State Consumer Disputes Redressal Commission
Harjit Singh Ahluwalia vs Dr. Pukhraj Rishi on 19 August, 2011
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
S.C.O. NO. 3009-10, SECTOR 22-D, CHANDIGARH.
First Appeal No.274 of 2006
Date of institution : 17.2.2006
Date of decision : 19.8.2011
Harjit Singh Ahluwalia son of Shri Jagjit Singh, resident of Bahadurpur, District
Hoshiarpur.
.......Appellant
Versus
1. Dr. Pukhraj Rishi, Sri Guru Harkrishan Sahib (C), Eye Hospital, Sohana,
Tehsil Mohali, District Rupnagar at present working in Sankara Netralaya,
18, College Road, Chennai.
2. Dr. Ekta Anand Rishi, Sri Guru Harkrishan Sahib (C), Eye Hospital,
Sohana, Tehsil Mohali, District Rup Nagar at present working in Sankara
Netralaya, 18, College Road, Chennai.
3. Sri Guru Harkrishan Sahib (C) Eye Hospital, Sohana, Tehsil Mohali,
District Rup Nagar through its Trustee.
4. The Oriental Insurance Company, Branch Rup Nagar, District Rup Nagar
through its Branch Manager, Rup Nagar.
5. National Insurance Company, Karnal.
......Respondents
First Appeal against the order dated 1.12.2005 of
the District Consumer Disputes Redressal Forum,
Ropar.
Before :-
Hon'ble Mr. Justice S.N. Aggarwal President.
Mrs. Amarpreet Sharma, Member.
Present :-
For the appellant : Shri M.S. Kang, Advocate.
For respondent No.1 to 3 : Ms. Adarsh Pal Kaur, Advocate.
For respondent No.4 : Sh. Amit Rawal, Advocate.
For respondent No.5 : Sh. Rahul Sharma, Advocate for
Ms. Veena A. Talwar, Advocate.
JUSTICE S.N. AGGARWAL, PRESIDENT:
Version of the appellant:
The appellant was driving car No.PB-07-0177 on 24.1.2003. He met with an accident. He suffered injury on his left eye. He was taken to Civil Hospital, Hoshiarpur and was examined by the doctors on 25.1.2003 at about 2.30 A.M. He was referred to PGI, Chandigarh. He was admitted in emergency ward of the PGI, Chandigarh on 25.1.2003 in the morning. He was examined for the injury in First Appeal No.274 of 2006. 2 the left eye and treated. On 26.1.2003 he was admitted for operation of his left eye. It was performed by Dr. Anuradha. The appellant was discharged from the PGI, Chandigarh on 31.1.2003.
2. It was further pleaded that he was called for further check-up on 4.2.2003. On that date he was told by the doctors of the PGI, Chandigarh that the progress in the eye operation was satisfactory but the vision in the left eye was less. The appellant was referred to eye retina clinic for examination. It was examined by the doctors of retina clinic of PGI, Chandigarh on 5.2.2003. It was found that the retina of the left eye was detached. It was to be operated again.
3. It was further pleaded that thereafter the appellant was taken by his father to the hospital respondent No.3 for further advice. The appellant was asked to deposit some amount and complete the formalities. It was so done by the appellant. He was admitted in the hospital respondent No.3. Ultra-sound was conducted on the same day i.e. 5.2.2003. Doctors respondents No.1 and 2 had told the appellant that firstly the operation of putli of the eye was to be done and 4/5 days thereafter the operation of the retina will be conducted. Thereafter the vision will be restored completely. At that time the appellant was having about 25% to 30% of eyesight and the appearance of the left eye was normal. The appellant was fully assured by doctors respondents No.1 and 2 that the eyesight will be fully restored.
4. It was further pleaded that on 6.2.2003 the operation of the putli was done and thereafter doctors respondents No.1 and 2 had advised operation of retina. The appellant was asked to deposit a sum of Rs.15,000/- as operation fee. It was deposited by the appellant on 11.2.2003. However doctors respondents No.1 and 2 operated the retina of the right eye of the appellant on 12.2.2003 negligently and carelessly. As a result the left eye of the appellant was totally damaged. The cornea of the left eye of the appellant was injured. The wounds occurred and the lens of the eye was destroyed. A few days after the operation, the appellant was put under cornea expert of the hospital respondent No.3. It was treated by Dr. First Appeal No.274 of 2006. 3 Sujata. The appellant had to undergo various investigations and for installation of artificial lens etc. Sufficient time and money of the appellant was wasted. The appellant was repeatedly called in the hospital respondent No.3 on different dates and assurances were given to him that there would be improvement in his eye sight but unfortunately the appellant became totally blind.
