: J U D G M E N T :
The brief fact of the case is that the complainant is a poor day labourer of a Jute Mill suffering from vision problem in his right eye since the month of February 2009. He went to E.S.I., Hospital at Kolkata on 20.02.2009. He was referred to OP No. 1 ESI Hospital, Kalyani for his treatment and he was treated by OP No. 2 Dr. B. Das. The complainant took admission in the Hospital (OP No. 1) on 21.12.2009 for the purpose of operation of right eye cataract. Operation was done by OP No. 2 on 30.12.2009 and he was discharged from the said Hospital on 04.01.10. After operation the problem of the complainant was not cured. He felt pain in his right eye.
He was referred to Regional Institute of ophthalmology (R.I.O), Kolkata, where the complainant was treated as an outdoor patient and then it was detected that cortical matter was present in his eye. It was opined at this institution on 25.02.2010 i.e., long after operation. The treatment was going on. He was referred to different E.S.I. Hospital to get treatment and ultimately on 30.07.12, doctor of Kamarhati E.S.I. Hospital declared him ‘blind on his right eye.’ Thereafter he went to Disha Eye Hospital. The doctor of said Hospital also noted ‘nil vision prognosis’. The left eye was also affected with cataract during this time.
On 14.01.13 M.O.-in-Charge of said Hospital detected that the complainant has almost lost his vision and categorically it was noted that very poor chance of visual recovery in right eye.
However, the complainant has got fit certificate on 14.03.13 with instruction of light jobs for his poor vision. He was compelled to take voluntary retirement before 4 years from the date of normal retirement and he has got only the amount of Provident Fund. There is a gross negligence and deficiency in service on the part of OPs due to loss of vision of right eye. So for getting proper relief, he knocked at the door of the Forum.
OPs contested this case by filing written version stating, inter alia, that the present petitioner does not come within the provision of the definition u/S 2(d)(ii) of Consumer Protection Act, 1986. It was admitted by OPs that the complainant took admission on 21.12.09 at about 2.50 pm at E.S.I. Hospital, Kalyani, Nadia for cataract operation of his right eye. Antibiotic eye drop was applied in right eye. His blood sugar, blood pressure were examined. After necessary examination, the right eye cataract operation was done on 30.12.09 with full care. The operation was done successfully. The cataract was successfully removed. Dressing of right eye was done by Dr. Sukanta Bhattacharya. The necessary drugs and medicines were given to the complainant / patient. The condition of right eye became very good. No infection was found. Finally he was discharged from said Hospital on 04.01.2010 at about 2.00 pm with an advice to take some medicines prescribed by OPs doctor and Hospital. He was also instructed to come after 7 days for post operation check-up, no irregularity was found. His vision of right eye became very clear. Necessary drugs and medicines were also given. He was again instructed to come for further check-up, but he never came to the Hospital. Ignoring the instruction of OPs doctor and Hospital he roamed at the different places and at the door of different doctors at his own risk. OPs doctor and Hospital categorically stated in their written version that for argument sake if any irregularity or negligence occurred either at the time of operation or post operation, the complainant / patient would lose his vision just within 4 to 7 days from the date of operation. So there is no negligence or deficiency in service on the part of OPs. Under such circumstances, the present petition is liable to be rejected with cost.
Now the Forum is to consider the following points:-
- Whether the complainant is to be treated as consumer or not as per
Consumer Protection Act 1986.
- Whether there is any gross negligence or error or mistake or deficiency in service on the part of OPs or not,
- Whether the complainant is entitled to get any relief as prayed for.
DECISION WITH REASONS
Point No. 1.
