State Consumer Disputes Redressal Commission
O.P. Thukral vs Dr. Neelam Kaul, M.S. (Op Hn) on 3 April, 2007
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 03-04-2007 Complaint Case No. C-233/2002 Shri O.P. Thukral, Complainant WZ-400 Sri Nagar, Through Shakur Basti, Mr. S.K. Sharma, New Delhi-110034. Advocate. Versus Dr. Neelam Kaul, M.S. (OP HN) Opposite Party Janki Dass Kapoor Memorial Hospital, Through Pandav Nagar, Nr,Braj Kishore Mishra, Naryana Road, Advocate. New Delhi-110008. CORAM : Justice J.D. Kapoor- President Mr. Mahesh Chandra - Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
JUSTICE J.D. KAPOOR, PRESIDENT (ORAL) This is a case of medical negligence.
According to the complainant he lost his vision due to the negligence of the OP/Doctor who operated upon his left eye and has sought through this complaint compensation of Rs. 5,67,000/- comprising different components like expenses of lens, medicines, loss in income, loan raised from his daughter and damages for mental agony and sufferings.
2. Case of the complainant in brief is that he got his left eye operated upon on 15-08-2000 at Janki Dass Kapoor Memorial Charitable Hospital. The operation was conducted by Dr. Neelam Kaul.
Next day when the bandage on the eye was removed the complainant could not see anything. He started having shadowness and pain. He almost lost vision of his left eye. On repeated complaint to the OP doctor that he cannot see from the left eye the OP doctor advised him to go to Guru Nanak Eye Hospital.
He gave several visits to Guru Nanak Hospital but was told to deposit Rs. 10,000/- for re-operation. However, inspite of having deposited the said amount the operation was not done as he was told that the eye already operated has been damaged permanently. He was referred to AIIMS. There also he stated that initial operation was not done properly and therefore his left eye is almost become dead. He then got his eye checked up from Deen Dayan Upadhyaya Hospital as well as other private hospital. They also told him the same thing.
3. He has sought damages of loss of earning @ Rs. 600 per day. He also took loan of Rs. 1,00,000/-
from his daughter to pull his day to day life.
4. OP/Doctor has admitted having operated upon the right eye of the complainant.
She did not charge any fee for examining the complainant as the hospital is run by a Charitable Trust. According to her she was Consultant Doctor with Janki Dass Kapoor Hospital. So far as the operation was concerned it was done directly in the operation theatre for which charges were paid directly to the Hospital by the patient. Similarly cost of the consumables were paid directly to the Hospital.
5. On factual matrix the OP had admitted that the complainant came to the Hospital on 03-08-2000 with the complaint of inability to see and she examined him in the OPD and found that there was advanced cataract in both eyes of the complainant. She further found that the condition of the cataract in the right eye of the complainant was more severe than that in the left eye of the complainant. The complainant was also a case of high myopia.
The right eye vision of the complainant was extremely bad (near blindness) and the he could only perceive light and could not perceive any hand movement. Even the left eye of the complainant had vision of 6/60, i.e. he could read only the first line of the test charge. As per convention the operation of cataract is conducted only in respect of one eye at a time. She therefore suggested cataract operation (extra capsular cataract extraction) with intra ocular lens implant of the right eye. The operation suggested by her was the only possible and medically prudent treatment in view of the condition of the eye of the complainant. She found that there was poor fundus glow, which means that the retina of the complainant was not visible clearly because of presence of advanced cataract in the eye. However, as the complainant was suffering from high myopia, the chances of success of the operation were uncertain. She explained the risk to the complainant and in fact, in the OP D card itself mentioned prognosis guarded d/t high myopia, risk explained.
6. After carefully understanding the process of operation and the attendant risk involved, the complainant was prescribed the normal routine tests required before conducting cataract operation. The complainant was called on 05-08-2000 for the cataract operation. The operation was conducted in the presence of an anaesthetist, Dr. Amitabh Banerjee. After successful extraction of the cataract, intra ocular lens was implanted in the right eye of the complainant. The hospital charged Rs. 1,600/- only. Out of Rs. 1,600, she was paid Rs. 1,120/- and the balance was retained by the Hosptial.
7. The complainant came again for the first post operative check up on 06-08-2000.
On that day she examined him and found the incision to be healthy and cornea clear. The vision of the complainant had improved to finger counting at 2-3 meters. The implanted lens was found to be in place.
Fundus glow was also good. All these showed that after the operation the condition of the eye of the complainant had substantially improved. There was no complaint by the complainant of any irritation or loss of vision. All requisite medicines were prescribed by me. The case of the complainant that he lost vision the very next day and felt pain and irritation in the eye and in head is falsely.
