State Consumer Disputes Redressal Commission
The Senior Executive, Administration, ... vs Smt. Mridula Ghosh on 22 September, 2009
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. : FA/08/274 DATE OF FILING : 15.07.2008 DATE OF FINAL ORDER:
22.09.2009 APPELLANTS
1. The Senior Executive, Administration, Apollo Gleneagles Hospitals 58, Canal Circular Road, P.S. Phoolbagan, Kolkata-700
054.
2. Dr. Ajay Kumar Arya, MBBS, FRCS Sr. Consultant ENT Surgeon Apollo Gleneagles Hospitals 58, Canal Circular Road P.S. Phoolbagan Kolkata-700
054. RESPONDENTS Smt. Mridula Ghosh Wife of Sri Gautam Ghosh 145, Indra Biswas Road P.S. Tala Kolkata-700
037. BEFORE : MEMBER : MR. P.K.CHATTOPADHYAY MEMBER : MR. S.COARI FOR THE APPELLANTS : Mr. P.K.Basu, Ld. Advocate FOR THE RESPONDENT : Mr. H.Brahmachari, Ld. Advocate : O R D E R :
MR.
P.K.CHATTOPADHYAY, LD. MEMBER This Appeal along with counter-Appeal No. FA/08/295, both of which were heard analogously, arose out of the same judgement dt. 30.5.08 in DCDRF, Kolkata Unit-II in Complaint Case No. CDF/Unit-II/439 of 2005, where the case of the complainant, Mrs. Mridula Ghosh, wife of Mr. Goutam Ghosh, against (i) The Senior Executive, Administration, Apollo Gleneages Hospitals, 58, Canal Circular Road, Kolkata-700 054 and (ii) Dr. Ajay Arya, Sr. Consultant, ENT Surgeon, Apollo Gleneagles Hospitals, 58, Canal Circular Road, Kolkata-700 054, related to medical negligence caused upon her. The complainant stated that she was suffering from nasal obstruction in the month of February, 2004 and on recommendation of her house physician for check-up by a qualified ENT Specialist she went to Apollo Gleneagles Hospital on 18.3.04 with her husband for thorough check-up by an ENT Specialist and got her name registered as an out-patient and paid a sum of Rs. 50/-. She was then referred to Dr. A.K.Arya for consultation and on the same day Dr. Arya examined the complainant at the said hospital and diagnosed that she was suffering from Polypnasopharynx /FESS when her complaints were nasal obstruction, headache, cold/rhinorrhoea and mouth breathing. After checking she was advised by Dr. Arya for a micro-surgery operation called Nasal Polypectomy/FESS and it was assured that after the said operation she would be fully cured and her complaint of nasal congestion and mouth breathing would be over. The complainant was further advised by OP No. 2 for admission at the said hospital on 22.3.04 at 8.30 A.M. and the given surgical intervention was proposed to be done on the same day, i.e. 22.3.04 at 12 noon. On the same day (18.3.04) Dr. Arya prescribed certain medicines and advised for CT/PNS Scan, various blood tests and ECG to be undertaken before the given operation. The complainant accordingly underwent all these tests and on 22.3.04 got herself admitted in the hospital when the operation was undertaken.
Prior to the operation the complainant was quite fit and healthy except nasal complaint and suffered neither blood pressure or diabetes and she had no problem with her eyes when her power on both the eyes were +o.25 (distance) and the Near Additions were +1.25 (bifocal lens) with vision rating at 6/6 on both eyes which was absolutely normal. This power was existing just before the said operation on 22.3.04. Once the surgical operation was done on 22.3.04 by Dr. Arya at the Apollo Hospitals under general anaesthesia it was found that During the said operation at the operation Theatre (OT) Dr. Ajay Arya was so negligent and careless that he caused an injury to the right eye of the complainant during surgery resulting loss of vision in right eye. While operating polyps on right naso pharynx Dr. A.Arya negligently cut down the right medial wall of the orbit just posterior to the globe. In the Discharge Summary dated 24.03.04 issued by the Registrar of Apollo Gleneagles Hospital (OP No. 1) it has been clearly stated that perception of light on the right side could not be appreciated by the patient. There was evidence of right conjuctival haemorrhage. Right optic nerve shows Oedema. Stating that one Dr. J.Raman was called in the OT by OP No. 2, it was pointed out that no opinion or any report of the said Dr. J.Raman was provided in the Discharge Summary. A neurosurgical opinion was taken from Dr. L.N.Tripathi which showed, according to him, right optic nerve dysfunction and medial rectus paresis. Finally the Discharge Summary stated that there was No vision RE (PL-), LE (Normal vision). Moreover, the Hospital Authority was so reluctant, careless, inhuman and a money-making institution that it did not advise any suggestive measure for rectification of the loss of a valuable important human organ which occurred during the complainants stay in the hospital and the hospital simply prescribed one Ciplox eye ointment to be applied twice daily. After the given surgical operation of right nasal polyp, number of tests were conducted at Apollo Hospital like biopsy of right nasal polyp and MRI scan orbits.
