Date of Filing: 01.09.2014. Date of Disposal: 06.12.2022.
Complainant : Sri Biplab Swain, S/o Lt. Ram Swain of Aurobinda Nagar,
Road No. 10, Sector - III, P.O. Hindusthan Cables, P.S. Salanpur, Dist. Burdwan.
-VERSUS -
Opposite Party :1. The Director, Disha Eye Hospitals Pvt. Ltd. RD – 100, Palasdiha, Durgapur – 713208, Dist. Burdwan.
2. Dr. Partha Mondal (M.B.B.S, D.O.), Regd. No. - 47408.
3. Dr. Sujit Gharai (M.B.B.S., MD, DNB), Regd. No.-WBMC–57978.
Both of – C/o Disha Eye Hospitals Private Ltd, RD – 100, Palasdiha,
Durgapur – 713208, Dist.-Burdwan.
4. The Director, Disha Eye Hospitals Private Ltd, 88(63A),Ghoshpara
Barrackpore, Kolkata – 700120.
Present : Mohammad Muizzuddeen -Hon’ble President.
: Mrs. Lipika Ghosh - Hon’ble Member.
: Mr. Atanu Kr. Dutta. - Hon’ble Member.
Appeared for the Complainant : Sri Sougata Dey, Ld. Advocate.
Appeared for the Opposite Party Nos.1,2 & 4. : Sri Subrata Ghosh Ld. Advocate.
Appeared for the Opposite Party No. 3 : Sri Amitava Chowdhury Ld. Advocate.
FINAL ORDER
On 01.09.2014 the complainant, Biplab Swain, has lodged the complaint against the OPs u/S 12 of the Consumer Protection Act, 1986.
The case of the complainant, in brief, is that Subhajit Swain, the son of the complainant, aged about 7 years, was struck in his eye by a bamboo protruding out of a pandel on 14.01.2014 at about 10.30 a.m. for which he was moved to Sankar Bhaban, Netralaya, Rupnarayanpur, Dist Burdwan who referred him to the Centre of OP No.1 on 14.01.2014 on about 3.45 p.m. and OP No.2 treated him there and asked the complainant to bring his son on 15.01.2014 for surgery of the injured eye. As directed by the OP No.2, Subhajit Swain had undergone surgery by the OP No.2 with corneal wound repair and Anterior Vit (cat) with cortical cleaning on 15.01.2014. The surgery procedure was lasted for about 2 hours and no pre-operative investigations of the eye or of anything was done by the OP No.2. He was discharged after 2 hours of surgery and was advised to follow up medicines and to report on 18.01.2014. The OP No.2 on 18.01.2014, performed USG of the affected eye and reported that the retina of eye affected/injured eye was saved. No harm was done and the retina was absolutely okay. Thereafter, follow ups were made on 24.01.2014, 15.02.2014 as per direction of the OP No.2. On 15.02.2014 the vision improved a bit with no peripheral treatable lesion as endorsed by the OP No.2. On follow up made on 08.03.2014 the vision of the right eye improved further compared to 15.02.2014. On 08.03.2014 the OP No.2 advised the complainant to review after one month. On 05.04.2014 the complainant brought his son to review after one month to the OP No.2 where vision of the right eye of Subhajit was deteriorated and the OP No.2 advised to refer the patient to the OP No.3, who is a Retina specialist. The OP No.3 examined him on 07.04.2014 and after prescribing medicine, asked to come for review on 05.05.2014. He was again reviewed by the OP No.3. There was no vision in the right eye of him. On examination on that day, the OP No.3 endorsed that there was retinal detachment for which there was no vision in the right eye and nothing can be done for its repair. The OP No.3 asked the complainant that no fruitful result will yield, if the eye is treated as there is retinal detachment and asked the complainant to take a second opinion. The complainant, being shocked by such report given by the OP No.3, rushed to the OP No.2 who said that there is nothing to worry, no serious condition happened, just to come for review before him. But the complainant being tremendously shocked and being in terror, rushed to Sankara Netralaya, Chennai, with Subhajit on 21.05.2014 where doctors after seeing the reports of the OP No.2 & 3 gave out that damage has already been made previously, but they can take a last chance without any possibility of successful result. On 26.05.2014 doctors of Sankar Netralaya, Channai, performed surgery on the right eye of Subhajit but no fruitful result was served. Thereafter prescribing with follow up medicines and advised to review after 6 weeks. But unfortunately, on review, Dr. Parveen Sen of Sankar Netralaya, Chennai, disclosed that the right eye of Subhajit Swain has been totally damaged and he has become blind in the right eye and accordingly the said doctor gave a certificate on 10.07.2014 where Subhajit was certified as 30% visually handicapped.
