State Consumer Disputes Redressal Commission
Akash Dora vs Dr. Dinesh Sharma And Another on 24 September, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 252 / 2011
Sh. Akash Dora S/o Sh. Vinod Dora
R/o 11-A, Chukhuwala
Dehradun
......Appellant / Complainant
Versus
1. Dr. Dinesh Sharma
C/o Amritsar Eye Clinic
E.C. Road, Dehradun
2. The New India Assurance Company Limited
75, Rajpur Road, Dehradun
through its Divisional Manager
......Respondents / Opposite Parties
Sh. Sachin Chaudhary, Learned Counsel for the Appellant
Sh. Deepak Ahluwalia, Learned Counsel for Respondent No. 1
Sh. M.N. Mishra, Learned Counsel for Respondent No. 2
Coram: Hon'ble Mr. Justice B.C. Kandpal, President
Mr. C.C. Pant, Member
Dated: 24/09/2012
ORDER
(Per: Justice B.C. Kandpal, President):
This is complainant's appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 31.10.2011 passed by the District Forum, Dehradun, thereby dismissing his consumer complaint No. 46 of 2006, being barred by time as well as on merits.
2. The case is hand pertains to the question of medical negligence and it has to be decided whether or not the opposite party No. 1 - Dr. Dinesh Sharma committed medical negligence in the treatment of the complainant - Sh. Akash Dora.
23. The factual matrix of the case is that when the complainant was young and of tender age, he consulted the opposite party No. 1 with regard to a minor squint problem in his left eye. It is alleged that the doctor assured that the said problem would be completely cured after the operation and on the said assurance, consent for operation was given by the father of the complainant. It is further alleged that even after the operation, the problem did not subside and the condition of the eye of the complainant worsened. When the bandage was removed, it was found that the eye ball of the complainant's left eye had become white. The complainant also developed the problem of vomiting, headache and fainting. It has further been averred that when the problem was brought to the notice of the opposite party No. 1, he acknowledged his mistake and confessed that by his mistake, the operation was not successful. The opposite party No. 1 advised for another operation by Dr. Rajiv Mirchia of Chandigarh. The complainant consulted Dr. Rajiv Mirchia and got himself operated upon and incurred the expenditure of Rs. 1,00,000/-. But even after the said operation, the problem increased manifold. The complainant again contacted the opposite party No. 1, who referred him to Dr. N.N. Sood of Shroff Eye Centre, New Delhi. The complainant contacted Dr. N.N. Sood, but his problem increased. Thereafter, the complainant contacted Dr. Daljeet Singh of Amritsar and Dr. Gupta of Aligarh and spent heavy amount on medicines etc., but to no avail. The complainant has alleged that all the doctors have told him that his eye had been badly damaged by the opposite party No. 1 and now, it can not be cured. Alleging medical negligence on the part of the doctor, the complainant filed a consumer complaint before the District Forum, Dehradun.
34. The opposite party No. 1 - doctor filed written statement before the District Forum and pleaded that the complainant contacted him with a complaint on squint in his left eye and on examination, it was found that the said problem is on account of no vision in his left eye. The doctor was told that the complainant had suffered an injury in his early childhood, which caused traumatic cataract and the doctor advised for operation for cataract. It is further pleaded that there can not be guarantee of 100% success in surgery cases and more so, in traumatized eye cases. The operation was successful, but on the 6th day of the operation, the complainant himself injured his eye, which led to gaping / opening of the wound and massive prolapse (brown portion of the eye came out) of the iris / brown layer of the eye and on account of the said reason, the complainant was advised to consult Dr. Rajiv Mirchia. It has further been pleaded that if the problem of the complainant increased after he was operated upon by Dr. Rajiv Mirchia, the opposite party No. 1 can not be held responsible for the same. It is also alleged that on account of high pressure in the operated eye, the complainant had a tendency of vomiting and headache and for the said reason, he was referred to Dr. N.N. Sood on 29.09.1994, but the complainant consulted Dr. N.N. Sood in the end of January, 1995. It is further pleaded that there is not an iota of evidence to prove that the opposite party No. 1 was negligent in treating the complainant and conducting the operation of his left eye.
5. The opposite party No. 2 - insurance company also filed written statement before the District Forum and pleaded that no cause of action has arisen in favour of the complainant to file the consumer complaint against the opposite party No. 2.
