National Consumer Disputes Redressal
B.K. Sharma vs Bharti Eye Foundation on 20 August, 2009
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NATIONAL CONSUMER
DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO.477 OF 2006
(Against the order dated 19.12.05 in Appeal No.1777/99
of the State Commission, Delhi)
B.K. Sharma,
MIG Flats No.56,
Pocket H/33
Sector III, Rohini
Delhi 110 085 ........ Petitioner
Vs.
1. Bharti Eye Foundation
18/49, East Patel
Nagar Market
New Delhi
2. Dr. S. Bharti
1/3, East Patel
Nagar,
OPP. Vivek Cinema
New Delhi 8. ... Respondents
&
REVISION PETITION NO.627 OF 2006
(Against the order dated 19.12.05 in Appeal No.1777/99
of the State Commission, Delhi)
1. Bharti Eye Foundation
18/49, East Patel
Nagar Market
New Delhi
2. Dr. S. Bharti
1/3, East Patel
Nagar,
OPP. Vivek Cinema
New Delhi 8. ...... Petitioners
Vs.
B.K. Sharma,
MIG Flats No.56,
Pocket H/33
Sector III, Rohini
Delhi 110 085 ... Respondent
BEFORE:
HON'BLE
MR. JUSTICE B.N.P. SINGH, PRESIDING MEMBER
HONBLE MR. S.K. NAIK, MEMBER
For the Petitioner : Dr. Ashwani
Bhardwaj, Advocate in RP/477/06
and
respondent in RP/627/06
For the Respondent : Mr.
Anil Mittal, Advocate in RP/477/06 and
Petitioner
in RP/627/06
Pronounced on : 20.08.2009
ORDER
PER S.K. NAIK, MEMBER These two revision petitions, one R.P. No. 477/06 filed by the complainant B.K. Sharma and the other R.P. No.627/06 filed by Bharti Eye Foundation & Anr. seek to challenge the same order of State Commission, Delhi dated 19.12.2005, vide which, the State Commission has set aside the order of dismissal of the complaint passed by the District Forum in Case No.445/97 dated 17.9.1999. The State Commission in its order held that the Bharti Eye Foundation and its doctor are liable for medical negligence and, therefore, awarded compensation of Rs.50,000/- including the cost of litigation in favour of the complainant.
The complainant has filed this revision petition alleging that the compensation of Rs.50,000/- was too meager as against his claim of Rs. 4,50,000/- whereas the OP-Bharti Eye Foundation and its doctor have challenged the order of the State Commission on the ground that the State Commission has erroneously held them liable ; as based on the evidence and proper appreciation of the facts of the case, the District Forum has rightly dismissed the complaint.
The case has a somewhat chequered history. For the sake of easy understanding, we will refer Sh. B.K. Sharma as the complainant and the Bharti Eye Foundation OP No.1 and Dr.S. Bharti - OP No.2, as arrayed before the District Forum.
On 4.10.1996, the complainant had approached OP No.2 with a complaint in his right eye. After examination, Dr.S. Bharti, advised him to undergo certain tests and report on 12.10.1996 with the test reports. On the basis of the reports, the doctor opined that the complainant had right eye cataract and was advised to come for operation on 14.10.1996. He was also advised to take certain oral medicines as well as some eye drops before the operation was to be done. As scheduled, the operation was conducted on 14.10.1996 and the complainant at the time of discharge, was advised to report the next day for removal of bandage. The allegation of the complainant is that the cataract operation had been conducted against the prescribed medical norm of blood sugar limit of 160 mg% which resulted in post operative complications and, therefore, the OPs had referred him to All India Institute of Medical Sciences (AIIMS) vide their letter dated 6.11.1996. As per OP, the complainant after 15.10.1996 contacted them again on 6.11.1996 with some complaint in his right eye. On examination, the OP-Doctor apprehended the complaint to be as a result of Retinal Detachment and, therefore, referred the complainant to AIIMS on the same day.
While the OPs state that the complainant never returned to them thereafter, it is the allegation of the complainant that the OPs undertook a second operation on him on 17.11.1996.
The second operation too was conducted when the blood sugar level was 187.8 mg% against the admitted upper limit of 180 mg%. The operation too was not successful, which has resulted in the complainant going completely blind in the right eye. It was in this background that a complaint was filed before the District Forum seeking a compensation of Rs.4,50,000/-.
District Forum, as already stated, dismissed the complaint, which was first challenged by the complainant before the State Commission in Appeal No. A-1777/99, which, however, was dismissed in limine on 10.2.2000. The complainant thereafter challenged the dismissal order of State Commission before this Commission and the matter vide our order dated 5.2.2002 was remitted back to the State Commission for decision on merits in accordance with law. It is, while considering the appeal of the complainant on merits that the State Commission has passed the impugned order, which has again been challenged before us. This time both the complainant as well as the OPs have challenged the order of the State Commission.
