BEFORE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD
F.A.No. 691 OF 2014 AGAINST C.C.NO.200 OF 2013 DISTRICT CONSUMER FORUM RANGA REDDY
Between
- The Employees State Insurance Corporation
Model Hospital, Nacharam, Hyderabad, R.R.Dist.
Rep. by its Authorized Signatory
- The Head of the Professor
Department of Opthalmology
The Employees State Insurance Corporation
Model Hospital, Nacharam
Hyderabad, R.R.District.
Appellants/opposite parties
A N D
S.Jagadeeshwar S/o Markandeya
Aged about 28 years, Occ: Employee
R/o Plot No.53, Near Green Tank
Self-Finance Colony, NGO’s Colony
Vanasthalipuram, Hyderabad-70
Respondent/complainant
Counsel for the Appellants M/s B.G.Ravindra Reddy
Counsel for the Respondent Party in person
QUORUM :
HON’BLE SRI JUSTICE B.N.RAO, PRESIDENT
&
SRI PATIL VITHAL RAO, MEMBER
FRIDAY THE TWENTY FOURTH DAY OF MARCH
TWO THOUSAND SEVENTEEN
Oral Order : (per Hon’ble Sri Justice B.N.Rao Nalla, Hon’ble President)
***
This is an appeal preferred by the opposite parties against the order in C.C.No.200 of 2013 of the District Forum, Ranga Reddy dated 09.10.2014 directing the opposite parties to pay Rs.1,50,000/- towards compensation and costs.
2. The brief facts of the complaint as stated in the complaint are that the complainant’s father was a senior citizen who underwent cataract surgery on 30.07.2012 to his right eye in the opposite party no.1’ eye hospital by the opposite party no.2. After few days again the cataract surgery was done to the left eye of the complainant’s father by the opposite party no.2 and while discharged him on 03.08.2013 advised him to come for follow up. It is alleged in the complaint that the complainant’s father was unable to see, felt pain and oozing of tears in the right eye. He contacted the opposite party no.2 who told that the problem would be solved within few days. As his problem was unbearable the complainant’s father approached Mahalakshmi eye hospital where doctors told that the surgery was not done properly due to which right eye was completely damaged. It was due to the fault and negligence of the opposite parties, the complainant suffered loss of right eye vision.
3. The opposite parties resisted the case and contended that the complainant’s father was a patient of hypertension, diabetes mellitus and cerebro vascular accident. He was admitted in opposite party no.1 hospital on 23.07.2012 for right eye cataract surgery and the surgery was to be conducted on 24.07.2012. AS on that date the blood sugar levels were very high the surgery was postponed and he was referred to general physician to bring down sugar levels. After treatment when the sugar levels come down on 26.07.2012 he was discharged with an advise to continue medicines and come back on 30.;07.2012. On 31.07.2012 after conducting all the investigations surgery was done on the right eye of the complainant’s father. They denied the surgery to the left eye of the complainant’s father. ON 01.08.2012 when the bandage was removed and after examination it was revealed that conjunctive-mild congestion; cornea-sk+present; epithelial bullaes present periphery more; anterior chamber-air bubble filling half of AC; pupil round; IOL present in capsular bag; IOP-RE 34 mm of Hg. The patient was advised eye drops and anti-glaucoma medicines as his IOP was high. ON 02.08.2012 similar examination showed conjunctive-congestion reduced etc. On 03.08.2012 the blood sugar was 160 mg/dl and his eyes were normal and IOP was 20mm. As the patient had improved he was discharged after prescribing medicines of diabetes and also high hypertension. The symptoms of watering, burning sensation conjunctive congestion are mild complications of any ocular surgery which will decrease within a week. ON 08.08.2012 when the review was done vision improved to 6/36. The patient came for review on 15.09.2012, 26.09.2012, 03.10.2012 and his vision with glasses was 6/24. Though he was asked to come after 7 days, complainant did not report and went to Sri Mahalaxmi Eye Hospital on 02.11.2012. The opposite parties denied the treatment at Mahalaxmi Eye Hospital. As per Sec.64 of ESI Act 1948, the recipients should observe conditions and treatment suggested by Medical Officer. Complainant suppressed the treatment taken at Sarojini Devi Eye Hospital. The alleged surgery done on 10.04.2013 for glaucoma and the laser treatment for over one week by SD Hospital was also denied. As the all precautions were taken to conduct surgery in appropriate manner there is no deficieny nor medical negligence on their part and hence prayed for dismissal of the complaint.