8. That the complainant came to the hospital on 09-08-2000. As she was not present in the hospital, the complainant was examined by Dr. Tarun Kapoor. Dr. Tarun Kapoor found FC+, i.e. the complainant could count fingers. Dr. Tarun Kapoor prescribed drugs for inflammation, which a normal occurrence in the early post operative period after cataract operation.
9. That the complainant came to the hospital again on 10-08-2000 and was examiner by her. On that day there was good fundus glow and the complainant could count fingers.
However, the complainant was reporting some cloudiness of vision. She suspected detachment of retina as the complainant was a case of high myopia and chances of retinal detachment in such patients are high. She could not clearly see the retina at that time as the media was not very clear.
Therefore, to rule out retinal detachment, she thought it proper that either a B-Scan of the eye should be done or an expert retinal surgeons opinion should be sought. As the facility of B-Scan was not available in the Hospital she referred the complainant to Prof. D.K. Mehta, a Senior Retinal Surgeon and Chief of guru Nanak Eye Centre, L.N.J.P. Hospital. The complainant was thereafter examined by Prof. Mehta. No retinal detachment was found by Prof. Mehta. He found the media to be clear and the retina to be attached. The find of Prof. Mehta ruled out retinal detachment suspected by the OP. The complainant came to the hospital again on 24-08-2000 and she examined the complainant and found that the media was clearer than before and the retina was settled.
10. The report of All India Institute of Medical Sciences, New Delhi dated 28-08-2000 produced by the complainant recorded the vision in the right eye of the complainant to be 6/18 6/12 when estimated by pinhole method. This report does not show deterioration of the vision from the pre-operative vision but shows marked improvement. The report of the Dean Dayal Upadhyaya Hospital dated 07-09-2000 produced by the complainant shows that the corrected vision in the right eye of the complainant was 6/12. The report of Sant Parmanand Hospital produced by the complainant shows that the complainant had an improved vision of 6/36 without glasses as later as 03-089-2001.
11. Question of ascertaining medical negligence has been cropping up time and again. Guidelines and criteria for ascertaining the medical negligence laid down in Bolams case reported in (1957) 2 AII ER 118, 121 D-F still holds the field. This test, in popular parlance is known as Bolam Test after the name of the petitioner.
In short the test is as under:-
[Where you get a situation which involves the use of some special skill or competence then the test as to whether there has been negligence or not is to the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art (Charles worth & Percy, ibid., para 8.02)
12. Bolam test was accepted with approval in the following judgments:-
(i) Sidway V. Bethlem Royal Hospital Governors and Others 643 All England Law Reprots (1985) 1 All ER.
(ii) Maynard V. West Midlands Regional Health Authority 635 All England Law Reports (1985) 1 All ER.
(iii) Whitehouse V. Jordan and Another 650 All England Law Reports (1980) 1 All ER.
13. Presumably because of persuasive value of Bolams case that our own Supreme Court has in case after case and particularly in Indian Medical Association Vs. V.P. Shantha & Ors (1995) 6 SCC 651 wherein Bolams case was also discussed has adopted this test as guidelines for the courts to adjudicate the medical negligence. Latest judgment of Supreme Court on this aspect is Jacob Matthew V/s. State of Punjab and Another (2005) SCC (Crl.) 1369. Observations of the Supreme Court are as under:-
(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, which 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, WLR at p. 586 holds good in its applicability in India.
14. While dealing with the concept of criminal medical negligence as well as the medical negligence the broad principles laid down by the Supreme Court are:-
(i) That the guilty doctor should be shown to have done something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do.
(ii) Hazard or the risk taken by the doctor should be of such a nature that injury, which resulted was most likely imminent.
15. Although, there is a distinction between the medical negligence of a criminal nature and simplicitor medical negligence but consumer is entitled for compensation on account of both kinds of negligence. The test for holding the medical professional liable for criminal negligence should be such which should manifestly demonstrate utter act of rashness and negligence whereas ordinarily the negligence or deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service (Section 2(1)(g)).
16. To ascertain the medical negligence, cumulative conclusions drawn from various decisions can be summed up in the form of following queries? Decision will depend upon the answers:-
(i) Whether the treating doctor had the ordinary skill and not the skill of the highest degree that he professed and exercised, as everybody is not supposed to possess the highest or perfect level of expertise or skills in the branch he practices?
(ii) Whether the guilty doctor had done something or failed to do something which in the given facts and circumstances no medical professional would do when in ordinary senses and prudence?
(iii) Whether the risk involved in the procedure or line of treatment was such that injury or death was imminent or risk involved was upto the percentage of failures?
(iv) Whether there was error of judgment in adopting a particular line of treatment? If so what was the level of error? Was it so overboard that result could have been fatal or near fatal or at lowest mortality rate?
(v) Whether the negligence was so manifest and demonstrative that no professional or skilled person in his ordinary senses and prudence could have indulged in?