Although there was no evidence of malignancy in the specimen produced, the findings of MRI scan orbits mentioned of mild proptosis of right eye seen which is mildly displaced globe laterally and overall impression on this report stated, patient is an immediate post operative case of FESS, developed sudden loss of vision on right. On 26.3.04 OP No. 2 namely Dr. Arya, made a post-operative check-up and issued a prescription for one week only. He was silent about the damaged eye which occurred during the surgical operation done by him. Alleging that there was negligence and serious deficiency in service on OP Nos. 1 & 2, who were jointly and severally liable for this in not treating a patient at desired and expected level causing total damage of the right eye of the complainant, it was stated that this was specially so when they were charging higher consideration than other hospitals for such a minor operation and when the OP No. 1 billed for an amount of Rs. 36,419.18 to the complainant. Being disappointed with the attitude of the OP Nos. 1 & 2 the complainant then went to Dr. P.K.Chatterjee, an eye specialist, and her house physician Dr. S.K.Ghosh, who advised her to contact Rotary Narayana Sankara Nethralaya, CN-5, Sector-V, Salt Lake, Kolkata and the complainant then went to said Rotary Narayana Sankara Nethralaya for treatment. But they did not give any assurance of recovery for the lost right eye. The complainant then rushed to Sankara Nethralaya in Chennai where Dr. Geetha Kokthari treated her, but ultimately she opined that the damage of her right ye was irreparable. On 2.4.04 the complainant underwent CT scan-orbits and PNS (Plain) at Vita Diagnositics Ltd. in Chennai and the report stated that There is evidence of dehiscence of the right medial wall of the orbit just posterior to the globe the medial rectus is not visualized at this level. It was stated that it revealed that the damage of the complainants right eye was due to the faulty operation done by Dr. Arya, OP No. 2 at OP No. 1s hospital. Thereafter being totally disheartened the complainant wnt to Dr. Agarwals Eye Hospital at 19, Cathedral Road, Chennai, to have her right eye checked up, where the Report dt. 11.4.04 stated that She could not perceive any light in the right eye but her visual actively was 6/6p in the left eye. Examination showed restricted adduction in the right eye.
The right pupil was not reacting to light.. CT scan of the orbits was suggestive of dehiscence in the medial wall of right orbit with disruption of medial rectus. Following that with tremendous mental agony the complainant moved from one doctor to another towards recovery of her damaged right eye for the sake of her livelihood for rest of her life and spent more than Rs. 50,000/- towards treatment of her right eye including travelling expenses from Kolkata to Chennai and back. Stating that CT Scan and other reports revealed that doctrine of res ipsa loquitur was applicable in this case it was pointed out that OP No. 2, Dr. Ajay Arya was guilty of negligence as he failed to demonstrate reasonable degree of skill and knowledge and failed to take reasonable care while treating his patient namely the complainant. Finally on 8.11.05 the complainant visited Dr. M.Dasghosh, eye specialist, in Kolkata for his valuable opinion and after thorough examination of both the eyes he opined that the left eye pupil was active and the vision within normal limit while the right eye divergent due to medial Rectus palsy and the vision was Nil. Dimvision rather loss of vision with divergence in right eye since operation of nasal polypectomy under GA on 22.03.2004. Treated for months since then but with no recovery of vision in right eye. The complainant was specifically advised (A) Not to undertake too much of near work, like reading, writing, sewing etc., (B) Not to lift heavy weight with jerks, and (C) To avoid pressure on only working vital left eye. Stating that the complainant was totally dependent on her left eye it was pointed out that she was suffering from tremendous mental agony and anxiety resulting in an abrupt increase of her blood pressure which might cause cardiac attack at her middle age, when the doctrine of proximate cause was applicable in this case. Stating that she became so much sick that she could not perform her teaching classes as well as her household duties due to sudden loss of a vital human organ, the complainant prayed for exemplary damage and compensation U/S 14(1) of the Consumer Protection Act, 1986 as amended, where the cause of action arose on 22.3.04 and was still continuing. Accordingly, the complainant prayed for direction upon the Ops to pay damage of Rs. 8,00,000/- for permanent loss of right eye due to a faulty operation of nasal polypectomy/FESS, not connected with eye surgery and also for direction upon the Ops to pay compensation of Rs. 1,00,000/- for tremendous mental anxiety and agony suffered by the complainant and further to pay Rs. 50,000/- towards cost and expenses incurred for the treatment of the right eye at different hospitals including cost of medicines, etc. and for a direction upon the Ops to pay cost of the suit and for any other order as deemed fit.
The OP No. 1 namely Apollo Gleneagles Hospitals, entered appearance before the Ld. Forum and stated inter alia that the complainants observation of minor surgical operation was her own finding not reflected in any advice or prescription and that the state of health of the complainants eyes or its lens power, etc. were not within the knowledge of the OP No. 1 since the same was neither questioned nor noted anywhere in the clinical finding. Stating that the fact loomed large that post-operative MRI Scan, so done on 22.3.04 to the patient, i.e. immediately after the operation on the same day, showed right optic nerve was normal in course and visualized in entire length. Had it been a cut down of the right medial wall of the orbit just posterior to the globe as alleged, the MRI report would have been totally a different one. Since there was some evidence of right conjunctival haemorrhage, Dr. Ajay Arya, the OP No. 2, immediately sought assistance of Dr. J.Ramana, a senior consultant and eye specialist and eye surgeon of OP No. 1.
Dr. Arya also called Dr. L.N.Tripathi, a senior consultant Neurosurgeon in OP No. 1s hospital. All possible medical steps were taken accordingly.