4. The complainant in proof of his case filed his evidence affidavit and got Exs.A1 to A8. On the other hand on behalf of the opposite parties, Dr.Sunil Deshpande, the Medical Superintendent file his evidence affidavit and got Exs.B1 to B10.
5. The Dist. Forum after considering the evidence placed on record opined that there was medical negligence by not checking IOP after the surgery at all and allowed the complaint granting RS.1,50,000/- towards compensation besides costs.
6. Aggrieved by the said decision the opposite parties preferred this appeal contending that the Dist. Forum did not appreciate either the facts or law in correct perspective. In Exs. A1 to A8 nowhere it was mentioned that the operation was not done properly by the doctor. The cataract is quite different from glaucoma. Cataract is an eye condition in which the eye lens becomes progressively opaque resulting in blurred vision whereas glaucoma is an eye condition with increased pressured within the eye ball causing gradual loss of sight. The glaucoma is a disease which can only be controlled by continuous use of eye drops, medicines and periodic consultations. The cataract operation is done to the eye lens whereas glaucoma disease relates to the optic nerve. The loss of vision suffered by the patient can be due to uncontrolled diabetic mellitus systemic HTT and therefore he prayed that the appeal be allowed.
7. Both the parties have filed their respective written arguments.
8. The point that arises for consideration is whether there was any negligence on the part of appellants in conducting the surgery and treating the complaint?
9. The case of the complainant is that the complainant was GHMC outsource employee who is eligible for treatment at opposite party no.1 hospital for his family members. As his father had cataract he took his father to the opposite party no.1 where the opposite party no.2 performed cataract surgery on 30.07.2012 to his right eye. After the surgery the patient had complications such as, he was not able to see, felt pain and oozing of tears in his right eye. When the complainant’s father contacted the opposite partyno.2 he told that the problem would be solved gradually but when there was no improvement in his right eye he approached Malalakshmi Eye Hospital where it was revealed that his right eye was damaged and referred to Sarojini Devi Eye Hospital. In Sarojini Devi Eye Hospital the doctors, after conducting tests performed glaucoma surgery, laser treatment and now the complainant claimed compensation by filing this complaint.
10. On the other hand the opposite parties submitted that the complainant’s father was a patient of hypertension, diabetes mellitus and cerebro vascular accident. He was admitted in opposite party no.1 hospital on 23.07.2012 for right eye cataract surgery and as his sugar levels were high the surgery postponed and on 31.07.2012 after sugar level become normal the surgery was conducted. On 01.08.2012 when the bandage was removed and after examination it was revealed that conjunctive-mild congestion; cornea-sk+present; epithelial bullaes present periphery more; anterior chamber-air bubble filling half of AC; pupil round; IOL present in capsular bag; IOP-RE 34 mm of Hg. The patient was advised eye drops and anti-glaucoma medicines as his IOP was high. The patient came reviews on 15.09.2012, 26.09.2012, 03.10.2012 his vision improved to 6/36. Though he was asked to come after 7 days, complainant did not report and went to some other hospitals. The opposite parties submitted that as per Sec.64 of ESI Act 1948, the recipients should observe conditions and treatment suggested by Medical Officer. Since all the precautions were taken before and after the cataract surgery there was no deficiency nor medical negligence on their part.
11. The complainant in his written arguments submitted that his father sustained damage to the right eye due to the negligence of the opposite parties in performing the cataract surgery and that the District Forum after going through the evidence and record rightly observed that there was negligence.