Further case of the complainant is that Subhajit Swain has become totally blind in the right eye and at present cannot move at night without the aid and help of others. Due to the negligent act of the OP Nos. 1, 2 & 3 the right eye of Subhajit has been damaged and water is pouring out of the right eye continuously.
In this way the OPs committed deficiency in service and negligence. The complainant expended Rs. 1,40,000/- for the treatment of his son and the cause of action arose on and from 14.01.2014 and is still continuing.
Upon this background the complainant prays for giving direction to the OPs to pay Rs. 18,00,000/- as compensation to the complainant, Rs. 1,40,000/- as medical expenses incurred by him.
The OP Nos. 1, 2 & 4 have contested the case by filing Written Version jointly denying all the material allegations contending inter alia that the case is not maintainable in its present form and prayer that the complainant has filed this case with mala fide intention and that the case is suffering from non-joinder and mis-joinder of necessary parties and that the complainant has no cause of action to file the case and that the case is bad in law.
The specific case of the OP Nos. 1, 2 & 4, in brief, is that the OP No.1 is a well-equipped eye hospital having trained and experienced nurses and staffs and the OP No.4 is the head office of the OP No.1 and they are institutional juristic person. The OP No.2 is an experienced renowned and reputed Eye Specialist. The OP No.2 has been attached to Disha Eye Hospital Pvt. Ltd. for a long time and has been treating patients carefully till date and day by day and the OP Disha Eye Hospital has been gaining reputation for providing better treatment to the patients. These OPs stated that one 6 years male child i.e. the son of the complainant herein, presented with a history of trauma by a stick and consulted elsewhere with a diagnosis of sclerocorneal tear and referred to the OP Hospital. Then the doctor examined his visual acuity in injured eye was perception of light with inaccurate projection of rays. Visual acuity was normal in left eye. Examination revealed corneal tear with vitreous prolapse in right eye precluding further view and thereafter the OP advised the complainant for operation in the form of corneal tear repair with anterior vitrectomy of his son. These OPs further stated that after explaining guarded visual prognosis and possibility of infection, the operation was planned on the next day under General Anesthesia. Then corneal would repair with anterior vitrectomy and cortical cleaning in right eye of the son of the complainant was done on the next day as an emergency care and after clinical examination and after opening up patch, the patient was discharged on the same day with postoperative advice and asked the complainant to come after 3 days for medical checkup. Then the patient attended on 18.01.2014 and on examination there was evidence of usual post-operative findings after such an operation with mild visual impairment of perception of hand movement in that eye. Immediately the doctor advised the complainant to undergo ultrasonography of the eye of the patient to find out the status of the posterior segment where the report came out to be normally attached retina with few vitreous opacity. The ultrasonography was done by the retina consultant of the OP. Then the patient was advised to use postoperative medications and asked to review after 6 days. The complainant attended his son in the clinic on 24.01.2014, when the vision in the operated eye improved up to counting finger close to face with normal postoperative findings and then the patient was advised to use medications and asked to come after two weeks. Thereafter the patient was reviewed on 15.02.2014, when the best corrected visual acuity was 6/24 in the operated eye. Posterior segment was examined with indirect ophthalmoscope with the findings of some vitreous haemorrhage without any treatable lesion in the periphery as much as seen. Then the patient was advised with medications with tapering doses and asked to review after 3 weeks. The patient attended on 08.03.2014 when his best corrected improved upto 6/18 in the operated eye. He was advised to use eye drops and asked to review after one month. Then the patient was reviewed on 05.04.2014 when his best corrected visual acuity was 6/24 and the doctor advised the patient to review with retina consultant. Thereafter the patient was reviewed on 07.04.2014 by the Rretina Consultant (OP No.3). The best corrected visual acuity of the patient fell up to 6/60, but with the evidence of vitreous haemorrhage and possibility of further improvement after rest the patient was asked to review after 2 – 3 weeks. The patient reviewed for the last time on 05.05.2014 when his visual acuity dropped up to inaccurate projection of rays. Thereafter the patient was presented with sudden visual loss for one week. At that time the patient was found to have Funnel Retinal detachment with giant retinal tear. Then the doctor advised the patient for retinal surgery with very guarded visual prognosis. The patient was then consulted with the doctor in Shankara Nethralaya (Chennai) on 21.05.2014. So it is very much clear that from beginning to the end the OP doctors treated the patient as per norms of medical science specially Science of Ophthalmic and there is no question of medical negligence from the part of these OPs.
