Delhi District Court
Shri Devi Ram Sharma vs Lok Kalyan Samiti on 4 September, 2015
IN THE COURT OF SH. SIDDHARTHA MALIK, CIVIL JUDGE III TIS HAZARI
COURTS DELHI
SUIT NO. 361/07
DATE OF INSTITUTION : 17.07.2007
DATE ON WHICH RESERVED : 27.08.2015
DATE OF DISPOSAL : 04.09.2015
SHRI DEVI RAM SHARMA
S/O SHRI RATTAN LAL SHARMA
R/O 165/4, PANDIT MOHALLA
VILLAGE MANDAWALI FAZAL PUR
DELHI-110092
...... PLAINTIFF
VS
1 LOK KALYAN SAMITI
11-A VISHNU DIGAMBER MARG
NEW DELHI-110002
THROUGH ITS PRESIDENT
SHRI VISHNU BANDHU GUPTA
2 DR. PUNEET GUPTA
EYE SURGEON
C/O LOK KALYAN SAMITI
11-A, VISHNU DIGAMBER MARG
NEW DELHI-110002
..... DEFENDANTS
Suit No. 361/07 Shri Devi Ram Sharma Vs. Lok Kalyan Samiti 1/13
SUIT FOR RECOVERY OF DAMAGES
JUDGMENT
1. The present suit has been filed by the plaintiff seeking damages to the tune of Rs.1,30,000/- against the defendants for the alleged negligence on the part of the defendants in performing eye operation upon the plaintiff.
2. Briefly stated the case of the plaintiff is that he is a senior citizen and had developed cataract in his right eye for which operation was required. The plaintiff approached the defendant no.1 for the said surgery and was referred to defendant no.2 who started the treatment. A camp was organized by defendant no.1 on 12.04.2007, in which the defendant no.2 operated upon the plaintiff.
3. Thereafter, complications developed due to carelessness and negligence on the part of the defendants, and the defendant no.2 referred the plaintiff on 13.04.2007 to Guru Nanak Eye Centre as an emergency case. The plaintiff approached Icare Hospital and was admitted for five days and was operated again. It is submitted that the plaintiff could only regain 20 percent of his eye sight and had to suffer great pain and stress due to the negligent act of defendant no.2. Hence, the present suit for damages.
4. In the joint written statement on behalf of both the defendants, the defendant submit that the plaintiff was made aware of the risks involved in the surgery on the very first day of his treatment. It is submitted that the defendant no.1 is a charitable eye hospital which organizes camps for providing free medical aid to poor and needy patients and defendant no.2 is a highly skilled doctor who took due care and precision in operating the plaintiff. It is further submitted Suit No. 361/07 Shri Devi Ram Sharma Vs. Lok Kalyan Samiti 2/13 that the risk of dropped nucleus in posterior polar cataract is not uncommon and this fact was informed to the plaintiff before conducting the operation.
5. It is submitted that the operation of the plaintiff was conducted free of cost but the plaintiff failed to comply with the directions given by the defendant no.2. The plaintiff was referred to Guru Nanak Centre but rather went to a private hospital against the medical advise.
6. On the basis of the pleadings following issues were framed on 12.03.2008:-
1 Whether the plaintiff is entitled to the amount as claimed in the suit? OPP 2 Whether the plaintiff is entitled to the interest, if so, at what rate, on what amount and for which period?OPP 3 Relief.
7. In PE plaintiff examined himself as PW-1 and deposed on the lines of the plaint. The son of the plaintiff was examined as PW-2 and his testimony was similar to that of the plaintiff. An official witness from ICARE Eye Hospital was examined as PW-3 regarding the medical record of the plaintiff after he was referred to other hospital by defendant no.2. Dr.Surbhit Chaudhary, who treated the plaintiff after the operation by defendant no.2, was examined as PW-4.
8. In DE, the defendant no.2 was examined as DW-1 and deposed on the lines of the written statement.
Suit No. 361/07 Shri Devi Ram Sharma Vs. Lok Kalyan Samiti 3/13
9. Final arguments were advanced by the parties. I have heard the arguments and perused the record carefully. My issues wise findings are as follows:-
Issue No. 1 & 21 Whether the plaintiff is entitled to the amount as claimed in the suit? OPP & 2 Whether the plaintiff is entitled to the interest, if so, at what rate, on what amount and for which period?OPP
10. It is the case of the plaintiff that the defendant no.2 was careless and negligent in operating upon the plaintiff on 12.04.2007 at an eye camp organized by defendant no.1, due to which the plaintiff suffered substantial damage including further treatment cost and mental agony.