It should be the duty of the complainant / petitioner to come before the consumer in clean hand and it is the duty of the complainant to prove himself / herself as a consumer as per Consumer Protection Act, 1986. In instant case the certain portion of amount towards E.S.I. has been deducted from salary every month for the purpose of medical treatment of complainant. Annexure – 14(a), 14(b) and 14(c) are showing a clear picture wherein it is found that the certain portion of amount against ESI has been deducted from salary. So indirectly the complainant used to pay the consideration amount for his medical treatment. As per Sec. 2(1)(o) of the Consumer Protection Act, 1986, the OPs provide service to the complainant and they are service providers in the instant case. So as per Consumer Protection Act, 1986 the complainant and OPs (Hospital and doctor), the complainant is to be treated as the consumer as per Consumer Protection Act, 1986.
Thus, the point No. 1 is decided.
Point Nos. 2 & 3:-
In Laxman Balkrishna Joshi Case the Supreme Court held that a person (doctor) who holds himself / herself out ready to give medical advice & treatment impliedly undertakes that:-
- He is possessed of skill & knowledge for that purpose.
- He owes a duty of care and decide whether to undertake the case
- A duty of care in deciding what treatment to give
- A duty of care in the administration of that treatment.
A breach of any of these duties gives a right of action for negligence to the patient.
So a doctor owes to his/her patient “to bring to his task & reasonable degree of skill & knowledge” and “to exercise a reasonable degree of care.”
Again error of judgment on the part of a doctor, (e.g., wrong diagnosis) would tantamount to negligence if it is an error which would not have been made by a reasonably competent professional man acting with ordinary care. Very often in a claim for compensation arising out of medical negligence a plea is taken that it is bonafide mistake. This may be excusable under certain circumstances. But a mistake which would tantamount will not be pardoned.
AIR 2000 Madras 340 – Mrs. Arpana Dutta vs. Apollo Hospital Enterprise & Ors., it was held that doctrine of res ipsa loquitur squarely applies to facts. Concerned Hospitals & doctors both are liable to pay damages suffered by patient. Hospital cannot escape from liability merely by stating that there was no master & servant relationship between Hospital & surgeon who did the operation. Hon'ble Court also held that plaintiff patient undergoing second surgery i.e., correctional surgery plaintiff would be entitled to claim refund of amount paid to Hospital & concerned doctor due to guilty of negligence.
Now we try to discuss the matter on the basis of documents annexed herewith. As per Annexure – 3, it is admitted that the patient complainant having insurance No. 2524688 took admission for cataract surgery on 21.12.09 and he was discharged on 04.01.2010 from Kalyani Eye Hospital, Nadia. As per Annexure – 6, 7, 8 and 8(a) it is evident that the cataract surgery was done on 30.12.2009.
On 19.02.2010, complainant patient visited Hospital as OPD patient. It is for the first time to know that the cortical matter is present and the doctor advised him for cortical wash “tomorrow”, i.e., on 20.02.2010 which is clearly revealed from Annexure – 7, OPD Patient card dtd. 19.02.2010.
As per Annexure – 7, it is clear that the cortical matter (RE) has been washed on 20.02.2010. At this point let us see what is the view of Medical Journals.
As per Medical Journal, (Source – ocular surgery News U.S. Edition, April 25, 2008, Uday Devgan, M.O. F.ACS) after removing the cataract nucleus via phacoemulsification, the remaining lens cortical material needs to be gently removed from the capsular bag. A thorough cortical cleanup helps to ensure a clear capsule and visual axis, a quite eye with a low level of inflammation and prevention of Posterior capsular opacification (PCO). Once the nucleus is removed, the remaining lens cortical material must be thoroughly cleaned from the capsular bag. It is not acceptable to leave a significant amount of lens cortex in the eye at the end of cataract surgery because it will induce inflammation and may affect the patient’s vision and comfort level. The actual goal at the end of cortex removal is to have a clean and clear capsular bag. Doing a thorough cortical cleanup is instrumental in the success of eye surgery. Retained lens material excites an inflammatory reaction in the eye. In cases with minimal cortical matter, the anterior segment inflammation can be controlled medically with topical steroids and cycloplegics until the lens material is absorbed. In cases with significant cortical residence, surgical removal is essential as they can cause significant inflammation with raised IOP i.e., intraocular pressure and can also move centrally to obstruct the visual axis.
