State Consumer Disputes Redressal Commission
Puneet Chopra vs Dr. Umesh Bareja & Anr. on 1 March, 2023
CC. NO.412/2013 D.O.D.: 01.03.2023
MR. PUNEET CHOPRA VS. DR. UMESH BAREJA & ANR.
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution: 17.07.2013
Date of Hearing: 30.08.2022
Date of Decision:01.03.2023
COMPLAINT CASE NO.- 412/2013
IN THE MATTER OF
MR. PUNEET CHOPRA,
S/O MR. K.B. CHOPRA,
R/O F-15, MANGALAM APARTMENTS,
MODULE -10, ABHEY KHAND-3, INDRAPURAM.
(Through: Mr. Anurag Gohil, Advocate)
...Complainant
VERSUS
1. DR. UMESH BAREJA,
DR. BAREJA CLINIC,
B-8, GEETANJALI ENCLAVE,
NEW DELHI-110017.
(Through: Mr. Pradeep Kumar, Advocate)
2. MR. VIPIN BUKSHEY,
VISUAL AIDS CENTRE,
8, RING ROAD LAJPAT NAGAR-IV,
NEW DELHI-110024.
(Through: Mr. Pankaj Chaudhary, Advocate)
...Opposite Parties
DISMISSED PAGE 1 OF 16
CC. NO.412/2013 D.O.D.: 01.03.2023
MR. PUNEET CHOPRA VS. DR. UMESH BAREJA & ANR.
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
Present: Complainant in person.
Ms. Monica Kumar, Counsel for Opposite Party no. 1.
Mr. Ramanand Roy, Counsel for Opposite Party no. 2.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
1. Brief facts necessary for the adjudication of the present complaint are that on 21.09.2012, the complainant went to the clinic of Opposite Party no. 1, for the treatment of his eyes as he was suffering from irritation and watery eyes, where the Opposite Party no. 1 suggested certain eye drops and advised him to come on the next day. On 22.09.2022, the Complainant was advised for the C-Lasik surgery by the Opposite Party no. 1. Further, on 16.11.2012, the testing of the cornea was done in order to do the surgery, wherein, as per reports, it was found that the cornea of the Complainant is weak. However, even after knowing the said fact, C-Lasik surgery was performed by the Opposite Parties but the Complainant started feeling irritation and blurredness in his eyes from the very third day of the surgery, which he intimated to the Opposite Party no. 1 but the Opposite Party no. 1 took it very casually and asked him to continue the prescribed medicines.
2. After that, the Complainant made multiple visits to the hospital of Opposite Party no. 1 but no improvement could be seen in his eyesight. The issue eventually became so severe that the Complainant sought a second opinion from Dr. Ramesh Narang practicing in Sonepat, who checked the eyesight of Complainant and noted the following results (Right eye: +0.5 -0.75 65 6/8) DISMISSED PAGE 2 OF 16 CC. NO.412/2013 D.O.D.: 01.03.2023 MR. PUNEET CHOPRA VS. DR. UMESH BAREJA & ANR.
(Left eye: +0.25 -0.5 110 6/12). Accordingly, medications/ Eye Drops were prescribed for the said problem and the case of the Complainant was referred to AIIMS. Following that, the Complainant sought the advice of two more doctors, Dr. Ashish Rawal and Dr. Rajib Mukherjee, who after examination, determined that the Complainant had post-LASIK corneal ectasia and advised him to undergo C3R/CXL surgery (cornea collagen crosslinkage with riboflave). After consulting with all experts, the Complainant was left with no option but to visit the AIIMS to treat the blurred vision in his eyes which was caused due to the negligent performed surgery by the Opposite Parties. On 07.05.2013, the Complainant underwent C3R/CXL surgery in his right eye at the AIIMS, Hospital, New Delhi to cure the damage and injury caused to the cornea of the Complainant.
