National Consumer Disputes Redressal
Jaswinder Singh & Anr. vs Dr. Neeraj Sud & Anr. on 24 August, 2011
NATIONAL CONSUMER DISPUTES REDRESSAL, COMMISSION, NATIONAL CONSUMER DISPUTES REDRESSAL, COMMISSION, NEW DELHI FIRST APPEAL No.245 of 2005 (Against the order dated 27.05.2005 in CC No.29 of 1998 of State Commission, U.T. Chandigarh) 1. Jaswinder Singh S/o Sh. Barjinder Singh, Minor through his father as Natural Guardian 2. Sh. Barjinder Singh, Advocate, Sirki Bazar, Bathinda ..Appellants Versus 1. Dr. Neeraj Sud (formerly Sr. Resident, P.G.I. Chandigarh) Now Guru Harkishan Eye Hospital, Sohana, District Ropar, Punjab 2. Post Graduate Institute of Medical Sciences & Research, Chandigarh through its Director Respondents BEFORE HONBLE MR. JUSTICE V.R.KINGAONKAR, PRESIDING MEMBER HONBLE VINAY KUMAR, MEMBER For the Appellants : Mr. B.J. Singh, Advocate For the Respondent No.1 : Mr. Madan Mohan, Advocate For the Respondent No.2 : Mr. Rajesh Garg, Advocate PRONOUNCED ON: 24-8-2011 ORDER
PER MR. VINAY KUMAR, MEMBER This appeal is filed against the judgment of consumer Disputes Redressal Commission, UT Chandigarh pronounced on 27.05.2005 in CC No.29 of 1998. It is seen from the record that the State Commission had earlier decided this matter on 18.10.1999. The matter came in appeal to the National Commission, which remanded case back to the State Commission in its order of 24.3.2004. The impugned order now before us, was passed in compliance with this order of the National Commission.
2. The case of the Complainant before the State Commission was that the Complainant suffered from a congenital disorder in his left eye, which looked a litter smaller than the right one. Except for this physical appearance there was no other defect in his eyes and vision in both eyes was 6/9. He was shown to Dr. J.S. Saini of the eye Department of Post Graduate Eye Institute of Medical Education and Research (hereinafter referred to as PGIMER) and was informed that this physical deformity could be removed by a minor operation. According to the Complainants , it was explained to them as a very minor surgery requiring lifting of the left eye lid a little to make it of the same size as the other eye.
3. The surgery was performed, on 26.6.1996 by OP/Dr. Neeraj Sud. It is alleged in the complaint petition that Dr. Sud lacked the necessary expertise and performed the operation in a most Culpable Negligent manner, resulting in injuries to the Cornea and Eye Ball of left eye of Complainant No.1. With slightest care this could not have happened as the operation to be performed related to a different portion of the eye than the portion injured.
4. The Complainant has sought a compensation of Rs.15 lakhs for his sufferings in addition to another Rs.4.55 lakhs towards a cost of treatment etc. with compensation of loss of studies and for mental agony.
5. The order of the State Commission refers to the ground for remand of the matter by the National Commission and has noted the following towards compliance of the same.
1.) An interrogatory was served on Dr. Neeraj Sud and his response to the same has been considered.
2.) The Medical records of the case have been obtained from PGIMER and taken into consideration.
6. In another development, Dr. J.S. Saini, who had been impleaded as OP No.1 by the Complainant, died in June,2004 and therefore, the State Commission had ordered his name to be deleted from the list of the OPs.
7. Countering the case of the Complainant, the stand of the OPs before the State Commission was that it was not the policy of the Respondents to give any impression to patient about the nature of surgery. In cosmetic procedure on the lids the practice universally is to tell the patient about likely possibility of residual imperfections and potential complications.
8. It is claimed that Dr. Neeraj Sud, then a Senior Resident, who performed this surgery on 26.6.1996, is a qualified Post Graduate in Ophthalmology and had experience of three years in eye surgeries of various types, including surgery for ptosis. During the period 1994-1996, when Dr. Neeraj Sud was Senior Resident at PGI, 74 ptosis operations were done in the department, out of which 21 were done by Senior Residents. The Complainant was provided appropriate treatment. There was no permanent loss of vision, nor any surgical damage to the cornea or eyeball. In the affidavit evidence of Dr. Neeraj Sud, the post-operative condition of the Complainant is explained in the following terms:
Under- correction and recurrence of ptosis is a common complication of congenital ptosis. Recurrence and under correction occur because of a number of reasons like slippage of sutures post-operatively fibrotic changes in an otherwise thin and weak LPS muscles factors which are not always in the hands of Surgeon. In the present case recurrence occurred late after initial successful correction. This can be set right with repeat surgery. The patient had temporary exposure of the Cornea which fully recovered. Temporary corneal exposure was expected and was treated on the expected lines with ointments and drops which have to be applied for a long time especially during night time in these surgeries. This complication was successfully managed. The patient had temporary exposure of the cornea which fully recovered.
9. In response to the above, assertion in the affidavit evidence of Dr. Neeraj Sud, the Complainant states in his rejoinder-affidavit that Neither was the defendant informed about the post-operative complications nor are these normal results of such an operation. The answering respondent is only trying to confuse the whole issue.