The OPs further stated that surgery was performed as an emergency surgery where the case is usually put up after clinical examination by the anesthetist and after about 4 – 6 hrs of fasting. However the operative course and post-operative recovery was smooth and uneventful. It is stated further that when the complainant came to the doctor on 05.05.2014 after consultation with Retina Consultant (OP No.3), this OP No.2 wanted to persuade the complainant to undergo the necessary surgery advised by OP No.3 and nothing more. After operation for about 3 months the patient had improvement in vision. The complication that occurred due to injury can follow at any time in the clinical course and the complainant did not take the immediate necessary action advised by the Retina Consultant. Moreover, the patient was gaining vision up to 6/18 almost 50% of normal on postoperative visit and when the vision deteriorated partially on 05.04.2014 by one line the patient was referred to retina consultant. So there is no question of deficiency in service and unfair trade practice as well as medical negligence on the part of the OPs.
Upon this background the OP Nos. 1, 2 & 4 claimed the dismissal of the case.
The OP No.3 has also contested the case by filing Written Version denying all the material allegations.
The specific case is of OP No.3 is that the son of the complainant is referred to Shankar Bhaban Netralaya, Rupnarayanpur, for right eye sclera-corneal rupture with uveal tissue prolapse & hyphema due right sided ocular trauma by stick on 14.01.2014. The child was examined at Disha Eye Hospitals Pvt. Ltd. by OP No.2 on the same day. Thereafter the patient came for retinal check up to the OP No.3 on 07.04.2014 as referred by the OP No.2. After clinical examination the OP No.3 found that right eye presenting vision was figure count 1 meter (low vision): was improved to 6/60 with + 8D Spherical Lens. The right eye corneal scar, aphakia, vitreous hemorrhage, attached retina, recurrent intraocular inflammation were noted. The OP No.3 advised oral steroid for 3 weeks, topical non-steroidal anti-inflammatory medicines as retina was attached. The patient was also advised to review within 2 to 3 week as there was inflammation for strict follow up. The patient came to the OP No.3 after 4 weeks with fresh complain of sudden deterioration vision loss of right eye for 1 week. On examination of retinal detachment with fresh Giant retinal tear was noted. The patient was advised for urgent vitreo-retinal surgery under general anesthesia with very very guarded visual prognosis very urgently. But the patient did not report to the OP No.3 anymore. The present complaint is baseless and flagrant abuse of the process of Law with a clear intention to harass blackmail and disturb the OP No.3 without any blemish on his part.
Upon this background, the OP No.3 claims for dismissal of the case.
Decision With Reasons
In order to prove the case, the complainant filed evidence-on-affidavit. The OP Nos. 1, 2 & 4 filed questionnaires to the complainant and complainant filed replies.
The OP Nos. 1, 2 & 4 failed to adduce any evidence-on-affidavit on their behalf though they were given opportunities. But OP No.3 has filed evidence-on-affidavit. The OP No.3 filed the reply to the questionnaires submitted by the complainant against his evidence. But subsequently the Written Version submitted by the OP Nos. 1, 2 & 4 has been treated as evidence-on-affidavit. The complainant then filed questionnaires and the OP Nos. 1, 2 & 4 filed replies against the said questionnaires.
On 19.05.2017 the expert opinion was received. On 28.07.2017 the complainant submitted questionnaire to the expert doctor. The expert doctor filed the reply.
