National Consumer Disputes Redressal
Dr.V.V.Sathaye vs Himatlal Girdharilal Singala & Anr. on 7 September, 2011
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.80 OF 2007 (Against the order dated 09.11.2006 in Appeal No.108/2004 of the State Commission, Gujarat) Dr.V.V.Sathaye ..Petitioner Versus Himatlal Girdharilal Singala & Anr. Respondents BEFORE: HONBLE MR.JUSTICE ASHOK BHAN, PRESIDENT HONBLE MRS.VINEETA RAI, MEMBER For Petitioners : Mr.Satyajit Sen, Advocate with Dr.V.V.Sathaye, Petitioner in-person For Respondent No.1 : Mr.Aniruddha P.Mayee and Mr.Charudatta Mahendra Kumar, Advocates For Respondent No.2 : Ms.Pankaj Bala Varma, Advocate Pronounced on 7th September, 2011 ORDER
PER VINEETA RAI, MEMBER The present revision petition has been filed by Dr.V.V.Sathaye (hereinafter referred to as the Petitioner) being aggrieved by the order of the State Consumer Disputes Redressal Commission, Gujarat in Appeal No.108 of 2004 wherein Himatlal Girdharlal Singala and another were the Respondents.
According to the Respondent who was the original complainant before the District Forum, he underwent a cataract surgery in the right eye performed by the Petitioner/doctor on 15.06.1998 by Phako Emulsificatin on payment of Rs.6,500/-. On the day following the surgery, Respondent developed swelling and pain in the operated eye because of complications which did not respond to treatment and eventually he lost complete vision in the right eye.
According to the Respondent this occurred because of negligence on the part of the Petitioner/doctor who did not take due care during the surgery because of which the eye developed infection and Endophthalmitis. Respondent contacted the Petitioner/doctor seeking compensation to which there was a rude response. He also issued a formal notice, which was ignored. Respondent thereafter filed a complaint before the District Forum on grounds of medical negligence and deficiency in service caused by the Petitioner during performance of Respondents cataract surgery and requested that the Petitioner be directed to pay the Respondent Rs.2 lakhs as compensation.
Petitioner has denied the above allegations and stated that the cataract surgery conducted by him was successful and that the Respondent was examined on 16.06.1998 and discharged on that day without any complaint since his condition was satisfactory. The Respondent complained of swelling and pain in the right eye for the first time on 20.06.1998. Had the patient got pain and swelling in the operated eye soon after the surgery, he would not have agreed to his being discharged on 16.06.1998 or he would have visited the Petitioner/doctor with these complaints prior to 20.06.1998.
The complications developed by the patient and his not responding to treatment depends on various factors and it cannot be attributed to Petitioners negligence in performing the surgery. In fact the Respondent did not heed the Petitioners advice and, therefore, he is responsible for any loss and damages suffered by him.
The District Forum after hearing both parties and examining the documentary evidence produced before it allowed the complaint by concluding that the Petitioner was aware of the fact that the Respondent was suffering from diabetes mellitus and it was his duty to have ensured that it was under control before performing the surgery. From the evidence on record it appears that the Petitioner did not undertake even basic precautions like asking the Respondent to get his latest blood report which would have indicated the status of his blood sugar/diabetes. Further, it is medically well known that Endophthalmitis from which the Respondent suffered following the surgery is a complication normally caused if a patient has diabetes mellitus as has happened in the instant case. Had the Petitioner/doctor taken due care before carrying out the surgery, the Respondent would not have lost his eye. The District Forum, therefore, directed the Petitioner to pay the Respondent Rs.2 lakhs as demanded by him within 30 days from the date of this order.
Aggrieved by this order, Petitioner filed an appeal before the State Commission which dismissed the appeal by stating that there was adequate evidence on record that the Petitioner/doctor was fully aware that the Respondent was suffering from diabetes and yet he conducted the surgery without ensuring that steps were taken to control the diabetes.
Hence, the present revision petition.
Learned Counsel for both parties made oral submissions. Learned Counsel for Petitioner who was present along with Petitioner in-person, stated that there was no deficiency in service or medical negligence on Petitioners part and that he successfully conducted the operation on the Respondents right eye. Thus, at the time of his discharge, his condition was normal. It was only on 20.06.1998 that he complained of swelling and pain in the eye which was treated with steroids but unfortunately the patient did not respond to this because of other complications. Further, it is not correct that the Respondent lost his vision because the Petitioner had not diagnosed his diabetes at the time of surgery.
In fact, as per the case papers on record, Petitioner had clearly recorded the fact that he was a diabetic.