12. The opposite parties submitted that in the follow-up reviews on 08.08.2012, 22.08.2012 and 10.10.2012 it was found that the complainants’ father vision improved to 6/36 and prescribed intraocular pressure lowering drugs. During cataract surgery the opposite party no.2 used special surgical gel called visco-elastics to help, protect important structures of eye during cataract surgery. Small quantity of this gel is retained in the eye after surgery. When this occurs, the drainage system of eye can become clogged causing the eye pressure to rise dramatically which is transient and benign treatment with pressuring lowering eye drops. The opposite parties further submitted that they did not record eye pressure as cornea was clear and clinically digital pressure was normal as there were no signs of increase in IOP in initial postoperative visits. High eye pressure usually resolves in the first week or second week of surgery with medication. The chances of increase in IOP is several times more in diabetics and hypertension compare to normal. The opposite parties submitted they stopped all drugs as the patient vision had improved to 6/24 and cornea was clear clinically digital pressure was normal and there was no signs of increase in IOP. During the last visit i.e., on 10.10.2012 i.e., 70 days following surgery his vision was 6/24 with no clinical signs of increase in IOP. The District Forum while referring to the documents Ex.A5 , discharge summary dated 03.08.2012 wherein it was mentioned the IOP pressure was normal i.e., 12 mm of Hg while in Ex.B1 dated 02.04.2012 the IOP was 14.6 and 15.9 mm of Hg. On 01.08.2012 the IOP was 34 mm of Hg and to that the doctor prescribed medicines and on 02.08.2012 the IOP was reduced to 24 mm of Hg., and on 03.08.2012 it was further reduced to 20 mm of Hg. In Ex.B10 the opposite party no.2 advised anti glaucoma medicines and asked to come for review after 10 days. The District Forum stated that the negligence started from 08.08.2012, 15.09.2012, 03.10.2012 and 10.10.2012 during the said dates the opposite parties did not check up the Intra Ocular Pressure due to which the complainant’s father lost his vision. If the opposite parties checked the IOP during the visits of the complainant’s father, the complainant’s father vision could not have been lost.
13. But if we go through Ex.A2 dated 22.08.2012 the opposite parties though not measured the IOP but they prescribed Timoblu eye drops, the anti-gluocoma medicine. Likewise, in the prescription of Sri Mahalaxmi Eye Hospital dated 02.11.2012 the doctors prescribed anti-glaucoma medicines. The doctors of Sri Mahalaxmi Eye Hospital nowhere mentioned that the treatment taken in the opposite parties hospital was improper and the doctors there could not manage glaucoma properly by not prescribing anti glaucoma medicines.
14. The complainant’s father visited several hospitals and took treatment. Leaving all those doctors the complainant had chosen to file complaint against the opposite parties alleging that they conducted faulty surgery. There is no proof or basis for stating so. We may state that the complainant except filing his affidavit no documentary evidence was filed in order to establish the same. The complainant did not let in any evidence to prove that the doctors in various hospitals opined that there was negligence in not managing the glaucoma and that due to not prescribing the anti-glaucoma medicines his eye was damaged. The opposite parties in their evidence affidavit stated that at the time of discharge on 03.08.2012, the patient was in normal condition in so far as IOP, diabetes and hypertension is concerned and advised to come for review on 08.08.2012. On 08.08.2012 the patient was present himself a review was conducted and his vision was improved to 6/36 and the patient was further advised review after one week. As per Ex.A2 the patient came for review on 22.08.2012 and on that day the opposite parties prescribed anti glaucoma drug. Exs. A3 and A4 show that the patient came for review on 26.09.2012 also. The dates on which the patient was prescribed anti glaucoma drugs after the operation were 03.08.2012 and 22.08.2012. Thereafter on 02.11.2012 the patient visited Sri Mahalaxmi Eye Hospital where the doctors also prescribed anti glaucoma drug. In between these dates there was a gap of one month and 10 days where the patient was not on anti-glaucoma medicine. It is contended that by the complainant that in Sri Mahalaxmi Hospital, the doctors brought down the IOP to 34 mm by 11.11.2012 and advised to consult Sarojini Devi Eye Hospital for further treatment. But Ex.A6 does not show that the patient was referred to S.D. Eye Hospital and also not prescribed any further line of treatment except prescribing medicines. It is also to be seen that the patient had taken treatment from Sarojini Devi Eye Hospital from 25.02.2013 to 26.06.2013 for glaucoma and retina problems. However, they have not found fault with the cataract operation conducted by the opposite parties. Ex.A8, S.D.Hosital record does not show any adverse findings regarding cataract surgery it merely recorded the history of the patient only. The pressure in the right eye at the time of discharge from the opposite parties hospital was normal.