On perusal of the complaint, written versions, evidence-on-affidavit of both sides, questionnaires and reply as stated above, and the opinion of expert and its questionnaires and replies, it appears that OP No.4 is the principal institution of OP No.1 and they have only been made parties in this case as the OP No.2 and OP No.3 were attached to those institutions for medical treatment of the patient attended there. According to evidence of both sides OP Nos.1 & 4 have nothing to do regarding medical negligence, as they are well equipped and infrastructure for medical treatment of the eye according to medical science (Ophthalmology) and it is quite natural that they are not liable for medical negligence, if any, caused by its doctor. They have only made parties to the case for the sake of defect of parties of the case. As such both the OP No.1 and 4 are not liable for medical negligence in this case.
From the evidence of both sides, it appears that OP No.3 Dr. Sujit Gharai is the Retina Specialist and OP No.2 referred the patient Subhajit Swain for opinion of the retina expert and the OP No.3 after examining the patient gave his opinion and injury of the evidence, we did not find any material to connect this OP No.3 to the effect that he caused medical negligence by giving its opinion in respect of the treatment of retina of eye and whatever material regarding the condition and position of the retina of the patient were found by him has been stated in his note and nothing is forthcoming about the defective opinion against his opinion. And the expert opinion dt. 15.05.2017 disclosed that the OP Nos. 2 & 3 have sincerely managed the case and treated the patient according to the known protocol and the problem was diagnosed timely and treated accordingly. The expert in his reply to the cross-examination of the complainant stated that doctors have followed up the patient regularly and on 05.04.2014 when patient came he had a drop in vision and was promptly referred to retina specialist and on 07.04.2014 the retina specialist found that retina was attached and he called back the patient 2 – 3 weeks. Patient came back on 05.05.2014 ( i.e. after one month) with history of dimness of vision over last one week. He was promptly advised Vitrectomy and there is no role of Pneumatic Retinopexy before diagnosis of RD but in many cases development of Retinal break and accumulation of sub retinal fluid (SRF) can occur simultaneously with no scope of diagnosis and OCT is mandatory for RD surgery. From this evidence of the expert, we do not find any material that the OP No.3, being a retina specialist, committed any breach of duty to take care and of the damaged eye rather he tried his best by giving the above opinion. Therefore, we do not find any material that the OP No.3 committed any deficiency in service and negligence especially professional negligence.
Now we like to discuss the evidence of both sides as to how the complainant has proved the case of medical negligence/professional negligence against the OP No.2 doctor Partha Mondal. From the evidence-on-affidavit, it is found that OP No.2 examined the patient on 14.01.2014 at about 3.45 p.m. when the patient Subhajit Swain, aged 7 years, who is the son of the complainant was brought from Shankar Bhaban, Netralaya, Rupnarayanpur, District – Burdwan, who referred them to the Centre of OP No.1. Wherein OP No.2 was attached after preliminary treatment, advised the complainant to bring his son on 15.01.2014 for surgery of the injured eye as because the right eye of the patient was struck by bamboo protruding out of a pandel on 14.01.2014 and surgery was done on 15.01.2014 on the injured right eye and the patient was discharged after 2 hrs. of surgery and was advised to follow up medicines and to report on 18.01.2014. It is alleged that no pre-operative investigation of eye or of nothing was done by the OP No.2. But prior to his treatment the Shankar Bhaban Netralaya treated the injured eye of the patient. At first Provisional Diagnosis was made by the doctor of the Shankar Bhaban Netralaya Rupnarayanpur, Sclera Corneal Rapture was seen and prescribed medicine Vizomox eye drop. Then referred the patient to OP No.1 where OP No.2 treated the patient. It is submitted by the Ld. Advocate for the OP No.2 that as the patient was already diagnosed by Shankar Bhaban Netralaya and as it was very urgent to give treatment by surgery, there is no necessity to do any pre-operative investigation of the eye. That apart, according to circumstances of the case, it was very urgent to give treatment to repair the Corneal tear with anterior vitrectomy and in this case no such pre-operative investigation has been mentioned by the complainant what would be necessary to do for the emergent surgery of the injured eye.