So from the above analysis, it is clearly evident that the OP 2 doctor has failed to thorough clean up the cortical matter in the right eye after cataract surgery and for this reason on 20.02.2010, the cortical matter was further washed. Under such situation there is no hesitation to hold that the thorough cortical clean up also includes the successful cataract surgery and as per medical view we also hold that lack of thorough clear washing of cortical matter affects the clear capsule and visual axis of the complainant and posterior capsular opacification ( i.e., PCO) has been created or raised. Now we turn into another important document annexed herewith.
The doctor, Regional Institute of Ophthalmology, Medical College, Kolkata – 73 on 13.08.2010 (Annexure – 8f, 8g) advised for YAG capsulotomy in right eye and YAG capsulotomy was done on 23.08.2010 and 06.09.2010 in E.S.I. Hospital which is clearly revealed from prescription of E.S.I. Hospital, Kalyani, Nadia (Annexure – 8h). The YAG capsulotomy was also done on 06.09.2011 which is clearly revealed from prescription dtd. 06.02.2013 (Annexure – 12).
At this point we try to know that on which situation the YAG capsulotomy is necessary and, what is the meaning of PCO and what is the view of medical journal in this respect.
As per another medical Journal (Source : CET Continuing Education and Training, Sponsored by ACADEMY FOR EYE CARE EXCELLENCE), The complications can occur at one month after surgery and beyond. Following cataract surgery, most Patients continue to attend for a regular eye examination with their optometrist. It is at these regular check ups that Patients who have significant PCO (Posterior Capsular Opacification) tend to complain of similar symptoms to that of the initial cataract, i.e., gradual deterioration in vision and difficulty with glare.
PCO is the most common post operative complication of cataract surgery with a prevalence of over 40% within 5 years of cataract surgery. It is a multifactorial problem related to patient factors such as age, surgical factors and IOL design features. It is caused by residual lens epithelial cells, which are left behind after extra capsular cataract surgery. These cells can eventually proliferate on the capsular membrane to form Elschnig’s pearls, which then migrate to obscure the visual axis. Residual lens epithelial cells around the edge of the anterior capsular surface also undergo fibrosis and proliferation, which can be considered to be a normal wound healing response following surgery. But fibrosis of lens epithelial cells also occurs when they come into contact with IOL implant. This fibrosis leads to a gradual deterioration in vision and could potentially cause decentration of the IOL implant where PCO affects the patient’s vision, treatment by YAG lesser capsulotomy is generally carried out. The procedure is much less traumatic for the patient than cataract surgery and is usually done as an outpatient procedure. The procedure is painless and is carried out with a dilated pupil.
It is admitted that YAG caps have been done on several occasions. It is also now clear that YAG caps is generally carried out when PCO affects the patient’s vision. It is also clear that when the cortical matter is not cleaned up thoroughly, the inflammation of eye as well as PCO i.e., posterior capsular opactification has been raised / created. It is also clear that when PCO affects the eye, gradual deterioration in vision would be occurred in future. In this instant case as per Annexure – 11f, on 16.07.12 doctor (E.S.I. Hospital, Kalyani, Nadia) also opined that “there is no possibility of visual recovery in RE”. As per Annexure – 10 on 30.07.12 doctor (E.S.I. Hospital, Kalyani, Nadia) declared the complainant as “blind in RE” as we carefully perused that the doctor endorsed “painful blind eye (RE)” in left side of the prescription. As per Annexure – 11 on 14.01.2013, doctor (E.S.I. Hospital, Kalyani, Nadia) opined “very poor chance of visual recovery in RE” and on 21.01.2013 doctor (E.S.I. Hospital, Kalyani, Nadia) also opined “very very poor chance of visual recovery in RE”.
