BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION:AT HYDERABAD.
C.C. No.45 of 2013
Between:
Nadiminiti Narasimha Rao S/o late Chitti Sastri
Aged about 72 years, Occ: Retired Employee
R/o H.No.9-232/8, S.2, Ganesh Residency
Behind Union Bank of India, Narsimhanagar
Gopalapatnam, Visakhapatnam-530027
*** Complainant
A N D
The Chief Medical Director
L.V.Prasad Eye Institute,
Kallam Anji Reddy Campums
L.V.Prasad Marg, Banjara Hills
Hyderabad-500034
*** Opposite Parties
Counsel for the complainant: Sri L.Venugopal
Counsel for the Opposite Party M/s Mahmood & Co.,
QUORUM :
HON’BLE SRI JUSTICE B.N.RAO NALLA, PRESIDENT
&
SRI PATIL VITHAL RAO, MEMBER
WEDNESDAY THE TWELFTH DAY OF JULY
TWO THOUSAND SEVENTEEN
Oral Order : (per Hon’ble Sri Justice B.N.Rao Nalla, Hon’ble President)
***
This is a complaint filed under section 17 of the Consumer Protection Act, 1986 by the Complainant to direct the opposite party to pay Rs.60 lakhs towards compensation towards the expenses incurred for the education, training, welfare and hospital expenses of the son of the complainant; to direct the opposite party to pay Rs.6 lakhs towards medical expenses incurred; to pay Rs.15,00,000/- towards compensation mental agony suffered due to the death of his late youngest son.
2. The case, in brief, as made out in the complaint is that the complainant was blessed with three sons. His youngest son was Nadiminti Nageshwara Rao aged about 35 years approached the opposite party on 19.08.2011 with a problem of outward deviation of left eye and had a complaint of painful eye movements’ horizontal and vertical double vision. The doctor Amit Gupta of the opposite party examined him and advised to take MRI Brain with Contrast and MRI Orbit with contrast. After the tests it was found that the said Nageshwara Rao was having a problem of “ Focal Hyper intense lesion in left cavernous sinus area. An impression of Tolosa Hunt Syndrome was made. The doctor at the opposite party after seeing the test report advised the patient to visit the hospital on 27.08.2011. On 27.08.2011 the doctors at opposite party prescribed tab Wysolone 60 mg 2 times per day, Tab Rantidine 150 mf 2 times per day, Cap Shelcal 500 mg at bed time and Tab Combiflam 3 times per day for one week and advised to come on 10.09.2011. On 10.09.2011 the doctors at opposite party hospital advised him to continue the same medicines and treatment as prescribed on 27.08.2011 for another period of one month. After one month i.e., on 15.10.2011 the patient came to the hospital and the intraocular pressure was increased to abnormal condition and was referred to glaucoma consultation. Thereafter gradually the condition of the patient became critical and most of the body organ systems were failed and was admitted in Care Hospital. In Care Hospital it was diagnosed to have Bacterial Meningitis with Hypernatremia and they started on IV antibiotics and subsequently the patient developed respiratory failure secondary to ARDS of which the hospital authorities put on mechanical ventilator and also Bronco Alveolar lavage. It shows strongyloidosis larva and complete picture was suggestive cause for disseminated infection was due to immunosuppression secondary to Cortico Steroid intake and also the Care Hospital authorities stated that the patient requires full ventilator and Vasopressor support. While the treatment was in progress on 16.11.2011 the patient died in the Care Hospital.
3. The case of the complainant is that the possible cause of death of his youngest son’s was attributed by Care Hospital was due to wrong administration of Cortico steroid medicines by the opposite party. Questioning the wrong treatment, the complainant got issued legal notice to the opposite party but it failed to give any reply. Hence, the complaint with the prayer as stated in paragraph no.1 supra.