3. On the aforesaid grounds, the Complainant has alleged medical negligence against the Opposite Parties and has prayed the following reliefs: -
(a) "Pay the sum of Rs30,000/- {thirty thousand only} each as the expenses made by the Complainant towards the LASIK surgery and its treatment;
(b) Pay the sum of Rs20,000/- {twenty thousand only} each for the expenses made toward treatment after Lasik Surgery;
(c) Pay the sum of Rs10,000/- {ten thousand only} each as the expenses made toward C3R/CXL Surgery and its treatment;
(d) Pay a sum of Rs10,00,000/- {ten lac only} each for punitive compensation towards leaves, loss of job & loss of carrier;
(e) Pay a sum of Rs 10,00,000/- {ten lac only} each for punitive compensation for loss of Cornea and deteriorate in vision;
(f) Pay a sum of Rs10,00,000/- {ten lac only} each for punitive compensation towards Mental agony & Harassment;
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MR. PUNEET CHOPRA VS. DR. UMESH BAREJA & ANR.
(g) Pay a sum of Rs14,00,000/-{fourteen lac only} each for punitive compensation towards future medical treatment and care;
(h) Pay a sum of Rs1,00,000/-(one lac only} each for compensation towards Legal Expenses;
(i) Pay costs of this complaint;
(j) pay a sum of Rs 45,60,000/- (forty five lacs and sixty thousand only} each; from both the respondents separately total amounting to Rs91,20,000/-{ninety one lac and twenty thousand only} and;
(k) Pass such further or other order as this Hon'ble Forum/Commission may deem fit and proper in the circumstances of the case and thus render justice."
4. Notice was issued to the Opposite Parties and separate written statement was duly filed by the Opposite Parties wherein, the Opposite Party no. 1 contested the present case and contended that the present complaint is maintainable before this Commission as this Commission does not pecuniary jurisdiction to entertain the present Complaint. The Opposite Party no. 1 further contended that no cause of action has arisen in favour of the Complainant as no negligence/ deficiency of service has been committed by the Opposite Party no. 1 in performing the surgery. The Opposite Party no. 1 also submitted that the Delhi Medical Council vide its order dated 21.07.2014 has given the clear findings that there is no medical negligence on the part of Dr. Umesh Bareja (Opposite Party no. 1) in performing the C- LASIK surgery upon the Complainant.
5. The Opposite Party no. 2 has also filed the written statement where, he submitted that there was no negligence/ deficiency of services and the surgery was performed with latest and safest technique known and recognized by medical science and the Opposite Party no. 1 had treated the DISMISSED PAGE 4 OF 16 CC. NO.412/2013 D.O.D.: 01.03.2023 MR. PUNEET CHOPRA VS. DR. UMESH BAREJA & ANR.
Complainant in accordance with the highest standards of medical practice follows by the practitioners in similar cases. The Opposite Party no. 2 also submitted that the said complaint has already been examined by Delhi Medical Council, New Delhi through its executive committee of five doctors and has held vide order dated 31.06.2014 that prima facie no case of medical negligence is made out in the treatment administered by Opposite Party no.1. Pressing upon the aforesaid submission, the Opposite Party no. 2 has pleaded that the facts are clear that there exists no negligence on the part of Opposite Party no. 2 and the present complaint be dismissed with cost, since there is nothing on record to prove that the Opposite Parties are liable for Medical Negligence.
6. The Complainant has filed separate Rejoinder to the Written Statements filed on behalf of Opposite Parties and has even filed his Evidence by Way of Affidavit. The Opposite Parties have also filed their Evidence by way of Affidavit in order to prove the averments made by them in their respective written statement.
7. We have heard the Counsel for the parties and perused through the material on record including the Written Arguments filed on behalf of the contesting parties.
8. The first question for consideration before us is whether this Commission has pecuniary jurisdiction to adjudicate the present complaint.
9. To answer this question, we deem it appropriate to refer to Section 17(1) of the Consumer Protection Act, 1986 which provides as under:
"Section 17: Jurisdiction of the State Commission-
(1) Subject to the other provisions of this Act, the State Commission shall have jurisdiction--
(a) to entertain-
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MR. PUNEET CHOPRA VS. DR. UMESH BAREJA & ANR.
(i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore; and
(ii) appeals against the orders of any District Forum within the State; and
(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State, where it appears to the State Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity."
10. Analysis of Section 17(1) of the Consumer Protection Act, 1986 leads us to the conclusion that this Commission shall have the pecuniary jurisdiction in cases where the total claim including the compensation is more than twenty lakhs but less than One Crore.