6. The District Forum, on an appreciation of the material on record, dismissed the consumer complaint vide impugned order dated 4 31.10.2011, being barred by time as well as on merits. Aggrieved by the said order, the complainant has filed this appeal.
7. We have heard the learned counsel for the parties and perused the record.
8. We shall first deal with the limitation aspect of the matter as to whether the consumer complaint filed by the complainant was barred by time or not.
9. The consumer complaint was filed by the complainant before the District Forum, Dehradun on 11.09.2006. At the time of institution of the consumer complaint, the complainant did not move any application for condonation of delay in filing the consumer complaint. The application for condonation of delay was moved by the complainant on 08.08.2011. Against the said application, objections were filed by the opposite party No. 1.
10. We may state here that the complainant was operated upon by the opposite party No. 1 on 19.06.1994 and in the consumer complaint, the complainant has alleged that the operation done by the opposite party No. 1 was unsuccessful and his problem was not cured by the opposite party No. 1 and, therefore, the cause of action for filing the consumer complaint has arisen in favour of the complainant on 19.06.1994. As stated above, the consumer complaint was filed on 11.09.2006. In the application moved for condonation of delay, the complainant has stated that on attaining the age of majority and after legal consultation, he sought to file an application for condonation of delay. Sub-section (1) of Section 24A of the Consumer Protection Act, 1986 provides that, "The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is 5 filed within two years from the date on which the cause of action has arisen". It has further been provided that, "no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay". As stated above, the cause of action in the present case has arisen on 19.06.1994. The District Forum has exhaustively dealt with the allegation made by the complainant in the application for condonation of delay that on attaining majority, he moved the application for condonation of delay and has come to the conclusion that the complainant attained the age of majority by the end of the year 2002. The Hon'ble Apex Court in the case of State Bank of India Vs. B.S. Agricultural Industries (I); II (2009) CPJ 29 (SC), has held that, "it would be seen from the aforesaid provision that it is preemptory in nature and requires Consumer Forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The Consumer Forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, 'shall not admit a complaint' occurring in Section 24A is sort of a legislative command to the Consumer Forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the Consumer Forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action". The Hon'ble National Commission in the case of Ketan Consultants Pvt. Ltd. Vs. Suresh Dattaraya Namjoshi; III (2012) CPJ 60 (NC), has held that a person who seeks exercise of judicial discretion of Court or Tribunal in his favour in the matter of condonation of delay, must explain to the satisfaction of Court / Tribunal / Forum that he had "sufficient cause" which prevented him from filing the proceedings within prescribed period of limitation. He must explain each day's 6 delay and show that delay was not intentional or willful which will entitle him to seek judicial discretion in his favour. The expression "sufficient cause" has been held to mean a cause which is beyond the control of the party invoking it. The Hon'ble National Commission in the case of Additional Director, Central Government Health Scheme and others Vs. S.S. Ramachandran; 2011 (2) CPR 33 (NC), pressed into service by the learned counsel for the respondent No. 1 and also cited before the District Forum, has held that, "each day's delay beyond prescribed period of limitation has to be explained satisfactorily by concerned applicant and in the absence of any dates, we are not at all convinced about the explanation put forth by the petitioner in support of the condonation application". In the instant case, as has also been observed by the District Forum, the treatment and operations of the complainant were completed in the year 1995 and he also became major by the end of the year 2002. The District Forum has also observed that the complainant has not disclosed his age in any of his affidavits. Therefore, in view of settled preposition of law, we are of the definite view that the complainant has not been able to show any "sufficient cause" for not filing the consumer complaint within the prescribed period of limitation and the same was not maintainable, being barred by time and the District Forum has rightly held so. We do not find any infirmity in the said view taken by the District Forum.
11. Even on merit, the appellant - complainant has no case. The complainant has alleged that he consulted the opposite party No. 1 - doctor regarding the problem of squint in his left eye and for the rectification / removal of the said problem, he was operated upon by the opposite party No. 1, but even after the operation, his problem did not subside and to the contrary, it increased and he was referred by the opposite party No. 1 to various other doctors, who after examination, 7 opined that the opposite party No. 1 has badly damaged the eye of the complainant and the same can not now be cured. Learned counsel for the appellant argued that the opposite party No. 1 has also adopted wrong diagnosis in the treatment of the complainant and in the case of the complainant, the operation for removal of cataract carried out by the opposite party No. 1 was not required. The medical literature has also been cited by the learned counsel for the appellant and on the basis of the said literature, it has been submitted that the problem of squint can be cured by applying the injection of Botox.