11. The fact of operation upon the plaintiff by defendant no.2 dt. 12.04.2007 is not in dispute. It is further not disputed that the operation of the plaintiff was not completely successful and he was referred to another hospital by defendant no.2 due to 'dropped nucleus in posterior polar cataract'.
12. The only point of dispute is whether the defendants were careless and negligent in operating upon the plaintiff. It is the contention of the defendants that the plaintiff was informed the possibility of 'dropped nucleus in posterior polar cataract' on the very first date of consultation with the defendant no.2. After surgery, the plaintiff was immediately referred to another hospital but the plaintiff did not comply and sought treatment from a private doctor which resulted in delay in treatment due to negligence of the plaintiff himself.
13. From the pleadings it is clear that the allegations of negligence on the part of the defendants can be divided in two categories. The first category is whether Suit No. 361/07 Shri Devi Ram Sharma Vs. Lok Kalyan Samiti 4/13 the defendant no.2, i.e. the doctor performing the operation on the plaintiff, was negligent at the time of the operation or not. The second category is whether the complication arising out of the operation could have been avoided if the defendants were more vigilant and careful.
14. Now, coming to the first aspect of the alleged negligence whether the defendant no.2 performed the operation with negligence or not.
15. To prove his case, the plaintiff has relied upon his own testimony as PW-1 and the testimony of his son as PW-2. Both the testimonies do not offer any substantial insight on the aspect of the alleged negligence. Further, the plaintiff and his son do not have the competence and necessary medical knowhow to depose on the aspect of negligence during the eye operation. The testimony of the plaintiff and his son are relevant on the points which are otherwise admitted by the defendants and do not constitute the issues in dispute.
16. The only relevant testimony on behalf of the plaintiff with regard to the point in issue is that of PW-4 i.e. Dr.Surbhit Chaudhary. PW-4 is a qualified eye doctor who handled the case of the plaintiff after the plaintiff's first surgery on 12.04.2007 when the plaintiff was referred to a retinal hospital.
17. PW-4 has deposed in his chief examination that the post operative treatment of the plaintiff continued for more than 3 years. He has further deposed that he himself operated upon the plaintiff on 16.04.2007 for correcting the complications which arose at the time of the first surgery on 12.04.2007.
18. PW-4 has not disputed that the complication in the first surgery resulted in 'dropped nucleus in posterior polar cataract'. He has deposed that the said Suit No. 361/07 Shri Devi Ram Sharma Vs. Lok Kalyan Samiti 5/13 complication could have been addressed at the time of the first surgery itself if the right equipment and doctor were available.
19. During his cross examination, the witness PW-4 has admitted that the operation performed upon the plaintiff is associated with greater risks as compared to simple cataract operations. PW-4 has further admitted that the said complication may arise after the surgery though the same is not well known.
20. It is important to note at this stage that the witness PW-4 has not attributed any negligence to defendant no.2 either in his chief examination, medical documents relied upon by him or during his cross examination. PW-4 has admitted during his cross examination that there was no negligence on the part of defendant no.2 in the first operation performed upon the plaintiff.
21. From the aforesaid, it is clear that the complication of 'Posterior Polar type of Cataract Operation' was anticipated in the case of the plaintiff. Even if the chances of the complication were rare or common, it is not disputed that the possibility of the complication was present at the time of operation. The plaintiff's own witness PW-4 has stated in his examination in chief that the complication is known in the procedure performed upon the plaintiff. The same fact has been admitted by the witness PW-4 during his cross examination also.
22. Thus, from the plaintiff's own case it is clear that the complication of 'Posterior Polar type of Cataract Operation' was known to the practitioner doctors dealing with cataract surgery. Even though the plaintiff has asserted that the said fact was not disclosed to him prior to the surgery, the fact of medical negligence is to be ascertained as per the medical standards prevailing at the Suit No. 361/07 Shri Devi Ram Sharma Vs. Lok Kalyan Samiti 6/13 time. Thus, even if it is assumed that the risk of complication was not informed to the plaintiff, the said fact is not sufficient in itself to constitute medical negligence.
23. The plaintiff suffered a complication during cataract surgery which was possible during such surgeries. Therefore, a complication which could have occurred did occur in the case of the plaintiff at the time of the operation. The fact that a known complication arose during the plaintiff's operation does not automatically prove that the doctor performing the operation was negligent. The said complication could have arisen in the case of the plaintiff with any other doctor at any other hospital also. There is nothing on record to suggest that the complication of 'Posterior Polar type of Cataract Operation' can only arise due to negligence during cataract operation. Moreover, the plaintiff witness PW-4 has specifically admitted during his cross examination that the complication in the case of the plaintiff did not arise due to negligence on the part of defendant no.2.