4. Opposite party in its written version contending that the complainant’s son Nadiminti Nageswara Rao ( hereinafter called ‘ the deceased’ ) visited the opposite party hospital on 19.08.2011 with a complaint of outward deviation of left eye. After investigation it was diagnosed as the deceased had been suffering Tolosa-Hunt Syndrome. On examination, the complainant’s son visual acuity was 20/20 in the right eye and 20/20 with -0.75Dcyl@ 900 in the left eye. Intraocular pressure was 14 and 17 mm Hg in the right eye and left eye respectively. The deceased had left exotropia of 30 prism diopters with 14 prism diopters left hyperopia. Adduction and depression was limited in the left eye. Anterior segment was unremarkable in both eyes. Fundus was within normal in both eyes. Based on the aforesaid clinical findings a diagnosis of simple myopic astigmatism in the left eye, emmetropia in the right eye and 3rd nerve palsy in the left eye was made. The deceased was explained about the problem and he was instructed to get MRI Brain and to review with report. After undergoing MRI brain it was observed that there was focal hyper intense lesion in left cavernous sinus area. An impression of Tolosa Hunt syndrome was made. The deceased was advised to use Tab. Wysolone 60 mg once a day, Tab. Rantac 150 mg two times a day, Cap Shelcal 500 mg at bed time, Tab. Combiflam 3 times a day. He was asked to come for review after two weeks. The procedure adopted by the opposite party in treating the deceased was in accordance with the standard procedure prescribed for treating the Tolosa-Hunt Syndrome.
5. The deceased was seen again on 10.09.2011 and on that his vision was 20/20 and N6 in both eyes. Intraocular pressure was 14 and 16 mm Hg in the right eye and left eye respectively. Anterior segment was unremarkable in both eyes. Ocular movements were limited in the left eye. He was advised to continue with the same treatment. He was asked to review after one month. On 15.10.2011 the deceased vision was 20/20 and N6 in both eyes. Intraocular pressure was 40 and 30 mm of Hg in the right eye and left eye respectively. Anterior segment was unremarkable in both eyes. He was advised to use tab. Wysolone in tapering dose, Tab. Rantac 150 mg 2 times a day, Cap. Shelcal 500 mg at bed time and advised review after one week. But he never came up for his follow up visit as per the medical advice. During the follow-ups the deceased never complained of any problem on any of the follow-up treatments.
6. It is denied that due to the wrong administration of steroids by the opposite party the deceased died. The deceased was administered with oral steroids which are the first line treatment for the condition Tolosa-Hunt Syndrome. Drugs were prescribed only after complete examination. The opposite party is one of the most renowned eye institute in the world. The standard of care of the opposite party is globally acknowledged. It is the world class medical eye institute in the country. In the entire complaint there is not even a whisper of the word ‘negligence’. The complaint is devoid of merits and is untenable in law and on facts and hence prayed for dismissal of the complaint with exemplary costs.
7. The complainant in proof of his case filed his affidavit evidence and filed Exs. A1 to A21. Refuting his evidence, affidavit evidence of Dr.Rajanarayanan, In-charge of Patient Care Services of the Opposite Party filed and Exs. B1 to B3 were marked.
8. The counsel for the Complainant and the opposite party had advanced their arguments reiterating the contents of the complaint and the written version in addition to filing written arguments on behalf of Complainant and the opposite party Heard both sides.
9. The points that arise for consideration are :
1) Whether there is negligence or deficiency in service on the part of the opposite parties as alleged in the complaint;
2) If so to what relief the complainant is entitled;
10. The case of the complainant is that his youngest son N.Nageswara Rao aged about 35 years visited the opposite party hospital on 19.08.2011 with a complaint of outward deviation of left eye and had painful eye movements horizontal and vertical double vision. The deceased was examined by Dr.Amit Gupta and advised to take MRI Brain Scan, T-orbit with contrast and some other medical tests. On 27.08.2011 the deceased shown the reports of MRI Brain and other reports to the doctor at opposite party hospital who after seeing the reports informed the deceased that he had been suffering from Tolosa-Hunt Syndrome with some other eye problems and prescribed Tab. Wysolone 60 mg 2 times per day till next visit, Tab. Ranitide 150 mg 2 times per day and Shelcal 500 mg one tab. per day till next visit. On 10.09.2011 again the deceased visited the opposite party hospital and the doctors at opposite party hospital directed him to use same medicine till review after one month. On 15.10.2011 the deceased visited the opposite party hospital and the doctors at the hospital advised the medicines Wysolene 80/60/40/30 tapering dosages, Rantac 150, and Shelcal 400 mg and advised to consult Glaucoma consultant. Dr.Rohit Khanna prescribed tab. Diamox ½ tablet daily upto 7 days and advised review after one week. Thereafter the deceased’s health condition deteriorated and when the condition became serious on 23.10.2011 the deceased was taken to Care Hospital where after doing many tests asked to come after one week. On 31.10.2011 the deceased was admitted in Care Hospital in a critical condition with complaints of vomiting, loose stool, diffuse pain abdomen etc. The doctors at Care Hospital after diagnosing the condition of the deceased stated that he had been suffering with bacterial meningitis with hypernatremia and started IV antibiotics. During the next few days of hospital stay the deceased developed respiratory failure secondary to ARDS for which he was put on mechanical ventilator. Finally on 16.11.2011 at 6.10 p.m. the deceased son of the complainant died due to multi organ failure and cardiac arrest. The doctors at Care Hospital stated the cause of death as due to immunosuppression secondary to cortico steroid intake.