Learned Counsel for the complainant has submitted that the State Commission has very rightly held the OPs guilty of medical negligence, but has failed to appropriately compensate the complainant. A sum of Rs.50,000/- was awarded against a claim of Rs.4,50,000/- which is not commensurated with the loss suffered by the complainant on account of the expenditure incurred by him on the treatment and the trauma and sufferings thrust on him for his entire life.
He has, therefore, very strongly pleaded that the amount of compensation be enhanced to the extent, as prayed in the complaint.
Learned Counsel for the OPs on the other hand has contended that the State Commission has failed to appreciate the material evidence on record that the alleged second operation on 17.11.1996 was never conducted by the OPs. He has submitted that the cataract operation on 14.10.1996 was conducted successfully and the complainant was discharged on the same day and was advised to take only oral medicines, which would be evident from the discharge slip at Page 12 of Volume I filed, by the complainant. When the complainant visited the hospital on 15.10.1996, the bandage on his right eye was removed and the complainant could see well, which meant that the cataract had been properly removed and the operation was successful. Since the complainant had not brought the discharge slip given on the previous day of operation, a fresh blank discharge slip after writing his name and after ticking the medicines to be put in his eye were prescribed. While on the discharge slip on 14.10.1996, only oral medicines were prescribed because no eye drop can be prescribed on bandaged eye, on 15.10.1996, after removal of the bandage, eye drops and other medicines to be put on the eye were prescribed. However, no date was mentioned in the second discharge slip. Learned Counsel contends that it was this second discharge slip, which did not bear date has been taken advantage of by complainant who has later on entered the date of 17.11.1996 just to fabricate evidence that a second operation had been conducted. Further, when the complainant had approached the OP on 6.11.2006 with some complaint, on examination, fundus was visible in the eye, which was indicative of Retinal Detachment in the inferior half of the right eye, which was not visible earlier due to intervening cataract. It was also possible that it precipitated after the first operation. It was in its background that the OP doctor referred the patient for a second opinion on the same day to Dr. Atul of All India Institute of Medical Sciences, New Delhi. The fact that there was no reference back to the OPs by the All India Institute of Medical Sciences with their opinion, falsifies the allegation that an operation was conducted by the OP on 17.11.1996. Learned Counsel further submits that, had there been anything wrong in the performance of cataract operation on 14.10.1996, why would the OP make a reference to the All India Institute of Medical Sciences. On the other hand, he would have himself tried to repair the damage, if any, and not get exposed.
On the allegation of the complainant that he was operated upon, even though, his blood sugar was 177 mg% while the normal range prescribed is 80 mg% to 140 mg%, the Ld. Counsel submits that the target for control diabetes is 160-180 mg% as has been stated by Dr. V.K. Gujral, Sr. Consultant and Physician Cardiologist and Diabetologist in his affidavit. Further, as per handbook for the Management of Non Insulin Dependant Diabetes Mellitus (NIDDM), sugar level up to 200 mg% was safe level for emergency operation. Besides, the operating surgeon has to be given the benefit of his professional judgement as to where a line should be drawn between the upper limits of the blood sugar level for conducting an operation to save an eye. According to him, the complainant has tried to make out a case, which is neither supported by any expert opinion, nor any medical literature on the subject.
The Counsel has further contended that that the State Commission has totally gone wrong in holding that the blood sugar was beyond the permissible range and that there was unanimous expert opinion on this subject without any supportive evidence/document.
Contending that the State Commission has totally misinterpreted the reports of Guru Nanak Eye Centre and the Dr. Pattnaik Eye Centre, he submits that it has totally misunderstood the meaning of the word UNEVENTFUL as if to mean the operation being unsuccessful whereas in medical terminology the world connotes exactly the opposite and the word means that operation was without any untoward happening or complication.
Similarly, the medical papers of Dr. Pattnaiks Laser Eye Institute produced by the complainant in support of his case at Pages 20-24 of Volume I, nowhere states that there was any negligence by the OPs in conducting cataract operation.
The clinching evidence which the State Commission failed to consider is that 17.11.1996 happened to be a Sunday when the hospital remains closed. In support thereof he has referred to the medical records of their hospital produced by the complainant himself in particular Pages 10,11,13 & 17 on which, it has been boldly printed that Sundays are closed. Further, the OP -
doctor was away to Ambala on the calling of one Dr. V.K. Bansal to conduct operations there. The medical records with regard to the operation maintained by the hospital does not refer to any operation conducted on 17.11.1996 while it clearly bears the name of the complainant on 14.10.1996.