24. Thus, the mere fact that a complication arose during an operation does not ipso facto prove that the operation was performed with negligence. A complication can very well arise in the most controlled environment under the supervision of the best of medical practitioners available.
25. The plaintiff was required to prove that the complication of 'Posterior Polar type of Cataract Operation' arose during his cataract operation only because the defendants were negligent and the complication would not have arisen if the defendant no.2 was more vigilant while performing the operation. However, the evidence led by the plaintiff has not been able to prove this fact.
Suit No. 361/07 Shri Devi Ram Sharma Vs. Lok Kalyan Samiti 7/13
26. Thus, it cannot be held that the defendant no.2 was negligent at the time of performing the operation on the plaintiff. As per record, the defendant no.2 performed the cataract operation to the best of his knowledge and skills, but a complication arose at the time of the operation which was anticipated during such surgeries.
27. Now coming to the second aspect the negligence attributable to the defendants which can be classified as administrative negligence. Even though the defendant no.2 was not negligent at the time of performing the operation, the question still remains whether the defendants should have operated upon the plaintiff even after knowing that the complication of 'Posterior Polar type of Cataract Operation' could arise in the case of the plaintiff.
28. Admittedly, the plaintiff had undergone an operation for cataract by defendant no.2 who is a cataract specialist while the complication of 'Posterior Polar type of Cataract Operation' is related to retina.
29. The defendant no.2 during his cross examination as DW-1 has admitted that the defendant no.1 is a cataract surgical hospital and not a retina surgical center. He has further admitted that the complication of 'Posterior Polar type of Cataract Operation' has to be referred to retina center.
30. It is the defendant's own case that the chances of complication of 'Posterior Polar type of Cataract Operation' in the case of the plaintiff were known from the first day itself. It is further defendant's case that the plaintiff was referred to Guru Nanak Hospital after the complication arose as the defendants were not equipped to handle the same.
Suit No. 361/07 Shri Devi Ram Sharma Vs. Lok Kalyan Samiti 8/13
31. In view of the aforesaid, it remains unexplained as to why the defendants chose to operate upon the plaintiff despite having the knowledge that a complication was possible which the defendants did not have the means to handle.
32. The defendants have asserted that the plaintiff was informed regarding the possibility of the complication before the operation. However, none of the documents tendered by the defendants show that the same was communicated to the plaintiff in writing.
33. The defendant no.1 is a hospital while the defendant no.2 is a qualified doctor and both are preparing extensive medical records for all the patients. In the circumstances, it remains unexplained as to why the information of the possible complication does not reflect on the medical prescriptions of the plaintiff.
34. The defendant no.2 has deposed that the plaintiff was verbally informed about the possibility of complication during operation. However, this deposition fails to instill any faith in view of the fact that the defendants are maintaining immaculate records of all dealings with the patients. Thus, there is no reason to believe that the complication of 'Posterior Polar type of Cataract Operation' was not recorded in writing and only informed verbally. A doctor is not expected to verbally inform regarding a complication which can turn the patient blind. The medical record is meant to be maintained with the object that the same can be referred by other medical practitioners if the patient is referred to them in cases of complications.
35. Further, the words 'Posterior Polar type of Cataract Operation' are not prevalent in common language and an ordinary patient is not expected to Suit No. 361/07 Shri Devi Ram Sharma Vs. Lok Kalyan Samiti 9/13 understand and remember them. It cannot be expected that the patient would remember the medical terminology after being verbally informed and will gather the necessary information to assess the risk himself without any assistance from another medical professional.
36. Had the defendants informed the plaintiff in writing of the possible complication of 'Posterior Polar type of Cataract Operation', the plaintiff could have obtained second medical opinion before proceeding with the operation.
37. The defendants have further harped on the fact that the plaintiff had signed consent form before the operation. However, mere signing of consent form would not absolve the defendants of the negligence on their part in dabbling into an operation which was beyond the technical capabilities of the defendants.
38. The filling of consent form by the plaintiff does not mean that the defendants would operate beyond their expertise and means on experimental basis. An ill equipped hospital must not treat a disease only because the patient has consented to the same, especially when other hospitals exist in the city/town to deal with the said disease. Moreover, the consent form is of no use if all the necessary information has not been supplied to the patient. A patient cannot be expected to consent to an operation for which all the risks have not been disclosed in writing to him in advance.