11. Having discussed the statutory position, the facts of the present case reflect that the compensation prayed for by the Complainant through present Complaint against the Opposite Parties is beyond Rs. 20 Lakhs but does not exceed Rs. one Crore, accordingly, this Commission has the pecuniary jurisdiction to adjudicate the present complaint and not paralysed for the want of pecuniary jurisdiction. Therefore, the contention raised by the Opposite Party no. 1 is answered in negative.
12. Having answered the preliminary contention raised by the Opposite Party no.1 in negative, the main question for consideration before us is whether the Opposite Parties are liable for any medical negligence/deficiency of service in performing the C-LASIK surgery upon the Complainant.
13. To deal with this issue, we deem it appropriate to refer to the law on the cause. This Commission, has, in detail discussed the scope and extent of DISMISSED PAGE 6 OF 16 CC. NO.412/2013 D.O.D.: 01.03.2023 MR. PUNEET CHOPRA VS. DR. UMESH BAREJA & ANR.
Negligence with respect to Medical Professionals in CC- 324/2013, titled Seema Garg & Anr. vs. Superintendent, Manohar Lohia Hospital & Anr. decided on 31.01.2022, wherein one of us (Justice Sangita Dhingra Sehgal, President) was a member. The relevant portion has been reproduced as below:
"9.......The Hon'ble Apex Court, after taking into consideration its previous decisions on Medical Negligence, has consolidated the law in Kusum Sharma and Ors. vs. Batra Hospital and Medical Research Centre and Ors. reported at (2010) 3 SCC 480, wherein, it has been held as under:
"94. On scrutiny of the leading cases of medical negligence both in our country and other countries specially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view: I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
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MR. PUNEET CHOPRA VS. DR. UMESH BAREJA & ANR.
III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor. VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence. VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, DISMISSED PAGE 8 OF 16 CC. NO.412/2013 D.O.D.: 01.03.2023 MR. PUNEET CHOPRA VS. DR. UMESH BAREJA & ANR.
he would not be liable if the course of action chosen by him was acceptable to the medical profession. VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck. IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.
95. In our considered view, the aforementioned principles must be kept in view while deciding the cases of medical negligence. We should not be understood to have held that doctors can never be prosecuted for medical negligence. As long as the doctors have performed their duties and exercised DISMISSED PAGE 9 OF 16 CC. NO.412/2013 D.O.D.: 01.03.2023 MR. PUNEET CHOPRA VS. DR. UMESH BAREJA & ANR.
an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind."
10. In cases wherein the allegations are levelled against the Medical Professionals, negligence is an essential ingredient for the offence, which is basically the breach of a duty exercised by omission to do something which a reasonable man would do or would abstain from doing. However, negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence and they are entitled to protection so long as they follow the same."
(emphasis supplied)
14. In the present case also, it will have to be ascertained whether there was any lack of skill and competence on the part of the operating doctor and/or any omission to do what was actually required in the present facts and circumstances.
15. The Complainant has not challenged the competency of the operating doctor i.e. Opposite Party No. 1, hence, the first part of the aforesaid para stands answered, that there was no lack of competence on the part of the Opposite Party No. 1.
16. It is not the case of the Complainant that the doctors operating upon the patient were not having the requisite skill or competence or were not qualified to operate upon the patient. What has actually transpired from the perusal of the Complaint is that the Complainant alleges that the tests of cornea which was conducted by the Opposite Parties before conducting the surgery shows that the cornea of the Complainant had not been thick enough for the surgery and despite knowing the said fact, the Opposite Parties have DISMISSED PAGE 10 OF 16 CC. NO.412/2013 D.O.D.: 01.03.2023 MR. PUNEET CHOPRA VS. DR. UMESH BAREJA & ANR.
performed the C-LASIK surgery which resulted into the development of post-Lasik corneal ectasia.
17. We deem it appropriate to refer to the dicta of the Hon'ble Apex Court, in Harish Kumar Khurana vs. Joginder Singh and Ors. reported at AIR 2021 SC 4690, being the latest pronouncement on the cause, wherein, the Hon'ble Supreme Court, while taking into consideration its previous pronouncements in Jacob Mathew v. State of Punjab and Anr. reported at (2005) 6 SCC 1, and Martin F. D'Souza v. Mohd. Ishfaq reported at (2009) 3 SCC 1, has held as under:
"14. Having noted the decisions relied upon by the learned Counsel for the parties, it is clear that in every case where the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed that the medical professional was negligent. To indicate negligence there should be material available on record or else appropriate medical evidence should be tendered. The negligence alleged should be so glaring, in which event the principle of res ipsa loquitur could be made applicable and not based on perception."
