there cannot be a mechanical approach that each and every case must be referred to the expert and acceptance of expert-opinion is not mandatory.
The Appellant No. 1/OP No. 1-Eye Hospital is also vicariously liable for its failure to ensure proper and diligent service by the Appellant No. 3/OP No. 2-Doctor engaged with it for careful treatment.
In view of the above decisions of the Hon’ble Supreme Court, the decisions referred to by the Ld. Advocate for the Appellants is of no help to the Appellants/OPs.
Consequently, the aforesaid facts, evidence and observation lead us to conclude that the instant Appeal deserves dismissal and is dismissed accordingly. The impugned order is affirmed. No order as to costs.