At the time of discharge, upon enquiry from the complainant it was written, No vision RE(PL-), LE (Normal Vision) and it was stated that the OP No. 1 was never careless or reluctant in providing proper treatment to the patient and the allegation that its act was inhuman or it was a money-making institution, was unfounded. Further stating that there had been no cut in the right orbit nerve it was pointed out from Scott-Browns Otolaryngology 6th Edition, where Rhinology has been discussed in Volume-4 clearly stating that Endoscopic moruspialization offers the advantage of avoiding a scan and are associated with less diplopia as the trochlea is not disturbed and bone remodelling may mean complete orbital respositioning is less immediate.
Referring to allegations in Para-10 and 14 of the complaint it was submitted that these were frivolous and motivated having mis-interpretation purposely made and it was stated that the bill for the surgical operation was not 3,64,191.18 as alleged by the complainant, but the bill amount was 38,191.18 less receipt of Rs. 422.00 and less discount of Rs. 1,350.00. The total amount was Rs. 36,419.18. Stating that the report of Rotary Narayana Netralaya did not give any assurance alleged by the complainant nor there was any statement on the cause or the procedural aspect of the treatment of eye, the OP No. 1 submitted that CT scan done on 2.4.04 repeated the MRI finding on 22.3.04 that the medial rectus muscle was stated to be damaged, but the optic nerve was intact. Thus no injury or cut in optic nerve was found when it was pertinent to mention that medial rectus muscle injury might cause at best diplopia but not loss of vision. Even Dr. Agarwals Eye Hospital said the same thing on the injury to medial rectus muscle and not loss of vision and for this reason the complainant purposely withheld all the prescriptions and treatment summary of Sankara Nethtralaya.
Referring to Para-17 of the complaint it was submitted that there was no question of application of res ipsa loquitur when complete treatment papers with discharge summary and diagnostic reports and other details were provided to the complainant by the OP No. 1 and the actual cause of loss of vision was sought not to be revealed towards misleading the Ld. Forum by the complainant. Alleging that the complainant approached the Ld. Forum with unclean hands it was pointed out that in absence of any expert evidence or contemporaneous medical treatise the complaint was devoid of any merit and therefore, the same was liable to be dismissed summarily with cost. It was also stated that in absence of proper quantification of damage the complaint case was not maintainable.
The OP No. 2 in the Ld. Forum below namely Dr. Ajay Arya, in his written version stated inter alia that the allegations of the complainant were false, frivolous and motivated and the OP No. 2 sought leave to adopt the comprehensive written version filed by the OP No. 1. Stating that all medical documents as relevant, like diagnostic reports, treatment sheet, discharge certificate, etc. were provided to the complainant including scan report where it was specifically mentioned that Right optic nerve is normal in course and visualized in entire length and, therefore, the question of any cut in such right optic nerve would not arise at all and thus the maxim of res ipsa loquitur upon the doctor cannot be asked. Stating further that as per settled law on medical negligence it was required to be clearly pointed out as to which action of the doctor was not as per accepted medical practice and what was done should not have been done and what was not done should have been done and this is required to be supported by competent expert evidence or available medical literature on this subject. Contending that no such averment was there in the complaint it was submitted that the complainant signally failed to provide either expert medical evidence or supporting medical literature in support of the allegation. Stating that it was for the complainant to prove the causes to negligence it was submitted that none of the super-speciality hospitals and/or medical centres made any oblique remark(s) or raised any finger with regard to the conduct of the OP No. 2 in handling such Nasal Polypectomy/FESS. Arguing that no proper quantification of damage was made by the complainant, it was submitted that the damages as claimed in the complaint was not maintainable. Concluding that the complainant tried to make out a case alleging that due to cut in the optic nerve, her vision in the right eye was lost when the MRI report and CT scan clearly showed that there was no such cut as alleged or had occurred in the right optic nerve of the complainant during surgery and, therefore, the complaint was sought to be dismissed with cost.
The matter was heard from respective sides with evidence being filed and after exchange of respective WNAs, when the Ld. Forum below passed its judgement and order as under :-
That the complaint u/s 12 of the C.P.Act, 1986 be and the same is allowed on contest with a cost of Rs. 5,000/- (Rupees five thousand only) payable to the complainant by the Ops.
The complainant is also entitled to get a claim of damage to the tune of Rs. 5,00,000/- (Rupees five lakhs only) along with a further compensation of Rs. 50,000/- (Rupees fifty thousand only) due to her mental agony.
The OP No. 1/Apollo Gleneagles Hospitals and OP No. 2/Dr. Ajay Arya are directed to make payment of the decretal amount to the complainant within a period of one month from the date of this judgement failing which the complainant will be at liberty to file an execution petition before this Forum in accordance with law.