11. On the other hand the case of the opposite party is that on 19.08.2011 the complainant’s son Nadiminiti Nageswara Rao came to the opposite party with complaint of outward deviation of left eye. After examination by Dr.Amit Gupta, he was advised to get MRI Brain based on the symptoms and signs presented by the deceased. MRI findings revealed that third nerve palsy was due to diagnosis of Tolosa Hunt Syndrome. He was asked to visit the opposite party on 27.08.2011 and on that date when the patient visited the opposite party the doctors at opposite party hospital basing on the MRI report prescribed Wysolone 60 mg twice a day, Tab. Rantac 150 mg 2 times a day, Cap Shelcal 500 mg at bed time. The patient was asked to come for review after two weeks. The patient when examined on 10.09.2011 never complained of any problem and was responded well to the plan of treatment as per the international standard of treatment. The patient was responded to the steroid. The deceased was explained about the side effects and after taking his consent on the consent form the treatment was started. On 15.10.2011 the opposite party detected high intra ocular pressures possibly due to steroid and on the same day the complainant’s son was seen by the senior glaucoma consultant Dr.Rohit Khanna and he was prescribed Tab. Diamox ½ for one week. He was asked to come for a review after one week or as and when required. Since the patient had completely recovered for his eye problem as is evident from the medical record as no pain and no double vision, the deceased was told to reduce the steroids by tapering and stop. There was no negligence on the part of the opposite party.
12. Admittedly, the whole case hinges and depends entirely on issue related to administration and dosage of Wysolene. The learned counsel for the complainant also produced some web extract and explained with its help as to what is Tolosa Hunt Syndrome. He also explained as to how the doctor was negligent to proper follow-up the patient after prescribing the steroids. The dose that was prescribed by the opposite party is very high dosage to the patient without any proper follow up by the hospital doctors for a long period. The patient for the first time visited the opposite party hospital on 19.08.2011 with a problem of outward deviation of left eye and had a complaint of painful eye movement’s horizontal and vertical double vision. On examination the visual acuity was 20/20 in the right eye and 20/20 with 0.75Dcyl @ 900 in the left eye. Intraocular pressure was 14 and 17 mm Hg in the right eye and left eye respectively. Anterior segments was unremarkable in both eyes. Fundus was within normal in both eyes with 0.4:1 cup disc ratio in both eyes. Based on the said clinical findings a diagnosis of simple myopic astigmatism in the left eye, emmetropia in the right eye and 3rd nerve palsy in the left eye was made. To find the cause of third nerve palsy MRI and other tests were advised . After examination of the patient the opposite party doctor advised to undergo MRI Brain Scan and other tests. Ex.A8 is the MRI Brain with Contrast test report dated 19.08.2011. On 20.08.2011 the complainant visited the opposite party hospital with reports and the doctor while prescribing I Site Cap. Once a day asked the patient to come for review after a week. The patient visited the opposite party hospital on 27.08.2011 and after testing his vision was 20/20 in both eyes, intraocular pressure was 18mm Hg in both eyes and had an exotropia 16 prism dioptres with 15 prism dioptre left hypertropia. MRI findings revealed that the third nerve palsy was due to diagnosis of Tolosa Hunt Syndrome. The counsel for the complainant would contend that subsequently ‘Tolosa Tunt Syndrome’ was added and advised to use tab.Wysolone 60 mg two times per day, Rantidine 150 mg one tab. 2 times per day and Shalcal 500 mg one tab. One time per day till next week. Ex.A3 is the prescription showing the dosage of the medication. The complainant has contended that Ext.B3 is manipulated. Admittedly, there was some correction at Sl.No.2 Tab.Wysolone 60 mg and after going through it, it might be ‘BD’ means ‘ both per day’ like it was mentioned at Sl.No.3. At Sl.No.5 to the tab. Combiflam it was mentioned as ‘TD’ i.e., thrice per day. Therefore, it is clear that the tablet to be taken two times per day. It was also advised to review after two weeks. In Ex.A3 dated 27.08.2011 which is also prescription it was clearly mentioned therein that Wysolene 60mg to be taken two times per day. The counsel for the opposite party contended that Tab. Wysolne 60 mg two times a day was based on the patient’s body weight as his weight was recorded as 80 kgs and as such started at 1.5 mg per kg and this is the standard care of high dose steroids to control the disease. After two weeks the patient visited the opposite party hospital on 10.09.2011 on that day it was mentioned in B3 that the double vision still persists. The patient vision was 20/20 and N6 in both eyes. Intraocular pressure was 14 and 16 mm Hg in the right eye and left eye respectively. The patient was advised to continue same treatment i.e., Wysolene Tab 1x2, Tab. Rantidine 150 mg 1x2 and Tab. Shelcal 500 Mg 1x1 as there was mild improvement. The patient again visited on 15.10.2011 after one month. It was mentioned in the prescription that no complaint of Diplopia. (diplopia only in right eye). Vision was 20/20 and N6 in both eyes. Anterior segment was unremarkable in both eyes. No complaint of pain and redness. However, the intraocular pressure was 36 and 24 mm HG in the right and left eye respectively and it was also mentioned that improved steroid responder and as such he was advised to use Tab Wysolone in tapering doses i.e., 80/60/40/30 for one week each while advising to continue to use other tabs. He was referred to glaucoma consultation as his eye pressure was high. The Glaucoma Consultant prescribed Tab Diamox ½ daily upto 7 days and review after one week or as and when required. The counsel for the complainant would contend that how can the opposite party doctor increase the dosage of Wysolone 60 mg to 80 mg to 30 mg per week. But as seen from the records it was found that initially the dosage of Wysolene Tab was 120 mg i.e., 60mg + 60 mg two times a day that means the total dosage would be 120 mg. The opposite party except in Ex.A1, Medical Report that Wysolone 60 mg once day, Tab. Rantac 150 mg 2 times a day, Cap Shelcal 500 mg at bed time, Tab Combiflam 3 times a day, no where it was mentioned the dosage of Wysolone 60 mg as once per day. In all the prescriptions it was mentioned as Wysolone 60 mg 1x2. It is also to be noted that as soon as there is some improvement the tablets Wysolone was reduced from 120 mg to 80 mg and weekly tapered. While so, on 23.10.2011 the patient visited Care Hospital with a complaint of abdominal pain, vomiting after food since 7 days. Ex.A10 is the Death Summary wherein it was mentioned that they observed the patient developed altered behaviour with increasing irritability. Therefore Lumbar puncture was done on his advice and CSF was sent for analysis. CSF analysis revealed Acute Pyogenic Meningitis picture with the presence of gram-ve Bacilli at staining. Antibiotic dosages was modified and steroids were continued. The patient improved gradually with treatment But all of sudden the patient developed acute onset breathlessness. Chest X ray was done which revealed pulmonary oedema and his blood pressure started dropping and he was started Ionotrops and albumin infusion. A bronchoscopy was done which revealed Alveolar haemorrhages. BAL fluid was obtained and after analysis reveals the presence of acid Fast Baccilli and Gra-ve Bacilli. His condition continued to deteriorate inspite of all the best treatment manifested by persisting ling infiltrates at serial x rays, falling oxygen saturations and persisting hypotension in spite of inotropic support. On 16.11.2011 patient developed bradycardia and hypotension despite treatment the patient eventually suffered cardiac arrest and he was declared dead at 6:10 p.m., on 16.11.2011. Ex.A6 is the certificate issued by the Care Hospital dated 15.11.2011 wherein it was stated that the cause for disseminated infection was due to Immunosuppression secondary to Cortico steroid intake. But it was not stated in any of the Care Hospital Records that the possible immunosuppression is due to over dosage of the steroids nor, the treatment done by the opposite party is not of the standard treatment.