(vi) Everything being in place, what was the main cause of injury or death. Whether the cause was the direct result of the deficiency in the treatment and medication?
(vii) Whether the injury or death was the result of administrative deficiency or post-operative or condition environment-oriented deficiency?
17. As is apparent, the deficiency in service by service provider like hospital is of varied kinds. In common parlance, medical negligence is understood as negligence of the treating doctor as to the line of his treatment being not as per medical procedure, or deficiency or negligence in operating the patient causing complications of various kinds. Similarly, there is medical negligence on the part of the doctor who undertakes the treatment of a patient for a disease which he is not competent to deal with or does a thing which he is not required to do and does not do a thing which he is required to do. However, the definition of deficiency provided by Sec. 2(1)(g) of the Consumer Protection Act, 1986 is so wide that it also takes in its fold the administrative deficiencies of the hospital. For instance, not providing blood to a patient who could die if blood transfusion is delayed for some time or not providing oxygen cylinder for want of which the patient is likely to suffer, some time fatal, or admitting the patient in the Nursing Home or hospital knowing it well that the doctors who are specialized and skilled for treating the patient are not available for some reason or the other. Sometimes, sanitary conditions of the hospital are so bad that it contributes to the worsening condition of the patient. Sometimes, the wherewithal and paraphernalia of the hospital who have very high reputation and claims themselves to be a five star or seven star hospital are not adequate.
18. It appears that the complainant got himself examined in the AIIMS on 06-05-2002. On examination the doctor in the said Institute found the complainant to be suffering from early PBK, which means degeneration of the cornea.
According to her so called loss of vision of the complainant, if any, can be attributed to degeneration of the cornea occurring subsequently after the operation performed by her.
19. OP made a recommendation to Prof. D.K. Mehta, Chief of Guru Nanak Eye Centre after operation by way of letter dated 10-08-2000. Through this letter recommendation was made for his treatment as under:-
The bearer, Mr. O.P. Thukral, is coming to you with an urgent and humble request fro m me for whatever help you can give him. He is a high myopia, operated for Cataract RE on 05-08-2000. ECCR was done and ACEOL was implanted d/2 a suspected P.C.R. without any vision disturbance. He repeated a cloudiness of vision on 5th day after surgery. A ret. Detachment was suspected and he was referred GNEC forthwith for the needful as we do not have a B-Scan nor a retinal surgeon is available at our hospital.
I shall be certainly grateful if you will kindly help him as his case is quite urgent.
With regards, Sd./-
(Dr. Neelam Kaul)
20. Further the counsel for the OP has contended that there was no deficiency or negligence on the part of the respondent while operating upon the complainant as the complainant was operated at Jankidas Kapur Memorial Hospital where the OP was a Consultant, for cataract on right eye.
He was first examined on 03-08-2000.
On examination it was found that his right eye did not have any vision but only perceive light and could not perceive any hand movement on that date. Thereafter he was operated for cataract on 15-08-2000. After the operation the vision improved and there is nothing on record, no medical prescription, no expert evidence to show that the operation was not correctly performed or proper procedure in performing the operation was not followed.
He was examined in AIIMS on 28-08-2000 and there was no report of deterioration of the vision but shows marked improvement. Then he was examined on 03-09-2001, i.e. after one year of the operation and had an improved vision and cannot be said that operation was a failure.
21. According to the OP she could not clearly see the retina at that time as the media was not clear and therefore to rule out retinal detachment she thought it proper that either a B-scan of the eye should be done or an expert or retinal surgeons opinion should be sought. On examination the myopia was found to be very clear and retina was also found to be attached.
22. Had there been such a successful operation that the vision of the complainant would go on improved every day. We do not understand what was the reason for a person to go to experts like Prof. D.K. Mehta of Guru Nanak Eye Hospital and experts from Deen Dayal Hospital and Sant Parmanand Hospital.
23. The circumstance of degeneration of the cornea after the operation performed by the respondent coupled with aforesaid letter raises the inference of some defect in operating the cornea. Further subsequent report of the Deen Dayal Hospital and AIIMS show that there was some improvement in the vision though if at all there was some deficiency though minute. Moreover, the patient was of old age and having a few complications also.
24. Taking over all view of facts of the case and condition of the complainant as well as the nature of operation and improvement of vision subsequently though it was not upto the mark had the operation been done in perfect manner, we deem that compensation of Rs. 25,000/- besides Rs. 5,000/- as cost of proceedings would meet the ends of justice.
25. Payment shall be made within one month.
26. Complaint is allowed and disposed of in aforesaid terms.
27. A copy of this order as per the statutory requirements, be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
28. Announced on 3rd April 2007.
(Justice J.D. Kapoor) President (Mahesh Chandra) Member jj