Being aggrieved by the impugned judgement and order of the Ld. Forum below there were two Appeals filed under numbers FA/08/274 and FA/08/295 by contending parties when in Appeal No. FA/08/274 the OP Nos. 1 &2 in the Forum below and Appellants here, stated inter alia that the Ld. Trial Forum knew fully well that there was no evidence of any medical expert filed by the complainant/Respondent to substantiate her case and that apart, no authoritative medical text or contemporaneous medical literature was filed by the complainant and as per settled principle of law, in such a case it was the specific directive of the Honble National Commission as reported in 2006 CTJ Page-662 (NC) that a case of medical negligence has to be proved by proper medical expert evidence and it cannot be based on mere statement of a patient. Stating further that the impugned judgement and order so passed was erroneous on fact and in law and that the same was based on mere surmise and conjecture in absence of specific proof of negligence against the doctor and the hospital, it was further submitted that an affidavit was filed on behalf of the complainant on 19.12.05 wherein it was stated that original test reports were not in her possession and once the same were available these would be produced, but in course of the entire proceeding these papers were not produced. Stating that the settled principle of law was that the petitioner/complainant is to succeed on the strength of his own case and not on the weakness of the defence, it was stated that the initial onus was upon the complainant to prove that OP Nos. 1 & 2 were indeed negligent and treatment in their approach causing deficiency of service on the Respondent and in the present case there was no medical literature or expert report cited from which it could be evident and proved that the allegations of the complaint were true and correct. Referring to decision in 2004 CTJ 175 (NC) and also in 2003 (3) CPR 110 (NC) it was pointed out that no specific act of deficiency of service and/or negligence was alleged and proved in the matter of the complaint when immediately after the surgical operation the MRI scan showed Right optic nerve is normal in course and visualized in entire length and the report of the CT scan done on 2.4.04 corroborated this finding of 22.3.04. Referring to damage in the medial rectus muscle it was pointed out that no injury or cut in optic nerve was found when medial rectus muscle injury at most might cause Diplopia but not loss of vision. Referring to reports of Dr. Agarwals Eye Hospital it was submitted that this was the reason the complainant purportedly withheld certain prescriptions and treatment summary before the Ld. District Forum when entire treatment sheets and discharge summary with diagnostic report was provided to the Appellant/Complainant. Stating that reports of Sankara Nethralaya as also Agarwals Clinic have no contrary finding either on the MRI report taken immediately after surgical operation and CT scan report dt. 2.4.04 it was submitted that no contrary authoritative medical text was placed either by the complainant to nullify the reference of Scott-Browns Otolaryngology Sixth Edition where Rhinology has been discussed in Volume 4 as under :-
Endoscopic maruspialization offers the advantage of avoiding a scan and are associated with less diplopia as the trochlea is not disturbed and bone remodelling may mean complete orbital respositioning is less immediate.
Referring to judgement in 2005 CTJ 1087, 2005 CTJ 501, 2003 (3) CPR Page-110, 2007 CTJ 727 (NC) it was contended that the impugned judgement was bad in law and, therefore, was liable to be set aside.
The Respondent namely Smt. Mridula Ghosh, in her response reiterated the fact of the case and stated inter alia that the Respondent lost her complete vision on her right eye, when prior to her admission at the hospital of Appellant No. 1/OP No. 1 she was quite fit and healthy without having blood pressure or blood sugar with normal eye sight and vision rating 6/6 both eyes except nasal complaint, for which she was advised an operation. The Respondent paid Rs.
36,419.18 towards expenses and after initial clinical tests on 18.3.04, on 22.3.04 the Appellant No. 2/OP no. 2 namely Dr. Ajay Arya, post admission in Hospital, conducted the said surgical operation of Nasal Polypectomy FESS / Right ethmoidectomy under general anaesthesia.
During the said operation the doctor was so negligent and careless that he caused injury to the right eye resulting in complete loss of vision immediately after the operation itself, when to cover up the situation Dr. Arya called Dr. J.Raman, eye specialist, and Dr. L.N.Tripathi, Neurosurgeon, at the operation theatre for their opinion and advice. Both of them opined that there was an injury to the right eye during surgery and as a result, the Respondent lost vision in the right eye with right optic nerve dysfunction and medial rectus paresis and quoted from the Discharge Summary issued by the hospital authority dt. 24.3.04 that There was an injury to right eye during surgery with complaints of loss of vision in right eye. Dr. J.Raman was called into the theatre by Dr. A.Arya. Perception of light on the right side could not be appreciated by the patient. There was evidence of right conjuctival haeomorrhage. Right optic nerve shows oedema. Bulky right superior, inferior lateral rectus. Medical rectus has been pushed medially. No evidence of retrobulbar collection. Referring to Neurosurgical opinion taken from Dr. L.N.Tripathi it was pointed out that the same noted Right optic nerve dysfunction and medial rectus paresis with no vision RE (PL) and LE (Normal Vision) and the MRI Scan report dt. 22.3.04 with finding as under :-
Findings Mild proptosis of right eye seen which is mildly displaced globe laterally. Medial wall of right orbit not visualized properly with direct continuation of disease process seen within the right orbit from right nasal cavity Impression Patent is an immediate post operative case of FESS, developed sudden loss of vision on right ..
Referring to the subsequent opinion of Eye Specialists like Dr. P.K.Chatterjee, Rotary Narayana Sankara Nethralaya, Salt Lake, Kolkata, Dr. Agarwals Eye Hospital, Chennai and Dr. M.Das Ghosh of Kolkata it was stated that none of them had given any assurance of recovering the lost eye sight when the damage of her right eye was irreparable and, therefore, it was evident from the face of the records that only due to injury and incision caused by Dr. Ajay Arya, the Respondent lost her vision in the right eye due to faulty and negligent operation of Nasal Polypectomy/FESS, on which the principle of res ipsa loquitur was very much applicable. Stating that Dr. M.Das Ghosh, Eye Specialist, having advised the Respondent not to undertake too much of near work like reading, writing, swimming, etc. and not to lift heavy weight with jerks to avoid pressure for working only on vital left eye, the Respondent was required under compulsion to conduct her life in a very restrictive way resulting in loss of her income for her livelihood and she was also required to carry on like this for the rest of her life as there was no possibility of any improvement of her condition.