13. Tolosa-Hunt syndrome is a rare disorder characterized by severe periorbital headaches, along with decreased and painful eye movements (ophthalmoplegia). Symptoms usually affect only one eye (unilateral). In most cases, affected individuals experience intense sharp pain and decreased eye movements. Symptoms often will subside without intervention (spontaneous remission) and may recur without a distinct pattern (randomly). Affected individuals may exhibit signs of paralysis (palsy) of certain cranial nerves such as drooping of the upper eyelid (ptosis), double vision (diplopia), large pupil, and facial numbness. The affected eye often abnormally protrudes (proptosis). The exact cause of Tolosa-Hunt syndrome is not known, but the disorder is thought to be associated with inflammation of specific areas behind the eye (cavernous sinus and superior orbital fissure) The major symptoms of Tolosa-Hunt syndrome include chronic periorbital headache, double vision, paralysis (palsy) of certain cranial nerves, and chronic fatigue. Affected individuals may also exhibit protrusion of the eye (proptosis), drooping of the upper eyelid (ptosis) and diminished vision. In most cases, symptoms associated with Tolosa-Hunt syndrome affect only one side (unilateral). Symptoms will usually subside without intervention (spontaneous remission) and may recur without a distinct pattern (randomly).
14. The exact cause of Tolosa-Hunt syndrome is unknown, one theory is an abnormal autoimmune response linked with an inflammation in a specific area behind the eye (cavernous sinus and superior orbital fissure). In some cases, inflammation may be due to a clumping of a certain type of cell (granulomatous inflammation). Autoimmune disorders are caused when the body’s natural defenses against “foreign” or invading organisms (e.g., antibodies) begin to attack healthy tissue for unknown reasons. Other possible causes may include generalized inflammation and constricted or inflamed cranial blood vessels. The patients experience unilateral onset of acute orbital pain and ophthalmoparesis, and the disorder may threaten sight if untreated inflammation extends beyond the cavernous sinus to affect the optic nerve.
15. The only treatment that was accepted by the International Headache Society to treat the Tolosa Hunt Syndrome is by taking oral corticosteroids to which there is usually a dramatic response with alleviation of pain in 24 to 72 hours. High dosage are used in the order of 60 mg or more, daily and then tapered off. The opthalmoplegia may take weeks or months to resolve. Before the advent of CT/MRI scanning, the response to steroids was used as a diagnostic test. Tolosa Hunt Syndrome usually responds rapidly to treatment with oral steroids, although recurrences may occur months or years later in upto 40% of patients. There may also be complications relating to long-term corticosteroid use. The mechanisms by which corticosteroids inhibit the immune system and decrease inflammation may predispose patients to infection. Other factors influencing the risk of infection include: the underlying disorder, patient age, and concomitant use of immunosuppressive or biologic therapies. Patients using steroids appear to be particularly susceptible to invasive fungal and viral infections. It is important to note that early recognition of infections in patients taking steroids is often difficult. Steroid users may not manifest signs and symptoms of infection as clearly as non-users, due to the inhibition of cytokine release and associated reduction in inflammatory and febrile responses. In the present case the patient visited the opposite party on 20.08.2011, 27.08.2001, 10.09.2011 and 15.10.2011 on every time the patient was checked and noted the results in the case sheet and medicines prescribed as per the stardard practice. The only allegation of the complainant was excess dosage of Wysolene tab. Twice a day. He stated that the dose might be one tab. Wysolene 60 mg per day but the opposite party negligently prescribed twice a day. Except in Ex.A1 in all other prescriptions, records and in case sheet it was advised to take Tab. Wysolone 60mg twice a day and later on 15.10.2011 the dose was reduced from 120 mg to 80 and weekly tapered. The patient never complained of any side effects like vomiting, rashes on body, loose motions, breathlessness and fatigue. It was only when the dose of Wysolene was reduced the problems started on 23.10.2011. There is every possibility of infection with the use of steroids and the same cannot be attributed to the opposite party. For every medicine there is a side effect in some cases it is less and in some cases severe but that does not mean that the said medicine ought not to have been used for the treatment. The patient remained under the treatment of the opposite party till 15.10.2011 during which period tests were conducted and he was given the tablets prescribed by the doctors from time to time. The record of the opposite party hospital from the date the patient visited it till discharge with all the reports of tests, prescriptions, progress note, are available which shows that on 19.08.2011 he was visited due to outward deviation of left eye. Various tests were conducted and the patient was treated with medicines and the patient was asked to come for review several times for follow up treatment. The entire record show that there was no defect or deficiency in the treatment. It is nowhere stated that the patient was not attended to in the opposite party hospital or that any of the medicines given to him were not appropriate for treatment of his ailment. There is no plea or evidence to the effect that treatment prescribed was one which a medical practitioner would not prescribe or that doctors attending him were not duly qualified or that they have not used their skill with due diligence or that they had not acted with reasonable care or that there was any negligence on the part of opposite party. As per the complainant allegations, there has been manipulations of records and the opposite party doctors gave long period for review of the patient for follow up treatment and that the case seems to have not been effectively handled at opposite party hospital but those doctors or any other medical experts have not been summoned to substantiate this vague, bald accusation. Therefore, it can be safely said the opposite party had followed the accepted medical practice in treating the patient.