Ld. Counsel, therefore, submits that the cumulative effect of all these facts and circumstances clearly prove that no second operation had been conducted on the complainant on 17.11.1996 and the allegations and the evidence have been wrongly framed to malign the OPs with ulterior motives. He, therefore, prays that the order of the State Commission be set aside and the complaint be dismissed.
The main dispute in these revision petitions center around whether ; (a) undertaking a cataract operation when the blood sugar level was 177.4 mg% (pp) was the right thing to do or was medically not advisable and secondly (b) ; whether a second operation, as alleged by the complainant had really been done on 17.11.1996 or it was made out as an afterthought by taking advantage of Bank discharge slip given on 15.10.1996 after the removal of the bandage from the eye in order to prescribe post operative medicines.
On the first point with regard to range of blood sugar level, the complainant has stated that the normal range prescribed is 80 mg% to 140 mg%. Since his blood sugar level was 177.4 % mg on the date of the operation, he alleges it to be a case of gross negligence on part of OP No.2 doctor to have conducted the operation. The complainant, however, has neither produced any expert opinion nor any medical literature on this subject. On the other hand, the OPs have right from stage of the submission of their written version have been contending that while there is no absolute parameter or upper limit which says that no operation can be conducted if the blood sugar level reaches that level, available medical literature state that surgery can be performed if the blood sugar level is below 350 mg%. Referring to the guidelines contained in General principles under the Head Urgent Surgery, it has been submitted that operation can be allowed even when it was not possible to wait for the blood sugar level to fall below 350 mg% with intensive management of diabetic state in conjunction with the surgical procedure. In addition, the counsel contends that it is the clinical judgment of the surgeon as to what can be more harmful blood sugar level or the disease which can cause loss of vision and the treatment is decided by the doctor in the best interest of the patient. In the case in hand, the blood sugar level being 177.4 mg was well within the limit.
While, on this issue, the District Forum had rightly observed as under
:-
The Bio-chemistry report Annex.II goes to show that blood sugar (pp) was 177.4 mg%. The OP was urged that the operation could not be done even if the blood sugar (pp) level was in the range of 160 mg to 180 mg. In support of his contention, the OP was filed extract for hand book for. The Management of Non Insulin Dependent Diabetes Mellitus (NIDDM) based on Indian Consensus 1996.
It has been mentioned that with optimal preoperative care surgery can be safely undertaken in diabetes. The preoperative care is the aim should be to have all diabetics undergoing surgery under optimal control may not be always feasible, specifically in an emergency situation. In this booklet the table of optimal of control has also been given.
According to this table, the level of venous plasma glucose mg/100 mt, (blood sugar) 2 hour post parandial (PP) in the range of 140-160 is good, 161-180 is fair and above 180 is poor.
It is, therefore, evident that the blood sugar level in the range of 161-180 is fair and surgery can be performed, as stated by the OP in his written statement and affidavit. The complainant has not been able to produce any literature to show that the surgery was prohibited in the blood sugar range of 161-180 mg%. As mentioned in the said booklet the surgery can be performed under optimal control of blood sugar and the same had been done in this case. We do not see if the OP had been negligent in conducting surgery on the complainant who had blood sugar level of 177 mg%.
The State Commission in its order while accepting that 177.4 mg% was within the norm, however, felt that the second operation which the opposite parties have proved not to have been conducted, as we shall discuss in the subsequent para ; was conducted at 187 mg% which was beyond the norm. This view too is erroneous, since, the medical literature referred to above under the Head Urgent Surgery clearly provides that the upper limit can go even upto 350 mg%. It is thus, clear that the operating surgeon was the best judge to decide whether, in the given blood sugar status of the patient, the operation would have any adverse effect and it would be unfair to make him liable on this count. In this regard, it would be relevant to refer to what the Honble Supreme Court has to say on the subject. In para 26 of the judgment reported in Jacob Mathew Vs. State of Punjab and Anr. (2005) 6 SCC 1, Honble Supreme Court has stated as under :-
No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitur is not of universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors. Else, it would be counter-productive. Simply because a patient has not fabourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur.
Further, in para 31 thereof referring to the work Errors, Medicine and the Law (Cambridge University Press, 2001) by Alan Merry and Alexander McCall Smith, it has been held that :
31. There is a marked tendency to look for a human actor to blame for an untoward event, a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it.
To draw a distinction between the blameworthy and the blameless, the notion of mens rea has to be elaborately understood. An empirical study would reveal that the background to a mishap is frequently far more complex than may generally be assumed. It can be demonstrated that actual blame for the outcome has to be attributed with great caution. For a medical accident or failure, the responsibility may lie with the medical practitioner and equally it may not. The inadequacies of the system, the specific circumstances of the case, the nature of human psychology itself and sheer chance may have combined to produce a result in which the doctors contribution is either relatively or completely blameless.