OPs argued that Dr. Bhattacharya is a necessary party in this case along with other E.S.I. Hospitals who rendered service to the complainant. In this regard the view of the Forum is that when the operation was done by OP No 2, Dr. B. Das, in such situation the whole responsibility of the said operation should be taken by OP No. 2. The doctor (OP No. 2) cannot escape from his liability by taking the plea of necessary party of Dr. Bhattacharya. Moreover, order No. 1, rule 9 of Code of Civil Procedure no suit shall be defeated by reason of the misjoinder or nonjoinder of the parties, and the court may in every suit deal with the manner in controversy so far as regards the right and interest of the parties actually before it. OPs argued that at the time of post-operative check-up no irregularity was found. The vision of RE was very clear. Complainant was also advised for further check-up but he never came to Hospital. Regarding this argument on behalf of OPs we hold that after cataract operation complainant was discharged from ESI Hospital on 04.01.2010 . As per Annexure – 7 dtd. 19.02.10, it was found that cortical matter was present and it was washed on 20.02.2010. From the said document, it is clear that after operation, irregularity was found. In reply Dr. B. Das (DW 1) stated that before operation the vision of patient was at RE less than 6/60 and LE 6/6 on 20.02.09. After operation the vision of patient’s RE was improved to 6/36 as noted in RIO on 19.02.10 as per Annexure – 7. Be it mentioned here that as per Annexure – 7, it is also true that the cortical matter was present and correctional treatment, i.e., washing of cortical matter was done due to gross error of Dr. B. Das (OP 2 herein). In this regard we try to apply the famous case law i.e., AIR 2000 Madras 340 – Mrs. Arpana Dutta vs. Apollo Hospital Enterprise & Ors. earlier discussed. So as per this case law in the instant case washing of cortical matter at the time of post-operative check-up is correctional surgery / treatment causing gross negligence on the part of the OP doctor (OP No. 2). Though the vision of RE was improved after operation, yet due to existence / presence of cortical matter the RE / pupil of RE was gradually affected as per view of medical journal mentioned earlier in details, causing gross negligence / error / mistake on the part of the OP No. 2. As per Annexure – 1 to 8, 5(a), 8(a) to 8(l), 9(a) to 9(n), 11, 11(a) to 11(f), 10, 10(a) to 10(c), 12, 12(a) and 13(a) prescriptions of ESI Hospital, it is clear to us that the complainant regularly went to ESI Hospital & met with doctor for his treatment before or after operation. It is also clear that after operation, continuously as per advice of doctor, he went to ESI Hospital and met with medical officer of said Hospital. There is no long gap or interval during this treatment and during the post-operative treatment the doctor declared him as blind and the hopeless complainant has lost his vision in RE forever. As per argument on behalf of OPs we hold that the complainant patient approached to different place or different doctors for his recovery of vision. It is his exclusive right as per article 21 and 14 of Indian Constitution for getting his medical relief/treatment/consultation etc.
At the time of hearing, ld. counsel for OPs submitted AIR 2015 (October part), Journal 187 which shows a short analysis of cases on medical negligence. This journal provides clear discussion regarding doctor patient relationship, consent, care, cautions and liability in Medical acts. It also provides some pertinent famous ruling regarding medical negligence which are analyzed below:-
1). Negligence is, indeed, breach of a duty caused by omission to do something which a reasonable man, guided by those consideration which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill by which neglect the plaintiff has suffered injury to his person or property (Ratanlal & Dhirajlal, the Law of Torts). The Supreme Court in India in Syed Akbar vs. State of Karnataka (AIR 1979 SC 1848 held that if negligence is an essential ingredient to the offence, negligence to be established by the prosecution must be culpable or gross and not negligence merely based on an error or judgment. A doctor should not guarantee cure to his patient. He could always bear in mind the importance of preserving a human life from birth till death. The doctor is bound to provide medical aid as long as the patient needs that.