16. In absence of the direct evidence mere deposition of the complainant cannot be held to be proof thereof. It is an established principle of law that in case of medical negligence, it has to be established on record that the medical professional was not possessing due skill or that he did not exercise with due care the skill he possessed as was expected of a reasonable professional or that he acted negligently or did any act which an ordinary medical professional would not have been done. No such case is pleaded nor proved. Merely because the treatment did not lead to the desired effect cannot make out any case of deficiency in service.
17. At this juncture, it is important to note that recently the 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 judgement 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.
- 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.”
Bolam’s test has been approved by the Supreme Court in
Jacob Mathew’s case.
39) In Halsbury’s 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 man’s 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.
18. Coming to the facts there is no dispute that the opposite party hospital is a World Health Organisation Collaborating Centre for Prevention of Blindness and a Global Resource Centre for Vision 2020 and it is accredited by the National Accreditation Board for Hospitals and Health Care Providers and it had competent doctors to conduct surgery on eyes. The complainant could not establish that the opposite party prescribed high dosage of Wysolene against the standard practice medicine. A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical man skilled in that particular art. In the instant case, what is supported by all the material is that in a rare disease like Tolosa Hunt Syndrome, Steroids are to be given especially when there is no other alternative treatment, support this proposition.
19. To sum up there is no evidence to show that opposite party was negligent in treating the patient. The complainant had failed to examine any independent doctor to prove the negligence or defect in treatment. The documents filed in this regard do not in any way establish that the line of treatment given by opposite party was contrary to the medical practice. On the other hand it supports. But for the treatment he would not have survived for so long. We do not see any evidence, much less credible evidence to suggest that opposite party was guilty of medical negligence.
20. We have considered the evidence in detail along with documents and since there is no evidence challenging the version of the opposite party, we are of the opinion that there was no negligence on the part of opposite party in conducting the operation as was held by the Supreme Court that “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 guilty of negligence.” We do not see any merits in the complaint.
In the result the complaint is dismissed. However, in the circumstances of the case no order as to costs.
PRESIDENT MEMBER
Dated :12.07.2017
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
NIL
EXHIBITS MARKED
For complainants
Ex.A1 Medical Report of the opposite party dated 04.11.2011
Ex.A2 Prescription of Op dated 20.08.2011
Ex.A3 Prescription of Op dated 27.08.2011
Ex.A4 Prescription of Op dated 15.10.2011
Ex.A5 Prescription of Op dated 15.10.2011
Ex.A6 Certificate of Care Hospital dated 15.11.2011
Ex.A7 Investigation prescription of Dr.Amit Gupta dated
Ex.A8 MRI Brain with contrast given by Lucid Diagnostics
dated 19.09.2011
Ex.A9 Clinical Biochemistry Report of Lucid Diagnostics
dated 20.08.2011
Ex.A10 Death Summary report dated 16.11.2011 of Care Hospital
Ex.A11 Burrial Ground Report Death Information dated 16.11.2011
Ex.A12 Death Report of Care Hospital 16.11.2011
Ex.A13 Death Certificate of GHMC
Ex.A14 O/c of Legal notice dated 15.11.2011
Ex.A15 Postal receipt
Ex.A16 Letter of acknowledgement issued by Postal Dept.
dated 25.10.2011
Ex.A17 Postal cover
Ex.A18 Bunch of Medical Bills
Ex.A19 Copy of ECG
Ex.A20 Care Hospital Case Record of the patient
Ex.A21 X-rays
For opposite party
Ex.B1 Copy of Diagnostic Criteria laid down by the International
Headache Society
Ex.B2 Article on Tolosa-Hunt Syndrome
Ex.B3 Copy of complete case record of the treatment of OP
PRESIDENT MEMBER