15. The complainant’s father in Ex.A7 letter addressed complained to the opposite parties stating that due to not properly arranging the lens in correct angle in the right eye, the operation was failed resulting in loss of his vision. But in the said letter the complainant’s father nowhere stated that he lost his vision due to glaucoma. In complaint also no such allegation that due to glaucoma the complainant’s father lost his vision. Moreover, the complainant’s father was a known patient of diabetes mellitus hypertension and cerebro vascular accident leads to higher risk of complications after cataract surgery compared to non-diabetics the patients did not adhere to the medication properly. Therefore we do not agree that there was negligence on the part of the opposite parties in diagnosis and management of cataract surgery the opposite party no.2 has acted as per standard of practice and we do not find any deviation. There is no act of omission or commission by the opposite party no.2, hence no negligence.
16. At this juncture, it is important to note that the Hon’ble Supreme Court in Martin F.D Souza Vs. Mohd. Ishfaq reported in I (2009) CPJ 32 (SC) considered various aspects of medical negligence. We excerpt some of the passages from the said judgment for benefit.
34) The law, like medicine, is an inexact science. One cannot predict with certainty an outcome of many cases. It depends on the particular facts and circumstances of the case, and also the personal notions of the Judge concerned who is hearing the case. However, the broad and general legal principles relating to medical negligence need to be understood.
35) Before dealing with these principles two things have to be kept in mind :
(1) Judges are not experts in medical science, rather they are lay men. This itself often makes it somewhat difficult for them to decide cases relating to medical negligence. Moreover, Judges have usually to rely on testimonies of other doctors which may not necessarily in all cases be objective, since like in all professions and services, doctors too sometimes have a tendency to support their own colleagues who are charged with medical negligence. The testimony may also be difficult to understand, particularly in complicated medical matters, for a layman in medical matters like a Judge; and (2) A balance has to be struck in such cases. While doctors who cause death or agony due to medical negligence should certainly be penalized, it must also be remembered that like all professionals doctors too can make errors of judgment but if they are punished for this no doctor can practice his vocation with equanimity. Indiscriminate proceedings and decisions against doctors are counter productive and serve society no good. They inhibit the free exercise of judgment by a professional in a particular situation.
36) Keeping the above two notions in mind we may discuss the broad general principles relating to medical negligence.
General Principles Relating to Medical Negligence
37). As already stated above, the broad general principles of medical negligence have been laid down in the Supreme Court Judgment in Jacob Mathew vs. State of Punjab and Anr. However, these principles can be indicated briefly here :
38) The basic principle relating to medical negligence is known as the BOLAM Rule. This was laid down in the judgment of Justice McNair in Bolam vs. Friern Hospital Management Committee (1957) 1 WLR 582 as follows :
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 he exercises the ordinary skill of an ordinary competent man exercising that particular art.
Bolams test has been approved by the Supreme Court in Jacob Mathews case.
39) In Halsburys Laws of England the degree of skill and care required by a medical practitioner is stated as follows :
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, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men. Deviation from normal practice 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.
