National Consumer Disputes Redressal
Vasant Mehta vs Dr. Kullin J. Kothari Medical on 9 February, 2007
Equivalent citations: II(2007)CPJ263(NC), AIR 2007 (NOC) 1624 (NCC) = 2007 (3) ALJ 739, 2007 (3) ALJ 739
ORDER
B.K. Taimni, Member
1. This complaint has been filed by the complainant Vasant Mehta alleging medical negligence on the part of respondent Dr. Kullin J. Kothari.
2. As per the complainant, on or about 31 st August, 1992 the complainant was operated by the respondent for cataract and intra-ocular lens implant. In or about May, 1995 the complainant visited the respondent's clinic for a routine check-up. The stitches were ordered to be removed by the opposite party, for which he directed one of his associates to do so. It is the case of the complainant that due to negligent and inefficient manner in which the stitches were removed, the complainant developed severe infection at the 'suture removal' site which led to mild endopthalmitis. No local antibiotic was prescribed by the opposite party, which is an instance of 'negligence' on the part of respondent. The complainant was also referred to one Dr. Vatsal who treated him for a few days. Since the infection was not coming under control, the complainant was referred to Shanker Netralaya, Madras. It was the complainant's case that the opposite party himself recorded on 15.6.1995 that the complainant had developed severe infection at the suture removal site leading to mild endopthalmitis and referred the case to Shanker Netralaya. The Shanker Netralaya recorded the same fact but got no relief. Since his vision was getting decreased, the complainant had to visit Shanker Netralaya, Madras second time for which he was referred to Dr. A.M. Selvaraj. In the document produced before us dated 13.7.1995, Dr. Selvaraj observed 'whereas our patient clearly shows that following removal of suture, he has developed a series of infections". Dr. Selvaraj further recorded that scleritis had gone from superior lateral to superior ledial side and that the whole situation needed to be approached as of infective origin. The complainant also relies on the letter dated 14.8.1995 addressed by Dr. S.S. Badrinath of Shanker Netralaya to the complainant's son which recorded that even a small, very minimal-innocuous procedure such as suture removal can trigger the onset of chronic, progressive smouldering scleritis such as what the complainant had. It is in these circumstances a complaint has been filed alleging medical negligence on the part of respondent/opposite party and claiming in all Rs. 25,00,000 by way of compensation.
3. The opposite party upon issue of notice has filed the written version. It is stated before opposite party that the complainant is 70 years old man who had approached him in 1992 for cataract operation with intra-ocular lens implant. The complainant visited in May, 1995 to the respondent's clinic was denied. It was stated that the complainant visited him on 28.4.1995 with complaint of irritation and redness in his right eye. On examination, it was found that suture had become loose and they were removed the same day by one of his associates Dr. Ravi Matani. It was stated by the opposite party that the complainant had not disclosed as to in what manner the respondent or Dr. Ravi Matani was negligent in removing the suture. The complainant informed the opposite party on phone on 2.5.1995 complaint of irritation and redness in his right eye. It was his conclusion that it was on account of infection redness and irritation is being caused for which antibiotic and inflammatory medicines were prescribed. He relies upon the report of Dr. G. Seeta Laxmi, Dr. Selvaraj and Dr. Badrinath of Shanker Netralaya, as according to them it was not a case of infection. They diagnosed the complainant's problem as that of scleritis and which could be on account of several reasons including a simple innocuous procedure like suture removal. No specific instance or action of negligence on the part of the opposite party has been shown; hence this complaint was requested to be dismissed. Both the parties filed affidavit by way of evidence in support of their contentions.
We have heard the learned Counsel for both the parties at length.
4. We find that the basic facts are not in dispute that the cataract surgery and intraocular lens implantation was done on 31.8.1992. It is only after almost three years i.e. sometime in May, 1995 that the complainant visited the opposite party's clinic for a routine check-up and it is at this stage that doctor noted the loose sutures which were ordered to be removed by the opposite party and they were removed by one of his associates Dr. Matani. On one hand the case of the complainant is that the infection was caused during this activity but there is no evidence led by the complainant in support of his this contention. It is settled law that onus of proof lies with the complainant. It is not rebuted that it was only on 28.4.1995 that the complainant came to the respondent's clinic where the looseness in sutures was noted and they were removed the same day by Dr. Matani and it is only in May, 1995 that the complainant again approaches with complaint of irritation and redness. What sort of attention was activated was actively taken up by the complainant during the period from 28.4.1995 to the date in May, 1995 when he alleges the infection is not explained in any manner at any stage by the complainant. It is well recognised that eyes are very sensitive organs and any unhygienic or improper attention or any carelessness on the part of the patient can lead to infection. It is not the case of the complainant that incubation period for the infection to start in such cases is that long i.e. from 28.4.1995 till the date in May, 1995 when he came with the problem diagnosed the infection in May, 1995. The onus also rested on the part of the complainant to prove that the associates of the opposite party, namely, Dr. Matani was negligent and if it was so then in what manner? It is well settled law of medical negligence that the complainant must prove by evidence or through any expert evidence or through medical literature that the doctor concerned was not qualified or was not competent to handle the case and also what he did or what he had, should not have been done resulting in any injury to the patient. No such evidence has been led.