10. Thus, it becomes a case of affidavit-versus-affidavit. The State Commission has observed that the Complainants have not led evidence of any independent medical expert and mainly relied upon the record of the PGIMER, in their attempt to prove the case of medical negligence. The Commission also concluded that the Complainant had failed to prove carelessness in the process of treatment of the Complainant or that the OP had adopted any unacceptable medical practice, to substantiate the charge of medical negligence. It held that neither Dr. Neeraj Sud nor PGIMER can be held responsible for negligence in the treatment of the Complainant. It has also observed that Dr. Neeraj Sud possessed the requisite professional competence to perform the surgery. Accordingly, the complaint was dismissed. Hence, the present appeal.
11. In the appeal memorandum, the impugned order is assailed, inter alia, on the ground that the State Commission has not gone into the complications, which are apparent from the record of the respondent. We have heard the two counsels and perused the records of the case. The argument of the appellant counsel was that, before the surgery on 26.6.1996, all parameters were normal. We find that as on 16.4.1996, the medical record of PGIMER shows BEFORE OPERATION Corrected vision in both eyes as 6/9 ( page 140 of Paper Book).
Ptosis-
Moderate ( Page 146 of the Paper Book) No history of double vision ( Page 145 of the Paper Book) AFTER OPERATION On 24.8.1996, it is noted as Severe Ptosis and Ptosis under corrected. Recurred. ( Page 181 of the Paper Book) In fact, Ptosis level before surgery was 3.5mm, as per the affidavit of Dr Sud himself. (Page 95 of the Paper Book). After surgery performed by him, the level had risen to 4.5mm (Page 185 of the Paper Book) On 29.12.1996, the record shows Diplopia in up gaze and straight gaze. (Page 183 of the Paper Book). Diplopia is double vision. Sight of the patient, which was noted above as < 6/9, 6/9, has gone down to 6/9, 6/18 (Page 185 of the paper Book).
12. All these details are all available in PGIMER records, seen by the State Commission. But, the Commission has apparently not examined them in detail. We have also referred above to the interrogatory served on Dr Neeraj Sud and his response. The 13th question therein was Is it possible to correct the increased deformity and complications in the case of complainant No. 1 now?
In reply, he states that Even Guru Nanak Eye Hospital and Daljit Singh Hospital Amritsar, who had examined the patient in August 1999, have not advised surgery. The patient has not been seen or examined by me after January 1997, so no opinion can be offered.
13. This reply, coming from the doctor who performed the surgery in June 1996, was familiar with the condition of the patient till January 1997 and who categorically stated in his affidavit evidence that it could be corrected by repeat surgery, is evasive and unprofessional, to say the least. Comparison of the relevant parameters before and after the surgery, detailed above, clearly shows the extent of damage suffered by the patient due to this surgery. But, no documentary evidence has been led on behalf of the OPs to show what corrective measures were taken. Counsel for the appellant/complainant has emphatically argued that no corrective measures were advised. The only counter argument advanced by the counsel for respondent/OPs was that the State Commission has given no finding on the eventual condition of the patient.
14. On behalf of the Respondents/OPs several decisions of the National Commission have been quoted along with the decision of the Honble Supreme Court in Jacob Mathew Vs. State of Punjab, (2005) 6 SCC 1.
In this decision the Apex Court has defined the scope of medical negligence in the following terms:-
48. We sum up our conclusions as under:-
(1) Negligence is the breach of a duty cause 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.
(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.
(3) 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 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 practices. 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.
(4) The test for determining medical negligence as laid down in Bolams case [1957] 1 W.L.R. 582,586 holds good in its applicability in India.
15. The above view has been reaffirmed in Martin F. D Souza Vs. Mohd. Ishfaq, (2009) 3 SCC 1.
In a more recent decision in Civil Appeal No.5215 of 2010, M/s. Senthil Scan Center Vs. Shanti Sridharan & Anr., pronounced on 9.7.2010 the Apex Court has once again laid down that the proof of negligence must satisfy Bolams Test in the following terms:-
From these general statements it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinary assiduous and intelligent members of his profession in the knowledge of new advances, discoveries and developments I his filed. He should have such an awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations of his skill.
He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his profession would bring, but need ring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon combining the qualities of a polymath and prophet.
16. We need to look at the facts of the present case in the light of the above norms as laid down by the Supreme Court of India. In foregoing paragraphs we have detailed the extent of deterioration that was suffered by the complainant in his left eye, as a result of the surgery. We have also seen the absence of evidence of professional concern and follow up measures that would be required to rectify the damage. It is clear that Dr Sud had the necessary professional qualification to treat the complainant. But, it is equally clear, that he did not bring the requisite skill and care to the treatment as would be expected of an ordinarily competent member of his profession.
17. For the reasons above, we do not agree with the conclusion reached by the State Commission that the charge of medical negligence is not established. The impugned order is therefore, set aside and the complaint allowed. The OPs are, jointly and severally, held liable to pay Rs 3 lakhs as compensation and Rs 50,000/- towards costs, to the Complainants with interest of 6% from the date of the complaint. The entire amount shall be paid within a period of three months, failing which, interest at 9% shall be payable for the period of delay.
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(V.R. KINGAONKAR,J.) PRESIDING MEMBER ..
(VINAY KUMAR) MEMBER s./-