Contending that Dr. Ajay Arya never advised as to the problems and risks likely to arise in such a major operation done under GA or his discharging the Respondent on 24.3.04 in given state of severe injury/damage in the right eye without referring the case to any Eye Specialist or not providing any suggestive measure for rectification of her loss of vision amounted to an act of utmost negligence and deficiency of service when Dr. Ajay Arya or Dr. Raman, the Eye Specialist, or Dr. L.N.Tripathi, the Neurosurgeon, had given any opinion or provided any evidence for immediate loss of the eye sight following the injury to the right eye of the Respondent, which again was caused by negligent and deficient act of the Appellant No. 2 and, therefore, as in 2006 (1) CPR 38 (NC) in Revision Petition No. 1486 of 2001 (Dr. Shyam Kumar Vs. Rameshbhai Harmanbhai Kachhiya) the Honble Supreme Court finding that in such case principle of res ipsa loquitur could be applied and that once the initial burden was discharged by the Respondent/Complainant by making out a case of negligence, then the onus shifts on to the hospital or to the attending doctor to specify the court. Referring to Criminal Appeal No. 144-145 of 2004 Jacob Mathew Vs. State of Punjab, it was pointed out that the said judgement was delivered to protect the doctors from arrest U/S 304A IPC resulting in death of a patient when the instant case was under the provisions of Consumer Protection Act and not under Penal Code and also in 2009 1 CPJ 32 SC Martin F.Dsouza Vs. Md. Isaq when the Honble Apex Court held that Judges are not experts in medical science but rather they are laymen.. and Judges have usually to rely on testimonies of other doctors which may not necessarily in all cases be objective since like in all professions and services doctors too sometimes have a tendency to support their own colleagues who are charged with medical negligence. Outlining the components of negligence and dwelling on duty, breach and resulting damage reference was made to discharge summary issued by the hospital and the ingredients were analysed. Accordingly, the Respondent supporting the finding of the Ld. Forum below prayed for affirmation of the impugned judgement and order, but also submitted that in consideration of reckless action of the Appellant and the suffering from permanent disablement of the Respondent the compensation amount should have been 8.00 lakhs for permanent loss of a vital organ with Rs. 1.00 lakh for mental agony and trauma with 50,000/- for cost and expenses for treatment of her eye and to such purpose she had filed an Appeal on the self-same matter namely under number FA/08/295. The cross-Appeal bore reiteration of respective submissions when both these matters were heard simultaneously.
DISCUSSION A. The complainant in the Forum below, Smt. Mridula Ghosh, aged about 40 years, was a self-employed lady, who was suffering from nasal irritation and mouth breathing during February, 2004 and on 18.3.04 she went to Apollo Gleneagles Hospital and was examined by Dr. Ajay Kumar Arya, the OP No. 2, who diagnosed her to be suffering from Polypnasopharynx and after a pale of tests between 18.3.04 and 21.3.04 was admitted at the said hospital on 22.3.04 and was operated upon by Dr. Ajay Kumar Arya, when Nasal Polypectomy/FESS / Right ethmoidectomy was conducted under GA.
She was released from the hospital on 24.3.04 after the said operation when the complainants case was that Dr. Ajay Kr. Arya conducted the surgical operation in negligent and careless manner and thus he caused an injury to the right eye of Smt. Ghosh resulting in complete loss of vision immediately within the operation theatre itself, when in course of the given operation Dr. Arya carelessly cut down the right medial wall of the orbit just posterior to the globe. To cover up the lapse Dr. Arya called the Eye Specialist Dr. J.Raman and the Neurosurgeon, Dr. L.N.Tripathi for their opinion and advice at the O.T. itself and in the Discharge Summary there was clear admission on part of the hospital authority that there was an injury to the right eye during surgery.
This allegation had been denied and disputed by the Ops in the Forum resulting in cross-appeal arising out of the judgement and order of the Ld. Forum below when the complainant prayed for an enhancement of the compensation amount and the Ops prayed for setting aside of the impugned judgement and order of the Forum.
In the original complaint petition the complainant claimed the bill amount paid for her treatment to be at Rs. 3,64,191.18 which was since amended by a petition to Rs. 36,419.18.
Paragraph-11 of the complaint petition was also amended when earlier submission was amended as under.
That the opposite parties no. 1 & 2 are jointly and severally liable for such type of negligence for not treating a patient at an expected level causing a total damage of right eye of the petitioner specially when they are charging moderately higher consideration than other hospitals. For such a minor operation the OP No. 1 has billed an amount of Rs. 36,419.18 (Rupees thirty six thousand four hundred nineteen and eighteen paisa only) to the complainant. From the said bill it appears that OP No. 1 has charged Rs. 12,720/- for investigations and Rs. 14,150/- for O.T. charges and therefore more skill and efficiency can be demanded from an ENT specialist and as well as from an well-equipped Hospital.
It clearly reflects that the total damage in the complainants right eye was occasioned by the severe negligence on the part of OP No. 2, Dr. Ajay Arya. It was such a minor operation that a junior ENT specialist could have done it effectively and efficiently In support of the complaint prescriptions, Discharge Summary, Biopsy and MRI Scan report (post-operative) and subsequent CT scan report including prescriptions of other doctors were provided. Evidence was placed by the complainant based on these while OP Nos. 1 & 2 also filed their evidence through affidavit when no opinion or evidence of any independent medical specialist was filed by either of the parties.