According to evidence of the complainant, the OP No.2 repaired corneal wound and Anterior Vit (Cat) with cortical clearing on 15.01.2014 by surgery and he advised the complainant and the patient to follow up his advice and medications with very caution. On 05.04.2014, the complainant brought the patient to the OP No.2, when vision of the right eye of the patient deteriorated and OP No.2 advised to refer the patient to OP No.3 retina specialist. And we have already discussed as to what step taken by the OP No.3 in this regard and OP No.3 endorsed that there was a retinal detachment for which there is no vision in the right eye. But the complainant did not brought the patient to OP No.2 after that, for necessary subsequent step which should have been taken by the OP No.2 and he then went to Sankara Netralaya, Chennai on 21.05.2014. It is alleged by the complainant that on seeing the reports of OP Nos. 2 & 3, Sankar Netralaya Chennai, gave out that damage had already been made previously and in-spite of it, they can take a last chance without any possibility of successful result and accordingly on 26.05.2014, doctors of Sankar Netralaya Chennai performed surgery on the right eye of Subhajit but no fruitful result and Sankar Netralaya prescribed with follow up medicines and advised to review after 6 weeks. But the doctor gave a certificate on 10.07.2014, where Subhajit was certified as 30% of visually handicapped. In this case the complainant did not make the Sankar Netralaya, Chennai as a party to the case, as because he has made no allegation against it and the total incident for deterioration of the vision of the right eye of the patient and subsequent treatment by another surgery at Sankar Netralaya, Chennai is post-operative stage of the surgery in this case. But from the medical papers issued by Sankar Netralaya Chennai, in the name and style as Medical Research Foundation, Chennai, no where it is found that the OP No.2 & 3 gave out the damage had already made previously. Therefore this allegation has no basis at all. This case does not support by documents issued by the Medical Research Foundation Chennai. Furthermore, according to Medical Science, the OP No.2 tries his best to give proper treatment to the patient may be positive or negative.
In the case of medical negligence, it must be looked into as to whether there was any want of taking duty to take care or Commission to do something which ought not to do by an ordinary prudent man. Moreover the certificate issued by Sankar Netralaya dt. 10.07.2014, the patient can be considered as 30% visually handicapped that means 70% visually capable.
Therefore the allegation that the patient has become totally blind in the right eye is not out and out true.
Now the expert opinion (evidence) is very much relevant regarding the allegation of medical negligence against the OP No.2. The expert report dt. 15.07.2017 disclosed that according to opinion, the accused party has sincerely managed the case and treated the patient according to known protocol. The complication suffered by the patient is known and documented and no fault of the surgeon. The problem was diagnosed timely and treated accordingly, and thus opinion given by Dr. Mousumi Bandhyopadhyay, Professor and HOD Department of Ophthalmology, Burdwan Medical College & Hospital, Burdwan after going through the papers and procedure adopted by the Doctor concerned. In this situation, this expert evidence plays a vital role and experts in the line are examined in details. The cross examination by the complainant of the expert of this case cannot bring the fruitful result in his favour.
Negligence means omission to do something which a reasonable and prudent person guided by the consideration, which ordinarily regulate human affairs would do something, which a prudent and reasonable person would not do those reasonable degree. And the Doctor is not liable for the mischance or misadventure for an error of judgment. He is also not liable for taking one choice out of two or favouring one school rather than another. He is only liable when he fell below the standard of a reasonable competent practitioner in his field but in the instant case no such material is forthcoming to prove that the OP No.2 is liable for not doing the treatment as a prudent and reasonable person.
The duty of medical practitioner arises from the fact that he does something to a human being which is likely to cause physically harm unless it is done with proper care and skill.
The standard of care and skill to satisfy the duty to take care in Law of Torts is
ordinary competent medical practitioner exercising the medical degree of professional skill. In the instant case, going through the oral evidence as well as documentary evidence of both sides, it is found that the OP No.2, from the very beginning of the treatment to the end of the treatment before him took the care and exercised the ordinary degree of professional skill and the expert opinion supported it.
Under the above facts and circumstances, we are of opinion that the OP No.2 also did not do any deficiency in service and negligence.
As a result the case must fail.
Hence, it is
ORDERED
That this case be and same is dismissed against the OP Nos.1 & 2, OP Nos.3 & 4 but without any cost.
Let a copy of this final order be given to the parties on free of cost.
Dictated & corrected by me.
President
D.C.D.R.C , Purba Bardhaman.
Member Member President
D.C.D.R.C , Purba Bardhaman. D.C.D.R.C, Purba Bardhaman. D.C.D.R.C , Purba Bardhaman.