In the case in hand, there is no allegation that the OP doctor has intentionally against the will of the petitioner/complainant conducted the cataract operation to cause any loss or injury to the complainant and just because the complainant has not favourably responded to the treatment because of some other complication, it would be unfair to hold him negligent.
Coming to the second limb of the argument advanced by learned counsel for the complainant that a second operation also was conducted on 17.11.1996, the District Forum in its order has elaborately discussed the evidence and has held that the complainant having failed to produce any record of second operation except the discharge slip which was nothing but a prescription of medicine which was given as a measure of post operative care on 15.10.1996 and further taking into consideration 17.11.1996 being a Sunday when the clinic remains closed and further that the OP No.2 doctor on that day was away at Ambala in support of which the affidavit of Dr.V.K.Bansal of Ambala City has been filed, there was truth in the statement of OP No.2, Dr.Bharti that no operation was conducted on 17.11.1996. The State Commission in arriving at the conclusion that a second operation indeed had been conducted on 17.11.1996 and that the documents were not forged or interpolated appears to have heavily relied upon the reports dated 13.11.1996 of the Delta Diagnostic & Rehabilitation Clinic (page 15 and 16 of the Vol.I) as also on the prescription slip dated 15.11.1996 (page 17 of the Vol.I) and discharge slip dated 17.11.96 (page 18 of the Vol.I). On a careful perusal of these documents, however, we notice that the Delta Diagnostic & Rehabilitation Clinic have prepared their reports on a reference made by AlIMS and not by OP No.2 doctor. The purpose for which these reports were called by the AIIMS would only be known to them. The complainant has not stated as to what advice was given to him by the AIIMS thereafter. But, it appears from page 14 of Vol.I of the paper book that the complainant was admitted in AIIMS for Retina Detachment Surgery on urgent basis. There is no date on this OPD card but obviously, such a decision was taken on the basis of diagnostic reports dated 13.11.1996. The complainant has not stated whether he was operated for Retina Detachment thereafter, but going by AIIMS OPD card, he must have been operated after 14.11.96. Obviously, therefore, second operation by OP No.2 on 17.11.1996 had a remote possibility. Since, the OP No.2 doctor has denied that the complainant ever returned to him after 6.11.1996, these diagnostic reports cannot be made the basis for the second operation by OP No.2. Further, on a careful perusal of page 17, which is claimed to be a prescription and is dated 15.11.1996 ; we find the following endorsement at the bottom :-
17.11.1996 Come at 6.30 When this very document at the bottom states that the timings are from 10.00 a.m. to 6.00 p.m. with Sunday closed, it has not been explained as to how the time of 6.30 was assigned to him for operation, as 6.30 could at best refer to 6.30 p.m. which does not appear to be an appropriate time for an operation that too on a Sunday. The preponderance of the evidence and the circumstances definitely point towards certain interpolation which the State Commission has totally mis-interpreted.
Be that as it may, even if it is considered that a second operation had been conducted with the blood sugar level at 187.8 mg%, the OP No.2 doctor cannot be held to be negligent as the medical literature stated above does permit the doctor to undertake the operation so long as the blood sugar level is below 350 mg% depending on his best judgment.
The State Commission in its order has extracted the opinion of Guru Nanak Eye Centre which clearly stated that the records did not show any negligence on part of Dr.Bharti in the first operation. Similarly, medical records with regard to the treatment of the complainant in Dr.Pattnaiks Laser Eye Institute nowhere implicate OP No.2 doctor for any deficiency. In fact a careful reading of the opinion of Guru Nanak Eye Centre and Dr.Pattnaiks Laser Eye Institute support the contention of the complainant that subsequent to the successful removal of the cataract on 14.10.1996, the complainant appears to have developed complications with regard to the retinal detachment which has not been attributed to the cataract operation. The retinal dislocation perhaps had not been visible prior to the cataract operation because of opacity but the subsequent complication cannot be said to be arising out of any negligence by OP No.2. For coming to this conclusion, we also rely on the Jacob Mathew case (supra) wherein it has been observed as under :-
48 (1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P.Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three : duty, breach and resulting damage.
In view of the discussions above, the Revision Petition No.627/2006 filed by Bharti Eye Foundation and Anr. is accepted and RP No.477 filed by the complainant Sh. B. K. Sharma for enhancement of compensation is dismissed. Since the complainant is past 85 years in age, the amount of Rs.50,000/- already withdrawn by him under our orders, however, will not be claimed by the respondents in RP/477/2006.
Sd/ (B.N.P. SINGH) PRESIDING MEMBER Sd/ (S.K. NAIK) MEMBER St/19