B. As is evident, Smt. Mridula Ghosh went to the hospital on 18.3.04 and as an out-patient was examined by Dr. Arya there and after certain tests having been conducted he advised surgical intervention and on 22.3.04 she was admitted in the hospital and Nasal Polypectomy/FESS / Right ethmoidectomy under GA was conducted on 22.3.04 when the Discharge Summary as given by the hospital stated as under :-
Nasal polypectomy/FESS/Right ethmoidectomy on 22/03/04 under general anaesthesia.
Mild DNS to right.
Right unicinectomy.
Two large polyps on right nas pharynx.
A small nodule on right nose.
All these specimens have been sent for histopathology BIPP packing done.
There was an injury to right eye during surgery with complaints of loss of vision in right eye. Dr. J.Raman was called into the theatre by Dr. A.Arya. Perception of light on the right side could not be appreciated by the patient. There was evidence of right conjunctival haemorrhage. Right optic nerve shows oedema. Bulky right superior, inferior lateral rectus. Medial rectus has been pushed medially. No evidence of retrobulbar collection.
A neurosurgical opinion was taken from Dr. L.N.Tripathi. Right optic nerve dysfunction and medial rectus paresis.
No vision RE(PL-) LE (Normal vision).
Prior to undertaking of the said surgery CT PNS report of Smt. Ghosh revealed Evidence of bilateral concha bullosa larger on right side.
MRI report of Smt. Ghosh of 22.3.2004 had the findings Mild proptosis of right eye seen which is mildly displaced globe laterally. Heterogenous hyperintensity seen in both nasal air passages with thickening and hyperintensity of nasal mucosa and turbinates on high TR/TE images, which is hypo on T1W images.
There is opacification of some of the ethmoidal air cells (anterior group) seen mainly on right. These are showing extensive enhancement on contrast suggestive of inflammatory change. Mild S-shaped deviation of nasal septum seen.
Concha bullosa present in earlier CT Scan (pre-operative) filled with heterogenous hyperintense signals on T2W images which is heterogenously hypointense on T1W images, not enhancing on contrast.
Medial wall of right orbit not visualized properly with direct continuation of the disease process seen within the right orbit from right nasal cavity.
The signal intensity is heterogeneously hyper on T2 and hypo on T1W images. The signal abnormality is seen in medial side and surrounding the right optic nerve. These areas of abnormal signal not enhancing on contrast.
Right medial rectus muscle only visualized near insertion, enhancing normally on contrast. Proximal part near globe not visualized suggestive of injury.
Right maxillary sinus filled with hyperintense fluid on T2, hypo on T1 showing peripheral mucosal rim enhancement on contrast suggestive of sinusitis.
Right optic nerve is normal in course and visualized in entire length.
Minimal perioptic enhancement seen in contrast with mild enhancement of optic nerve on post-contrast coronal images visualized.
Thick, hypointense signals in both nasal air passages seen may suggestive of nasal pack.
Rest visualized air sinuses are normal.
Rest visualized muscles of orbit are normal in course, caliber and enhancement pattern.
Left optic nerve is normal in course, calibre.
Subsequent prescription dt. 24.3.04 of Dr. P.K.Chatterjee reads, .sudden loss of vision RE in murite post-operative period, i.e. on 22.3.04 CT Scan Orbits and PNS (Plain) report dt. 2.4.04 from Vita Diagnostics Ltd. reads There is evidence of dehiscence of the right medial wall of the orbit just posterior to the globe. The medial rectus is not visualized at this level. The medial rectus fibres just anterior and posterior to the defect are irregular. The anterior 1/3rd of the optic nerve sheath complex is irregular and pulled towards the medial orbit (at the bony defect) and appears kinked.
Minimal soft tissue noted in the medial canthal region. The globe appears grossly intact. Defect noted in the floor of the sella with CSF within the sella.
Nasopharynx shows minimal soft tissue thickening.
Both globles show normal anatomical configuration. Lens, anterior and posterior chambers appear normal.
Left optic nerve is of normal thickness and attentions. Retro orbital fat appears normal.
No mass lesion is detected.
Both lacrimal glands are normal.
Opacification of the right maxillary and ethmoid sinus noted.
IMPRESSION :
CT FEATURS ARE SUGGESTIVE OF DEHISCENCE IN THE MEDIAL WALL OF RIGHT ORBIT WITH THE DISRUPTION OF THE MEDIAL RECTUS AT THIS LEVEL.
SIGNIFICANT RESOLUTION OF THE NASOPHARYNGEAL POLYPOID SOFT TISSUE AS COMPARED TO PRE OPERATIVE SCANS DATED
19.03.04.
The report dt. 11.4.04 of Dr. Agarwals Eye Hospital stated as under :
Mrs. Mirdual Ghosh, 40 years old lady came to us with complaints of sudden dimness of vision. She had undergone endoscopic surgery for right nasal polyp. She had already received inj. Methyl prednisolone for 3 days and was on tapering dose of oral prednisolone.
She could nokt perceive any light in the right eye but her visual acuity was 6/6p in the left eye. Examination showed restricted adduction in the right eye. The right pupil was not reacting to light. The intraocular pressures were 11 mmHg and 16mmHg in the right and left eyes respectively. Fundus examination of the right eye showed mild disc pallor, cotton wool spot and retinal edema involving macula. The left eye fundus was normal. CT scan of the orbits was suggestive of dehiscence in the medial wall of right orbit with disruption of medial rectus. The patient was advised to continue oral prednisolone in a tapered manner.
The prescription dt. 8.11.05 of Dr. M.Dasghosh reads as follows complained dimvision rather loss of vision with divergence in right eye since operation of nasal polypectomy under GA on 22.3.2004.