12. Before coming to any conclusion, it would be pertinent to peruse certain landmark judgments on the topic of "medical negligence". The Hon'ble National Commission in the case of Dinesh Kaushal and others Vs. Dr. K.K. Khurana; III (2002) CPJ 297 (NC), has opined that if on perusal of the documents, it comes that the line of treatment adopted by the doctor was not wrong, nor there was any act of negligence or deficiency in service by the doctor, nor the affidavit filed by the complainant show that the line of treatment given by the doctor was contrary to the settled norms in the medical profession, then there was no negligence or deficiency in service by the doctor and the complaint deserve to be dismissed. The Hon'ble Supreme Court in the case of Jacob Mathew (Dr.) Vs. State of Punjab and another; III (2005) CPJ 9 (SC), cited by the learned counsel for the appellant as well as the learned counsel for respondent No. 1, has clearly observed in sub-para (3) of para 49 that, "a professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person 8 exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practises. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence". The Hon'ble Supreme Court in the aforesaid judgment has also discussed in para 22 the Halsbury's Law of England (Fourth Edition, Volume 30, Para 35), in order to evaluate the degree of skill and care required by a medical practitioner in the following words:
"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."
13. The Hon'ble Supreme Court's judgment in the case of Jacob Mathew (Dr.) (supra), has been followed by the Hon'ble Apex Court 9 in the case of Martin F. D'Souza Vs. Mohd. Ishfaq; I (2009) CPJ 32 (SC) = 2009 (1) CPR 231 (SC), cited by the learned counsel for respondent No. 1. In the said case, the Hon'ble Apex Court has held as under:
"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 and others Vs. State of Maharashtra and others; AIR 1996 SC 2377, or operated 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.
44. The standard of care has to be judged in the light of knowledge available at the time of the incident and not at the date of the trial. Also, where the charge of negligence is of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time.
46. There may be a few cases where an exceptionally brilliant doctor performs an operation or prescribes a treatment which has never been tried before to save the life of a patient when no known method of treatment is available. If the patient dies or suffers some serious harm, should the doctor be held liable? In our opinion he should not. Science advances by experimentation, but experiments sometime end in failure eg. the operation on the Iranian twin sisters who 10 were joined at the head since birth, or the first heart transplant by Dr. Barnard in South Africa. However, in such cases it is advisable for the doctor to explain the situation to the patient and take his written consent.
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 straightaway 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.
54. In para 52 of Jacob Mathew's case the Supreme Court realizing that doctors have to be protected from frivolous complaints of medical negligence, has laid down certain rules in this connection:
(i) A private complaint should not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor.
(ii) The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion, preferably from a doctor in Government service, qualified in that branch of medical practice who can normally be expected to give an impartial opinion applying the Bolam test.11
(iii) A doctor accused of negligence should not be arrested in a routine manner simply because a charge has been leveled against him. Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest should be withheld."
14. Hence, in view of the para 22 as well as sub-para (3) of para 49 of the decision given by the Hon'ble Apex Court in the case of Jacob Mathew (Dr.) (supra), the appellant does not get any advantage of the arguments advanced by his learned counsel.
15. The District Forum has considered the plea of wrong diagnosis raised by the complainant, which as rightly been objected by the learned counsel for respondent No. 1 on the ground that no such plea has been taken in the consumer complaint. On perusal of the material on record and also after going through the medical literature cited before us, as was also cited before the District Forum, we are of the definite view that no wrong diagnosis was done by the concerned doctor. Secondly also, none of the doctors who have been consulted by the complainant after his operation by the opposite party No. 1, have pointed out any negligence on the part of the opposite party No. 1 either in diagnosing his problem or in treating the problem of the complainant. There is also nothing on record to show that the opposite party No. 1 did not exercise the skill possessed by him to the best of his ability and even the doctors consulted by the complainant have also confirmed that the line of treatment adopted by the opposite party No. 1 in the case of the complainant was correct and the said doctors also prescribed the same medicines, as prescribed by the 12 opposite party No. 1 and there was no deviation from the prescribed line of treatment.