39. From the aforesaid, it is clear that the defendants should not have operated upon the plaintiff knowing fully well that the retinal surgery might be required in plaintiff's case. The defendant no.1 is admitted to be a cataract operation hospital which is not equipped to deal with retina related operations.
Suit No. 361/07 Shri Devi Ram Sharma Vs. Lok Kalyan Samiti 10/13
40. Further, if the defendants proceeded with the operation despite knowing the risks involved and once the operation of the plaintiff had resulted in the complication of the retina, it was the duty of the defendants to arrange for the retina surgery at their hospital itself. The mere fact that the defendant referred the plaintiff to another hospital does not absolve the defendants from their duty towards the patient. The hospital is not expected to abandon the patient if a complication arises during the operation. The defendants could have immediately sought assistance of a retina specialist to address the complication as soon as it arose during the cataract surgery.
41. At this stage it is important to note that the defendants have time and again insisted that the patient was referred to Guru Nanak Eye Hospital and should have visited there only and the act of the plaintiff in consulting some other retina specialist amounts to negligence on the part of the plaintiff.
42. This argument of the defendants goes against the defendants themselves. If the defendants insist that there is only one hospital which could have dealt with the complication, it would also mean that only a few doctors were competent to operate upon the plaintiff and the defendant no.2 was definitely not one of them. This amounts to an implied admission on the part of the defendants that the defendant no.2 was not competent to deal with the complication which could arise during operation of the plaintiff and thus, should not have proceeded with the operation, irrespective of the consent of the plaintiff or not.
43. Though the defendant no.2 was a specialist in cataract surgery he had no means to deal with the complication of the retina which was already anticipated in the case of the plaintiff. Thus, even if the defendant no.2 was vigilant enough to operate for cataract, he should also have been prepared to Suit No. 361/07 Shri Devi Ram Sharma Vs. Lok Kalyan Samiti 11/13 address the complication of 'Posterior Polar type of Cataract Operation' or else should not have proceeded with the operation at all.
44. From the aforesaid discussion it can be inferred that though the defendant no. 2 was not negligent at the time of performing the operation upon the plaintiff, the defendants were not required to perform the operation in the first place as they had the knowledge that the plaintiff's case had the risk of complication of 'Posterior Polar type of Cataract Operation'.
45. Only because defendant no.1 is a charitable hospital and does not charge the patients for cataract surgery does not mean that each and every patient who approaches defendant no.1 must be operated upon. The patients who have higher risks involved at the time of the operation must either be referred to other specialist in the first instance itself or the operation must be performed under the supervisions of the concerned specialist to address the complications, if they arise at the time of the operation.
46. Thus, the plaintiff is entitled to recover the damages for the negligence on the part of the defendants in being ill equipped to deal with the anticipated complication before proceeding with the cataract operation.
47. No reasonable standards exist for assessing the damages for pain, stress or mental agony. The plaintiff has claimed the damages of Rs.1 lakh for the same. Considering the fact that the plaintiff had to undergo treatment for 3 years after the operation which resulted in only partial vision restoration makes it reasonable to award the said damages.
48. The plaintiff has also claimed Rs.30,000/- as expenses for his treatment at Icare hospital after the operation. However, these expenses cannot be Suit No. 361/07 Shri Devi Ram Sharma Vs. Lok Kalyan Samiti 12/13 awarded as the plaintiff would have incurred expenses in the cataract treatment at any other hospital also. The defendant no.1 had operated upon the plaintiff for free but the same procedure would have costed the plaintiff at some other hospital. The plaintiff was already suffering from cataract and the complication of 'Posterior Polar type of Cataract Operation' was expected in his case. Thus, the operation for cataract and the complication were possible at any other hospital also, where the plaintiff had to incur the expenses for treatment. It is not the case of the plaintiff that earlier he was hale and hearty and caught the disease only after the operation for which he had to incur expenses.
49. Accordingly, the plaintiff is entitled to damages of Rs.1,00,000/- alongwith simple interest at the rate of 6% p.a. from 12.04.2007 onwards. The issue nos.1 & 2 are decided accordingly.
Issue No.3 Relief
50. In view of the aforesaid discussion, the suit of the plaintiff is decreed against both the defendants for recovery of Rs.1,00,000/- with simple interest @ 6% p.a. from 12.04.2007 till the date of realization of decreetal amount. Plaintiff is also entitled to costs. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the Open Court today i.e. 04.09.2015 (Siddhartha Malik) CJ (West) III/Delhi 04.09.2015 Suit No. 361/07 Shri Devi Ram Sharma Vs. Lok Kalyan Samiti 13/13