Treated for months since them but with no recovery of vision in right eye. BG Cornea clear .. On examination of right eye mild congenial congestion present. Divergent due to Medial Rectus palsy, with optic atroply+ PL nil.
From the foregoing the complainant sought to build up her case of medical negligence and referred to the principle of res ipsa loquitur being applicable in this case where injury to the right eye during surgery was sought to be described as the primary reason for the loss of vision in the right eye. Referring to Discharge Summary it was pointed out that There was an injury to right eye during surgery with complaints of loss of vision in right eye.
Dr. J.Raman was called into the theatre by Dr. A.Arya. Perception of light on the right side could not be appreciated by the patient.
There was evidence of right conjunctival haemorrhage. Right optic nerve shows oedema. Bulky right superior, inferior lateral rectus. Medial rectus has been pushed medially. No evidence of retrobulbar collection. A neurosurgical opinion was taken from Dr. L.N.Tripathi. Right optic nerve dysfunction and medial rectus paresis.
MRI Scan report dt. 22.3.04 at the hospital was also recalled where it was clearly written, Patient is an immediate post-operative case of FESS, developed sudden loss of vision on right.
Arguing that the patient was not advised by the hospital or the surgeon as to the risk involved in the said nasal surgery before the operation, it was stated that no further expert opinion and evidence was necessary in this case. This was all the more so as firstly the hospital authority had admitted that there was an injury to the right eye during operation as in the Discharge Summary and secondly because while no evidence was given by the eye specialist namely Dr. Raman and the Neurosurgeon, Dr. Tripathi, who were present inside the operation theatre immediately after the operation, it was opined that there was evidence of right conjunctival haemorrhage. Reliance was also had on the citation in 2006 (1) CPR 38 (NC) where it was pointed out to the finding that In absence of any report placed by petitioner as regards three pre-operative, operative and post-operative, no expert could give any opinion whether treatment was correct or not In such a case, principle of res ipsa loquitur could be applied and it was for petitioner to explain reasons for losing of eyesight No interference was warranted. Reliance was also had on First Appeal No. 625 of 2006 of the Honble National Commission and 2009 SCCL.COM 134 and 2009 SCCL.COM 632. Referring to the celebrated case of Jacob Mathew Vs. State of Punjab and another in the Honble Supreme Court, our attention was drawn to the following observation.
Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, 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.
C. Apollo Gleneagles Hospital, Appellant No. 1 in S.C. Case No. FA/08/274 and Respondent No. 1 in S.C. Case No. FA/08/295, argued inter alia that as per settled principle of law the petitioner/Plaintiff was to succeed on the strength of her own case and not on the principle of res ipsa loquitur.
Neither any document of contemporaneous medical literature nor any medical expert report was forthcoming wherefrom it would be evident that the allegations of the complainant were true and correct and as per settled principle of law, a case of medical negligence is required to be proved by evidence of medical expert or available medical literature on the subject as was decided in 2004 CTJ 175 (NC) when in the present case there was no such report forthcoming. Pointing out that a specific fact of medical negligence is required to be established in the given case as was decided in 2003 (3) CPR 110 the same was not done in this matter when post-operative MRI scan clearly revealed that Right optic nerve is normal in course and visualized in entire length.
The CT Scan dt. 2.4.04 corroborated the same finding when medial rectus muscle was stated to be in damaged condition, but there was no injury or cut in optic nerve when it is pertinent that medial rectus muscle injury can at best cause diplopia (double vision) but not loss of vision. Reports of Dr. Agarwals Eye Hospital also seconded this position. Stating that the Ld. Forum passed the impugned judgement and order merely on the basis of surmise and conjecture when no expert evidence and contemporaneous literature was filed to prove the case of the complainant and when no corroborative document or evidence was filed by the complainant to prove her case and when Honble National Commission in its judgement in 2009 (2) CPR 285 (NC) observed that Mere allegations, apprehensions, conjectures and surmises cannot be relied upon unless they are corroborated with evidential value to conclude that there is deficiency in service or negligence on part of opposite parties. It was accordingly contended that the approach of the Trial Forum was wrong and the case made out by the complainant deserves dismissal. Further, referring to citations in 2009 (2) CPR 221 (NC) it was pointed out that 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 have chosen to follow or resort to the practice or procedure other than what was followed by the Doctor attending. Burden to prove medical negligence is on the part of the complainant. Accordingly, without having an iota of evidence of negligence/deficiency of service on part of the hospital or the doctor, a prayer was made for allowing the Appeal being under number FA/08/274 and dismissing the Appeal under number FA/08/295.
D. The Ld. Advocate for the Appellant No. 2/Respondent No. 2, Dr. Ajay Kr. Arya, argued that the case of medical negligence has to be proved by evidence of medical expert as was decided in (i) 2006 (1) CPJ 24 (NC), (ii) 2006 (2) CPJ 348 (NC) and (iii) 2007 (2) CPJ 235 (NC). Stating that Smt. Mridula Ghosh, the complainant, did not adduce any evidence other than filing some documents only when in absence of any evidence of expert Dr. Arya could not be held liable for medical negligence when the Forum below constituted itself to be an expert not permitted by law as laid down in 2003 (1) CPJ 153 (NC). Quoting excerpts from Parsons Diseases of the Eye, 18th Edition Page-19/24 and Head & Neck Surgery Otolaryngology 4th Edition, Page-486 it was stated that It is now well settled by various judicial pronouncements that surgical mishaps is not negligence. So the injury in right midial rectus muscle of the eye in course of surgery by Dr. Ariya cannot be said to be negligence on his part. In such regard, reliance was had on medical treaties as under .
