DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 144
C.C. CASE NO. 253 OF 2015
DATE OF FILING: 2.6.2015 DATE OF JUDGEMENT: 6.11. 2019
Present : President : Ananta Kumar Kapri
Members : Jhunu Prasad & Jagadish Chandra Barman
COMPLAINANT : Morjina Bibi, wife of Akhirali Molla, Vill-Kajdia, P.O Bodra, P.S Bhangore, Dist. South 24-Parganas, Pin-743502.
O.P/O.Ps : 1. SHIS Eye Care Hospital, Vill, P.O + P.S Bhangore, Dist. South 24-Parganas, Pin-743502.
2. Dr. Aniado Mondal
3. Dr. D.D Roy, both are permanently practicing as Physician of SHIS Eye Care Hospital at Vill, P.O + P.S Bhangore, Dist. South 24-Parganas, Pin-743502.
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JUDGMENT
Sri Ananta Kumar Kapri, President
Alleging deficiency in service on the part of the O.Ps i.e the hospital and the treating doctors, the complainant has filed the instant case under section 12, C.P Act, 1986 against the O.Ps.
Facts leading to the filing of the instant case may be epitomized as follows.
October 4, 2014. This day the complainant approached O.P-1 hospital , having experienced unbearable pain in her right eye. There O.P nos. 2 and 3 examined her and diagnosed that the complainant was suffering from a rare disease i.e Acanthamoeba Keratitis (A.K) , which is caused by the invasion of amoeba in the cornea of right eye. A hand-made solution namely Chlorhexidine, prepared by the doctors, was given to the patient with direction to apply the same at every half an hour interval. The complainant followed the direction. But, the result was otherwise. She felt unbearable pain and burn in her right eye and her right eye sight started gradually deteriorating. She again made visit to the O.P hospital on 5.12.2014 and the doctors i.e O.P nos. 2 and 3 prescribed some new medicines for the complainant. These medicines were also used by the complainant. But the sign of improvement was a far cry. She again visited the hospital on 10.12.2014. But, the hospital and it6s doctors failed to improve the condition of the patient. Disappointed, the complainant went to Regional Institute of Ophthalmology , Calcutta for treatment. There, the doctors diagnosed that the complainant started losing her vision due to sloughy corneal ulcer following chemical injury by Chlorhexidine mouth wash. The Institute advised the complainant to undergo eye surgery to replace her right eye with an artificial one as her eyeball was badly damaged. The complainant has suffered irreparable loss due to gross negligence on the part of the O.P hospital and its doctors and, therefore, she has filed the instant case ,praying for compensation of Rs.15 lac against the O.Ps.
The O.Ps have been contesting the case by filing written versions of their statements separately. The defense case made out in their written statements is that the patient was seen in OPD of O.P-1 hospital on 4.12.2014 for her complaint of pain in right eye , watering and etching. O.P-2 diagnosed the case as one of Acanthamoeba Keratitis (A.K) . She was prescribed medicines, eye drop along with Chlorhexidine , an ophthalmic solution prepared by the O.P-2. The next day i.e on 5.12.2014 when the patient i.e the complainant came back to O.P-1 hospital, it is O.P-3 who examined her and prescribed tablet-Combiflam , Tab-Rantac, one tablet twice daily and advised for review after 7 days. The patient again approached the hospital with pain in her right eye and this time O.P-2 prescribed medicines and asked her to come back to the hospital after 7 days for review. But the patient did not come back. Thereafter, she went elsewhere for treatment . There is nothing wrong in the treatment rendered by them to the complainant and the treatment was done properly in accordance with the standard guidelines. There is no medical negligence caused by them and as such there is no deficiency in service as well on their part in so far as the treatment of the complainant is concerned.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Are the O.Ps guilty of medical negligence and deficiency in service as alleged by the complainant?
- Is the complainant entitled to get relief of reliefs as prayed for?