16. This apart, the material available on record shows that the operation of the complainant performed / conducted by the opposite party No. 1 was successful, but on account of the injury caused by the complainant to his eye, the things went wrong. It is also pertinent to mention here that the complainant himself has been negligent. As stated above, the complainant was advised by the opposite party No. 1 to consult Dr. N.N. Sood on 29.09.1994, but the complainant visited the said doctor in the end of January, 1995, when it was too late. In the consumer complaint, it has been averred that the complainant had a tendency of headache and vomiting, which are the symptoms of high pressure in the eye and the same is indicative of glaucoma and as per the medical literature, if the patient of glaucoma is not cured, he could be completely blind in a period of 2-3 months. It is further pertinent to mention here that no surgery can be guaranteed to be 100% successful and there are chances of failure in every surgical case and as per the settled law, if the doctor has adopted the correct line of treatment and the things went wrong, in such cases, the doctor can not be held guilty of medical negligence. It is also a settled law that a surgeon can not and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated upon. So far as the treatment of squint by applying Botox injection, as has been mentioned in the medical literature cited by the learned counsel for the appellant is concerned, the said line of treatment is a latest technique to tackle the problem of squint and the same was not existing on the date of treatment of the complainant by the opposite party No. 1 and, therefore, the opposite party can not be held negligent for not adopting the said technique and 13 going for surgery for removal of the problem faced by the complainant.
17. Learned counsel for the appellant also cited another decision of the Hon'ble Apex Court in the case of Samira Kohli Vs. Prabha Manchanda (Dr.) and another; I (2008) CPJ 56 (SC). In the said decision, it has been held that performance of surgery without taking consent is an unauthorized invasion and interference with patient's body amounted to tortious act of assault, battery and deficiency in service on the part of the doctor. This aspect of the matter has been discussed by the District Forum at page Nos. 16 and 17 of its judgment and it has been rightly concluded that consent form for surgery was signed by the father of the complainant and the parents of the complainant were made fully aware of the situation of the complainant and the operation was performed with their consent.
18. In the present case, the complainant has not produced any evidence to show that the opposite party No. 1 has been negligent in his treatment or the surgery performed by the opposite party No. 1 went unsuccessful on account of any negligence on the part of the opposite party No. 1. The Hon'ble National Commission in the case of Pushkar Dutt Vs. Christian Medical College and Hospital, Ludhiana and another; I (2010) CPJ 1 (NC), pressed into service by the learned counsel for respondent No. 1, has held in paras 12 and 15 as under:
"12. By now, it is a well settled preposition that onus of proof in medical negligence is on the complainant who alleges medical negligence. No medical expert / evidence has been led by the complainant to substantiate the allegation of medical negligence that whatever was done by the 14 Hospital was not as per expected medical practice.
15. In case, the doctor brings in his task of providing medicine a reasonable degree of skill and knowledge and exercise the same to a reasonable degree, then, the medical practitioner can not be held guilty of the medical negligence only because someone else of better skill and knowledge would have given different treatment or operated in a different way. It has not been shown by leading any evidence that the line of treatment adopted by the respondents was not in line with the medical practitioners."
19. Learned counsel for respondent No. 1 also cited another decision of the Hon'ble National Commission in the matter of Kanhaiyalal Dubey Vs. Dr. Sanjay Jain; III (2010) CPJ 217 (NC), in which it has been held that, "even lack of care or error of judgment or accident is not a proof of medical negligence".
20. For the reasons aforesaid, we are of the definite view that no case of medical negligence is made out against the opposite party No. 1 and the complainant has not been able to prove by producing any cogent and reliable evidence that the opposite party No. 1 made any negligence in his surgery or treatment and the view to this effect taken by the District Forum, does not warrant any interference by this Commission in its appellate jurisdiction. The District Forum has rightly dismissed the consumer complaint even on merits and the order impugned passed by the District Forum is fit to be confirmed and the appeal is liable to be dismissed.
21. In view of above, appeal is dismissed. No order as to costs.
(C.C. PANT) (JUSTICE B.C. KANDPAL) K