2). In Bolam vs. Friern Hospital Management Committee 1957 (2) All ER 118, the Hon'ble Court held that a doctor is not guilty of negligence if he has acted in accordance with a practice so accepted by a responsible body of medical men skill in that particular art. But the Bolam case is not conclusive to reach the proper discussion as Bolitho is justifiable and Bolam is defensible. The result of Bolitho is that the Judge has to give a reasoned decision and reasoned explanation in the field of expert opinions / medical journals / medical view etc. This brings the balance between both sides i.e., doctor and the patients. Be it mentioned here that the judge of a court is the expert of all expert.
3). In AIR 1969 SC 128, the Hon'ble Supreme Court has held that the complainant must prove the allegation against the doctor by citing the best evidence available in medical science and or by presenting expert opinion.
In the instant case the Ld. Counsel for complainant has produced the medical journal for supporting / proving his case discussed earlier.
4). In Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee (2009) 9 SCC 221 held that the provision of evidence Act are not applicable and the fora under the C.P. Act are to follow the principle of natural justice only.
5). In Jacob Mathew vs. State of Punjab and another (2005) 6 SCC, Hon'ble Court held that there is a clear view regarding distinction between degree of negligence in criminal law and civil law. Simple lack of care constitutes civil liability comes within the purview of Consumer Protection Act, 1986, whereas high degree of negligence or gross negligence or recklessness by doctor constitutes criminal liability which comes within the purview 304 A IPC.
6). In V.P. Santha vs. Indian Medical Association, the Hon'ble Supreme Court held two main points:-
a) in case of simple case expert evidence is not required.
b) in complicated case expert evidence is required.
Ld. Counsels for OPs have cited the case laws only which are discussed above but the OPs neither filed any expert evidence nor produced any medical journal regarding eye surgery for their defence. There is no hesitation to hold that the OP 2, doctor has failed to exercise ordinary degree of skill and for such reason the cortical matter was present in RE which is clearly proved by citing the medical journal on behalf of complainant. As per our view there is no necessary to produce any expert evidence as by way of principle of res ipso loquitor, the complainant is able to prove his case successfully. There is a clear gross negligence / error /mistake on the part of the OP doctor. Actually, in conclusion we say that the view of cited case laws mentioned above goes against OP 2, doctor as there is a clear omission or error on the part of Dr. B. Das, OP No. 2 herein in the instant case which constitutes the clear case of negligence on his part.
Further we hold that OP No. 1 is not directly connected with the said operation. Failure to maintain equipment in proper working condition constitutes negligence. In case of damage occurring to a patient due to absence / non working equipment the Hospital / Superintendent of Hospital can be held liable. But in the instant case no such type of allegation is proved against the said OP No 1, Superintendent of E.S.I. Hospital, Kalyani, Nadia. So the complainant is not entitled to get any relief as against OP no 1. There is no gross negligence on the part of OP No. 1. The complainant is only entitled to get relief as against OP No. 2, Dr. B. Das.
It is true that due to loss of Right Eye the complainant was compelled to retire from his job and no doubt he has suffered a great financial loss. So as per our view, the complainant is entitled to get compensation from OP No. 2, doctor. So the case succeeds.
Hence,
Ordered,
That the case CC/2014/105 be and the same is allowed on contest against OP No. 2, Dr. B. Das with cost of Rs. 10,000/- and dismissed on contest against OP No. 1, without cost.
The OP No. 2, Dr. B. Das is hereby directed to pay Rs. 40,000/- towards operation cost plus Rs. 10,000/- towards litigation cost plus Rs. 1,00,000/- towards compensation i.e., total of Rs. 1,50,000/- to complainant within 40 days from the date of order, i.d., interest @ 10% pa shall be charged upon the awarded amount till full realization and OP No. 2 is also bound to pay Rs. 50/- per day in Consumer Welfare Fund / Legal Aid Fund till full payment.
Let the copy of this order be supplied to the parties free of cost.