EVIDENCE OF THE PARTIES
Both the parties have led their evidence on affidavit which are kept in the record. Questionnaires, replies and BNAs filed by the parties are also kept in the record after consideration.
DECISION WITH REASONS
Point no.1 & 2 :
Already heard the submissions of Ld. Lawyers, appearing for both the parties . Perused the petition of complaint, written versions, the expert report and also all other medical papers kept in the record. Considered all these.
We know very well that there are 3 ingredients of negligence. They are:- “Duty”, “Breach of duty” and “Resulting damage”. Now , we have to see how far the complainant has been able to establish these 3 ingredients and if the complainant is found successful to fulfill these ingredients of negligence, she will be entitled to the relief as prayed for by her.
It is admitted fact that the complainant approached O.P-1 hospital and that she was treated by the doctors i.e O.P nos. 2 and 3 for her complaint of right eye . O.P nos. 2 and 3 have admitted that the complainant was suffering from unbearable pain,redness and burning sensation in her right eye and that they rendered treatment to her for those complaints of her right eye. A hand-made solution namely “Chlorhexidine” manufactured by the O.P-2 was given to the complainant along with other medicines with direction to apply the same externally in the eye at every half an hour interval. This is also admitted by the O.P doctors. After use of this hand-made solution the condition of the patient exacerbated and therefore, she had to approach again to the O.P doctors on 5.12.2014.
It is true that the hand-made solution is one of the medicines for treatment of Acanthamoeba Keratitis (A.K) which is a rare infection of the eye and which may destroy the vision of the eye completely. We may very well imagine how the disease is serious. In case of a serious disease, the care the physician should take should also be of greater degree. The O.P doctors should have diagnosed first whether the complainant suffered from A.K disease or not. But, without making any diagnosis, they have prescribed Chlorhexidine for the complainant. The copies of prescriptions dated 4.12.2014, 5.12.2014 and 10.12.2014 issued by the O.P doctors have been filed on record by the complainant. Nowhere in those prescriptions is mentioned anything about the diagnosis of the complainant.
It is available from Internet Wikipedia titled ‘Acanthamoeba Keratitis (A.K)’that there are some symptoms which go a long way to indicate the presence of A.K disease. The symptoms are 1) decreased or blurrid vision, 2) Sensitivity to light, 3) Redness of the eye and 4) Pain out of proportion.
In diagnosis of the said disease, the physicians are required to perform some tests namely 1) Corneal Scraping, culture and cytology , 2) Polymerase chain reaction and 3) Confocal microscopy.
In the instant case, no diagnosis has been made by the O.P doctors to ascertain whether the complainant suffered from A.K disease or not. On perusal of the 3 prescriptions of O.P-1 hospital, it is found that there is even no noting of the symptoms the complainant suffered at the relevant time. The doctors are bound to record the symptoms of the patient on the prescription. Non-recording of the symptoms of the complainant on the prescription clearly indicates how much careless the treating doctors were. The doctors should have also mentioned on the prescriptions any kind of tests they suggested the complainant to undergo. There is no such mention of any kind of tests on the prescriptions of the doctors. The prescriptions of the doctors do itself manifest that they were gross negligent and careless in the matter of treatment of the complainant. They prescribed home-made solution for the complainant with direction to apply the same in her right eye frequently at an interval of half an hour. The said solution is a medicine for A.K disease. But before prescribing that solution, the doctors should have diagnosed whether the complainant suffered from A.K disease or not. Without diagnosis of the said disease, prescription with direction to the complainant to use home-made solution is nothing but gross carelessness and gross negligence of the treating doctors i.e O.P nos. 2 and 3. It is certainly breach of duty of the doctors. The doctors have a bounden duty to take utmost care of the patient while rendering treatment to his or her. But, O.P nos. 2 and 3 have failed to discharge their duty; they have acted like a layman and have thus caused breach of their duty.