5. If we see the case summary dated 20.6.1995 of Shanker Netralaya, the complainant was 'diagnosed by us as he was having scleral necrosis probably related to the subconjuntival injections'. He was started anti-biotic topically along with collagenase inhibitors. We have also gone through the report of Dr. Selvaraj and more so on the point, which the complainant has raised. This entry in the report of Dr. Selvaraj reads as follows:
Vasculitis is the predominant mode of its expression whereas our patient clearly shows that following removal of suture he has developed a scries of Infection.
(Emphasis supplied)
6. We find no material in this observation to fasten any liability on the part of the opposite party. The word 'following removal of suture' should not be read out of context. It is not in dispute that the suture of the complainant was removed in April, 1995 and infection was detected after a period of 2 to 3 weeks after that. So the word 'following' has to be understood in that term.
Relevant portion of the report of Dr. Badrinath reads as under:
He was reviewed on 19.7.1995. It was felt that the scleritis was immunologically mediated and after consultation with the physician and our scleritis specialist Dr. J Biswas, he was put on tablets cyclophosphamide 50 mg, twice a day. He is responding well to the tablet and has been advised to continue the same for the whole course of cyclophosphamide.
(Emphasis supplied)
7. Final finding was that it was a case of autoimmune scleritis which is not borne out of any infection. In view of this finding, the allegation of negligence resulting in infection does not have any legs to stand on. The learned Counsel for the respondent/opposite party has produced the medical literature in support of the contention as to what scleritis is. According Scott L Portnoy, Ranjit S. Dhaliwal, Rudolph M. Franklin and Deepinder Dhaliwas, scleritis has been described as under:
(a) Scleritis is a relatively rare inflammatory disorder of the clear. Although its prevalence is low, it remains clinically important because of the associated ocular pain, decrease in vision, and possible loss of sight. Also significant is the association of scleritis with serious systemic disease, often autoimmune process.
"The association of scleritis with systemic disease and localised ocular conditions has been well documented and reported. The two main grounds of patients include those with scleritis associated with connective tissue disease and an idiopathic group. In Watson and Hayreh's series, 46% of patients had known associated with systemic condition, with 15% of these having connective tissue disease. Rheumatoid arthritis was present in 10% of patients. In a series of 266 -patients reviewed by Sainz de la Maza and co-workers, an associated systemic disease was found in 57% of patients. Connective tissue and vasculitic diseases were more common, with rheumatoid arthritis being the most common.
Necrotising scleritis is a destructive inflammatory disease of the sclera with serious ocular complications including keratitis, peripheral corneal ulceration and perforation with poor visual prognosis. It is usually associated with systemic diseases in particular the collagen vascular disorders and autoimmune conditions. Surgically induced scleral necrosis (SINS) is a rare form of necrotising scleritis occurring at a site of previous ocular surgery.
(Emphasis supplied)
8. On the other hand in the article titled "Surgically Induced Necrotising Sclerokeratitis (SINS) Precipitating Factors and Response to Treatment", it is mentioned as under:
Scleral inflammation and necrosis are recognised as rare sequelae to ocular surgery with potentially devastating consequences to the eye".
The duration of the latent period between surgery and the onset of scleral inflammation varied from 40 years to the first postoperative day (mean duration 39.6 months).
9. Neither any expert evidence nor any medical literature has been filed by the complainant to counter the material brought on record. Medical negligence as per law laid down by the Supreme Court in catena of judgments, is that doctor owns a duty of care in following terms:
(a) a duty of care in deciding where to undertake the case;
(b) a duty of care in deciding what treatment to give;
(c) a duty of care in his administration of that treatment.
10. The complainant has not been able to show that the opposite party was not competent in taking up his case. As per affidavit filed by the opposite party over the years he has carried out this type of surgery in thousands. Hence, we cannot say that he was not capable of undertaking the case. The surgery was done in 1992. He came with complaint of irritation and redness in 1995. Sutures were removed and medicines were given. Nothing has been shown to us that they were not the proper medicines or line of treatment. Documents filed from Shanker Netralaya as well as Dr. Selvarajat no stage find any case of negligence on the part of opposite party.
11. In the aforesaid circumstances, we find that the complainant has completely failed to prove any case of medical negligence against the opposite party, in view of which we find no merit in this complaint, hence, dismissed.
In the aforesaid facts)and circumstances, no order as to costs.