Medical Negligence Case law 2nd Edition Randy Nelson Jones and Frank Burton B.A.
(a) Medical Negligence by Michael A. Jones 1996
(b) 1954 (2) OB 66
(c) 2005 (6) SCC 1 Stating that the qualification and experience of Dr. Ajay Kr. Arya was not questioned by the patients at any point of time, it was stated that the Ld. Forum below proceeded with conjecture and surmise as it held that only due to the injury and incision by the Doctor O.P. 2 for which complainant had lost her vision, when there was no expert evidence in support of such and when Dr. Arya had not caused any injury whatsoever to optic nerve which only could have been the cause loss of vision in the given circumstances. Contending that to hold Dr. Arya liable for medical negligence in absence of expert evidence would be contrary to settled law, more particularly when Smt. Ghosh did not give any evidence for herself other than filing of some documents, the impugned judgement and order of the Forum below was stated to be frivolous and more so, when the compensation amount allowed in the impugned judgement had no mention as to what basis the same was awarded and when the compensation was awarded without any available evidence. Referring to non-disclosure of risk prior to the surgical operation having been undertaken, it was pointed out that the complainant herself admitted the loss to be unexpected in Para-19 of the complaint when, according to the medical practice, only expected risk was required to be explained as held in 2008 (2) SCC 1 and when no ground for such was taken in Memo of Appeal. Repeating that any injury that might have happened to right medial rectus muscle could not cause loss of vision on the face of express finding of the MRI Scan report dt. 22.3.04 that there was no cut in the optic nerve, it was stated that the principle of res ipsa loquitur has no application in this medical case, well settled in citations under 2005 (6) SCC 1 and 2009 (1) CPJ 32 (SC).
E. From the foregoing we are of the view that firstly, the principle of res ipsa loquitur has no application in this case of medical negligence where Smt. Mridula Ghosh, the complainant, has signally failed to lay sustainable evidence which indeed could prove that there was deficiency in service and/or negligence on part of the hospital or on part of the surgeon. As it appears from the medical reports placed before us that the treating doctor conducted all relevant and appropriate tests prior to conducting the surgery, which itself was completed to its purpose, but in the process, there was accidental cut in right medial rectus muscle, immediately following which the surgeon ensured attendance of Dr. Raman, Eye Specialist, and Dr. Tripathi, Neurosurgeon, both of whom did their bit. We have no evidence that the practice or procedure followed by the operating surgeon was not acceptable to the medical profession or that there was better alternative course or method of treatment. There is no evidence either that the operating surgeon failed in taking due precautions or that there was any rashness on his part.
Whether the cut in the medial rectus miscle in course of nasal polypectomy was an act of failure in taking special extraordinary precaution would be conjecture in absence of any hard evidence and in any case a particular happening cannot by itself be led with charge of negligence or deficiency of service. In this regard we would refer to celebrated citation in Roe Vs. Minister of Health & Another, Woolley Vs. Same (Queens Bench Division) wherein it was observed, But we should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong. Doctors would be led to think more of their own safety than of the good of their patients. Initiative would be stifled and confidence shaken. A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work. We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure. I agree with my Lord that these appeals should be dismissed. We would also hold that the observation of the Honble Supreme Court in 2009 SCCL.COM 680 that the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia is applicable in this case when no proximate cause has been specifically proved as to alleged negligence and/or deficiency of service on part of the Ops namely the Hospital and the surgeon concerned.
On the issue as to whether the said cut in the medial rectus muscle was by itself the cause to loss of vision in the right eye, as was alleged, is an issue on which excerpts from medical literature have been placed before us arguing that this has nothing to do with the loss of vision when there was no injury to optic nerve and human vision is carried only through optic nerve, which has nothing to do with any damage in medial rectus muscle. However, we cannot assume the role of medical expert and can not adjudicate as to what extent the cut in the rectus muscle could have damaged and/or affect the optic nerve or consequential loss of vision. In such regard, we would rely on the citation in 2009 (1) CPJ 32 (SC) when the Honble Apex Court held, The courts and Consumer Fora are not experts in medical science and must not substitute their own views over that of specialists.
It is true that the medical profession has to an extent become commercialized and thee are many doctors who depart from their Hippocratic oath for their selfish ends of making money.
However, the entire medical fraternity cannot be blamed or branded as lacking in integrity or competence just because of some bad apples.It must be remembered that sometimes despite their best efforts the treatment of a doctor fails. For instance, sometimes despite their best efforts the treatment of a doctor fails. For instance, sometimes despite the best effort of a surgeon the patient dies. That does not mean that the doctor or the surgeon must be held to be guilty of medical negligence, unless there is some strong evidence to suggest that he is.
F. In above view, we do not agree with the finding and the impugned judgement and order of the Ld. Forum below when we hold that the allegations in the complaint having not been proved conclusively or established the complaint is liable to be dismissed. Accordingly, the Appeal No. FA/08/274 is liable to be allowed on contest without cost and the Appeal No. FA/08/295 is liable to be dismissed also without any cost.
O R D E R Hence, it is ordered that the Appeal No. FA/08/274 stands allowed on contest without cost and Appeal No. FA/08/295 stands dismissed on contest also without any cost. The impugned judgement of the Ld. Forum below is accordingly set aside.
MEMBER MEMBER