That a breach of duty has been caused on the part of the treating doctors i.e O.P nos. 2 and 3 is also established by the expert report. The case was referred to SSKM hospital with a view to obtaining expert opinion and the said report has been filed by the said hospital. The report is kept in the record. The report also points out that no diagnosis has been made by the O.P hospital and its doctors . The relevant point of the report i.e “Answer to question no.1” reads thus,
“Treatment sheets and/or prescriptions dated 4.12.2014, 5.12.2014 and 10.12.2014 of O.P-1 hospital were available in the documents supplied. No note of clinical findings of the right eye or any investigation reports like micro-biological work-up report were available. In this condition, diagnosis of Acanthamoeba Keratitis (A.K) cannot be made”.
The above report also points out that O.P doctors prescribed home-made solution i.e Chlorhexidine drop without making necessary diagnosis.
Now about the question, as to whether the complainant has suffered any damage ,resulting from breach of duty by the O.P doctors. In the expert report it has been pointed out that hand-made solution may be or may not be “most likely cause of further deterioration of right eye sight of the complainant , vide point no.7 of the report. In point no.8 of the report it is stated , “As every drug may have some side effects in some individuals, it cannot be commented with certainty regarding possibility of damage….”.
From the observation of the expert report as referred to above, it is found that the experts are unable to say with greater degree of certainty as to whether the application of home-made solution to the right eye of the complainant has led to any further deterioration of her eye or not. But, it is admitted by the experts that every medicine has a side effect. It is the version of the complainant that after the use of that home-made solution, her condition further deteriorated. She felt unbearable pain in her right eye and, therefore, she rushed to the O.P hospital on the next day i.e on 5.12.2014. She approached the said hospital on 10.12.2014. All these are substantiated by the prescriptions issued by the O.P-1 hospital itself. .
Now, we have to see whether the complainant has been able to prove that the application of hand-made solution has led to further deterioration of her eye condition. We know very well that the standard of proof is quite different from that of criminal case. In a criminal case, proof beyond reasonable doubt is always required; whereas in a civil case we give stress on preponderance of probability. Applying the theory of preponderance of probability, we do hold that there is likelihood of further deterioration of the right eye of the complainant after application of home-made solution, viz., chlorohexindin without any diagnosis of A.K disease.
That apart, here is a discharge certificate issued by the Regional Institute of Ophthalmology (RIO) Kolkata, where the complainant was treated. There is clear noting on that discharge certificate as such, “Sloughy Corneal Ulcer following chemical injury by the Chlorhexidine mouth wash”. The discharge certificate also goes a long way to establish that there took place corneal ulcer in the right eye of the complainant as a result of chemical injury following application of Chlorhexidine mouth wash. The expert report ,which is kept in the record ,has indicated that the doctors at RIO, MCH, Kolkata, also tried to protect the eye with a temporary measure “Tarrsorraphy”. So, from this report also, it is clear that the complainant has suffered much damage in her right eye for the protection of which temporary measure like ‘Tarrsorraphy’ was adopted by the doctors at RIO MCH, Kolkata. From all these materials and evidences ,it stands clearly established that the complainant suffered damage to her right eye due to application of an hand-made solution by the O.P doctors.
Now, it is found that 3 ingredients of negligence have been fulfilled and, therefore, the complainant is deemed entitled to relief of compensation and the relief is awarded accordingly as hereunder. O.P-1 hospital is also held vicariously liable for negligence of its doctors.
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against the O.Ps with a cost of Rs.10,000/-.
The O.Ps, who shall remain jointly and severally liable to the complainant, are directed to pay a compensation of Rs.3 lacs to the complainant within a month of this order, failing which the compensation amount and cost amount will bear interest @10% p.a till full realization thereof.
Registrar-In-Charge of this Forum is directed to send a certified copy of the judgment free of cost at once to the parties concerned by speed post.
President
I / We agree
Member
Dictated and corrected by me
President