However, as an eye surgeon, the diabetes could not be treated by him and was to be treated by a physician. In the instant case, Respondent was being treated by one Dr.Yagnik and that is why the Petitioner when treating the Respondent for the eye infection following the cataract surgery wrote to Dr.Yagnik on 20.06.1998 to adjust the diabetes medicine dosage since Respondent was being administered steroids by the Petitioner to check the infection/swelling. Counsel for Petitioner reiterated that had there been complications after the surgery the patient would not have been discharged and gone home. Further, apart from this, it was pointed out that in the original complaint before the District Forum, Respondent did not make the allegation that he had lost his vision because the Petitioner did not take note of the fact that Respondent was a diabetic. Also the evidence subsequently produced by the Respondent, namely; the document from the M.J. Institute of Ophthalmology does not bear anyones signature and is, therefore, of doubtful authenticity.
Counsel for Respondent on the other hand contended that the Fora below has rightly concluded that it was because of medical negligence of the Petitioner who though aware of the fact that the Respondent had diabetes at the time of surgery, took no precautions to check if the blood sugar levels of the Respondent were under control before conducting the surgery. While it is a fact that the Respondent was under the treatment of a physician pertaining to his diabetes, it is medically well established that it is for the eye surgeon to ensure before undertaking a cataract surgery on a patient that at least two important medical parameters of the patient; namely, the blood sugar and blood pressure are under control. In case these are not within permissible limits the eye surgeon postpones the surgery till such time that these have been controlled through medication and related treatment. Therefore, the contention of the Counsel for Petitioner that it was for the physician to control the diabetes and treat the Respondent and the eye surgeon is not responsible, is not acceptable. Under the circumstances, the Fora below appreciating these facts has rightly concluded that this was a case of medical negligence which led to the avoidable loss of vision in the eye of the Respondent resulting in permanent disability and impairment. The revision petition, therefore, deserves to be dismissed.
We have heard learned Counsel for both parties at length and have carefully gone through the evidence on record.
The fact that the cataract surgery was conducted on the Respondent by the Petitioner is not in dispute nor has it been disputed by the Petitioner that he was aware that the Respondent had diabetes for 7 to 8 years prior to the surgery and he had also duly recorded this fact in the case history. However, there is no evidence on record to indicate that Petitioner took any steps to ensure that the diabetes was under control before undertaking the surgery. While it is a fact that a patient who has diabetes is to be treated by the physician, it is equally well established that it is for the eye surgeon to get the latest status on blood sugar readings and satisfy himself that it is within permissible limits before conducting the eye surgery. It would be relevant in this context to quote from one of the many publications on the subject, viz. Parsons Diseases of the Eye 20th Edition wherein it is clearly indicated that a careful examination of the patient has to be done by the eye surgeon and inter alia this applies, particularly to diabetes, which in this case the Petitioner has failed to do. It was only after the surgery when complications developed that the Petitioner wrote to the Respondents physician to adjust the diabetes dose since he was being prescribed steroids. When we specifically asked the Petitioner who was present in-person, if he could inform us of the precautions taken by him before conducting the surgery since he knew that the patient was a diabetic, he responded by saying that he must have seen readings of the latest blood sugar report before conducting the surgery and these must have been normal. However, when queried further, Petitioner did not give a satisfactory response as to what was the reading of the blood sugar at the time of the surgery or show us any evidence to convince us that he had taken due care to check that the diabetes was under control. In view of these facts, Petitioners taking the plea that the onus to prove his complaint was on the Respondent who failed to do so is of little use. The principles of what constitutes medical negligence are now well established as per various rulings of this Commission as also judgments of the Honble Supreme Court. While adjudicating allegations of medical negligence on the part of a doctor on the touchstone of the Bolams test (Bolam Vs. Friern Hospital Management Committee (1957)1 WLR 582), one of the important question asked is whether the doctor adopted the practice of clinical observation diagnosis including diagnostic tests in the case that would be adopted by such a doctor of ordinary skill in accord with (at least) one of the responsible bodies of opinion of professional practitioners in the field. In the instant case, it is amply clear as discussed above, that the Petitioner/doctor failed to ensure by not diagnosing through the required diagnostic tests that Respondents diabetes was under
control because this is one of the necessary checks required prior to the surgery. The Petitioner was thus guilty of medical negligence which constitute deficiency in service. The Fora below had also reached this conclusion based on the credible evidence led before them which we uphold in toto. The revision petition is accordingly dismissed.
The Petitioner is directed to pay the Respondent Rs.2 lakhs within six weeks from the date of this order failing which Petitioner will be liable to pay interest @ 6% per annum on the entire amount from the date of the orders passed by the District Forum.
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(ASHOK BHAN J.) PRESIDENT Sd/-
(VINEETA RAI) MEMBER /sks/