18. From the aforesaid dicta of the Hon'ble Apex Court, it is clear that only the failure of the treatment is not prima facie a ground for Medical Negligence and in order to attract the principle of res ipsa loquitur, Negligence i.e. the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do, should be clearly evident from the record.
19. Further, on perusal of record, we find that the complaint regarding the negligence/ deficiency of service on the part of Opposite Parties was made before the Delhi Medical Council, where the executive committee of five doctors, after considering the facts of the case, has stated that prima facie no DISMISSED PAGE 11 OF 16 CC. NO.412/2013 D.O.D.: 01.03.2023 MR. PUNEET CHOPRA VS. DR. UMESH BAREJA & ANR.
case of medical negligence is made out in the treatment administered by Dr. Umesh Bareja (Opposite Party no. 1). The order of the Delhi Medical Council is reproduced below for the ready reference herein:
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MR. PUNEET CHOPRA VS. DR. UMESH BAREJA & ANR.
20. Bare perusal of the aforesaid findings reflects that the executive members of the Delhi Medical Council had examined the pre and post C-LASIK operation data and found that the thickness of the corneal was appropriate in order to conduct the C-LASIK surgery. Further, no significant corneal thinning has been taken place post C-LASIK surgery. Therefore, it is clear that no medical negligence on the part of Opposite Party no. 1 was established before the Delhi Medical Council.
21. Furthermore, even though the Complainant has not spared a word against the operating doctor in his complaint and has challenged each and every step which was being taken for the treatment of the patient, but has failed to bring on record any substantial evidence, oral or documentary, in support of their contentions. The Complainant has even failed to examine any Expert Witness in support of his case. More so, we find that the Complainant consulted other doctors during the post-surgery period, including Dr. Ramesh Narang, Dr. Ashish Rawal, and Dr. Rajib Mukherjee, but none of them specified any deficiency or negligence on the part of the operating doctors in their reports and generally prescribed the medications/ eye drops to the Complainant. Therefore, this Commission cannot presume that the allegations in the complaint are inviolable truth even though they remained unsupported by any evidence. Our findings to this effect are substantiated by the dicta of the Hon'ble Apex Court in C.P. Sreekumar (Dr.), MS (Ortho) Vs. S. Ramanujam reported at (2009) 7 SCC 130, wherein, it has been held as under:
"37. We find from a reading of the order of the Commission that it proceeded on the basis that whatever had been alleged in the complaint by the respondent was in fact the inviolable truth even though it remained unsupported by any evidence. As already DISMISSED PAGE 14 OF 16 CC. NO.412/2013 D.O.D.: 01.03.2023 MR. PUNEET CHOPRA VS. DR. UMESH BAREJA & ANR.
observed in Jacob Mathew case [(2005) 6 SCC 1: 2005 SCC (Cri) 1369] 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."
22. Moreover, it is a well laid down principle that the doctor diagnosing upon a patient is the best judge of the treatment which is to be undertaken for that specific patient. There may be multiple approaches with which the patient may be treated upon, however, the doctor is expected to choose the most appropriate one in the given facts and circumstances. Hence, a higher degree of reliance is placed upon the concerned doctor, that whatever option he/she exercises will be for the benefit and interest of the patient.
23. In totality of facts, with due regard to the pronouncements of the Hon'ble Supreme Court, as discussed above, we are of the view that the Complainant has failed to establish that there was:
a) Lack of Skill and Competence on the part of the Operating Doctor; or
b) breach of a duty exercised by omission to do something which a reasonable man would do or would abstain from doing; or
c) that the treatment which was given to the Complainant was not acceptable to the Medical Profession at that specific time period.
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which are basically the essential requirements/ingredients for constituting a case of Medical Negligence covered under the Consumer Protection Act, 1986.
24. Consequently, we are of the view that there exists no Negligence on the part of the Opposite Parties, hence, the Complaint stands dismissed, with no order as to costs.
25. Application(s) pending, if any, stand disposed of in terms of the aforesaid judgment.
26. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Regulations, 2005. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
27. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) Pronounced On:
01.03.2023 DISMISSED PAGE 16 OF 16