41. A medical practitioner is not liable to be held negligent 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. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. For instance, he would be liable if he leaves a surgical gauze inside the patient after an operation vide Achutrao Haribhau Khodwa & others vs. State of Maharashtra & others, AIR 1996 SC 2377 or operates on the wrong part of the body, and he would be also criminally liable if he operates on someone for removing an organ for illegitimate trade.
42. There is a tendency to confuse a reasonable person with an error free person. An error of judgment may or may not be negligent. It depends on the nature of the error.
43. It is not enough to show that there is a body of competent professional opinion which considers that the decision of the accused professional was a wrong decision, provided there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances. As Lord Clyde stated in Hunter vs. Hanley 1955 SLT 213 :
In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care.
47. Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse.
53. Judged by this standard, the professional may be held liable for negligence on the ground that he was not possessed of the requisite skill which he professes to have. Thus a doctor who has a qualification in Ayurvedic or Homeopathic medicine will be liable if he prescribes Allopathic treatment which causes some harm vide Poonam Verma vs. Ashwin Patel & Ors. (1996) 4 SCC
332. In Dr. Shiv Kumar Gautam vs. Alima, Revision Petition No.586 of 1999 decided on 10.10.2006, the National Consumer Commission held a homeopath liable for negligence for prescribing allopathic medicines and administering glucose drip and giving injections.
Finally it held Hence Courts/Consumer Fora should keep the above factors in mind when deciding cases related to medical negligence, and not take a view which would be in fact a disservice to the public. The decision of this Court in Indian Medical Association vs. V.P. Shantha (Supra) should not be understood to mean that doctors should be harassed merely because their treatment was unsuccessful or caused some mishap which was not necessarily due to negligence. In fact in the aforesaid decision it has been observed (vide para 22) :-
In the matter of professional liability professions differ from other occupations for the reason that professions operate in spheres where success cannot be achieved in every case and very often success or failure depends upon factors beyond the professional mans control.
The courts and Consumer Fora are not experts in medical science, and must not substitute their own views over that of specialists. It is true that the medical profession has to an extent become commercialized and there are many doctors who depart from their Hippocratic oath for their selfish ends of making money. However, the entire medical fraternity cannot be blamed or branded as lacking in integrity or competence just because of some bad apples.
It must be remembered that sometimes despite their best efforts the treatment of a doctor fails. For instance, sometimes despite the best effort of a surgeon, the patient dies. That does not mean that the doctor or the surgeon must be held to be guilty of medical negligence, unless there is some strong evidence to suggest that he is.
17. Coming to the facts there is no dispute that the doctors at opposite party no.1 are competent eye surgeons competent to conduct surgery on eyes. The complainant’s contention that the doctors while conducting the operation had implanted IOL not in proper way is ex-facie false. The doctor who performed the operation had categorically denied having implanted IOL not in proper way. The complainant could not establish that lens was implanted in wrong way due to which he lost his eye sight. On the other hand Ex. A6 and A8 shows there that there was no mention of any negligence in conducting cataract surgery. Obviously, he lost his eye sight as he himself did not take medication properly. For his own fault, he cannot impute negligence on the part of doctors and claim compensation. The Dist. Forum was not correct in stating that the opposite parties committed negligence in not measuring IOP whenever the patient visited the opposite parties hospital though they took all the postoperative care. On that score compensation could not have been awarded. The Dist. Forum did not appreciate the facts in correct perspective. It did not observe the pleadings of the complaint where the complainant alleged negligence in conducting the cataract surgery but not of glaucoma. The complainant did not examine any expert in order to allege that there was negligence on the part of opposite parties. The complainant undoubtedly lost his eye sight, however, opposite parties cannot be find fault for his plight for the loss of eye sight. We do not see any negligence on the part of opposite parties in this regard. Therefore the order of the Dist. Forum is liable to be set-aside.
In the result this is allowed setting aside the order of the Dist. Forum Dt. 09.10.2014 consequently the complaint is dismissed. However, in the circumstances of the case both parties are directed to bear their own costs.
PRESIDENT MEMBER
Dated: 24.03.2017