5. It was further pleaded that on 8.4.2003 the doctors respondents No.1 and 2 advised the appellant either to undergo further operation of his left eye or the appellant should get treatment from Sankara Nethralaya, Chennai. Since the eye of the appellant was totally damaged due to the medical negligence on the part of the respondents, the appellant had become totally blind. He decided not to submit himself for medical treatment to the respondents. He preferred to go to Sankara Netharalya, Chennai and reached there on 30.4.2003. The appellant was checked there on 30.4.2003, 2.5.2003 and 3.5.2003 and he was told that there were no chance of permanent cure of the left eye of the appellant.
6. It was further pleaded that the parents of the appellant came to know about the famous Eye Hospital of Hyderabad (Andhra Pradesh). Accordingly the appellant was taken to L.Y. Parshad Eye Institute, Hyderabad. The doctors of that hospital checked the left eye of the appellant on 5.5.2003. They told the appellant that the eye was totally damaged and there was no chance of its cure on permanent basis. The appellant and his parents were running from pillar to post due to the medical negligence committed by respondents No.1 to 3. The appellant has lost his eyesight from the left eye. Hence the complaint for compensation to the tune of Rs.10 lakhs.
7. It was further pleaded that the hospital respondent No.3 had taken the insurance policy from the Oriental Insurance Company Ltd. respondent No.4. Therefore respondent No.4 was also liable to pay compensation to the appellant. Version of respondents No.1 to 3:
8. Respondents No.1 to 3 filed a joint written reply. It was denied for want of knowledge if the appellant had met with an accident on 24.1.2003 or if he was First Appeal No.274 of 2006. 4 taken to Civil Hospital, Hoshiarpur or if he was taken to PGI, Chandigarh or if he was admitted in PGI, Chandigarh on 26.1.2003 or if he was discharged on 31.1.2003 after operation or if he had re-visited the PGI, Chandigarh on 4.2.2003 or if he was referred to eye retina clinic for examination or if he was told that the retina of the left eye was detached.
9. It was, however, admitted that the appellant had come to the hospital respondent No.3 for consultation. The respondent hospital does not charge any consultation fee. Therefore, it was denied if the appellant had deposited any consultation fee in the hospital respondent No.3. The amount was paid by the appellant towards the medical tests and other investigation process. It was also denied if the appellant was having 25% to 30% vision in the left eye at that time.
10. It was further pleaded that at the time the appellant came to the hospital respondent No.3 there was corneal tear and subsequent repair with multiple sutures. It was total retinal detachment with a giant retinal tear. Trauma induced cataract and vitreous heamorrhage i.e. blood inside the eye. Therefore there was no possibility if there was vision to the extent of 25% to 30%. Even a layman could estimate after looking at the eye of the appellant that it could not be normal. It was also denied if doctors respondents No.1 and 2 had assured the appellant that the vision would be fully restored after the operation. The appellant was having multiple problem in the eye. All the possible complications i.e. the possibility of eye shrinking, the need for corneal transplantation and possible corneal graft rejection etc. were discussed in detail with the appellant and his parents. The duty of a doctor was to treat his patient to the best of his ability. No doctor could guarantee for a total cure. It was denied if the appellant had submitted his consent for operation after any assurance was given to him by respondents No.1 to 3.
11. It was admitted that the operation of the putli was conducted on 6.2.2003. It was denied if the appellant had deposited a sum of Rs.15,000/- as operation fee in the hospital respondent No.3. Only the genuine expenses for the surgery were got deposited. The surgery conducted on the appellant was very intensive and First Appeal No.274 of 2006. 5 complex. It entailed use of expensive medicines like perflurocarbon liquids which was to be imported and its cost approximately was Rs.1000/- per ml. The appellant had paid the expenses of the medicines, tests and investigations and not on account of medical fee or fee for surgery.
12. It was further pleaded that the complaint was baseless and the allegations were derogatory and the respondents reserved their right to resort to legal remedy against the appellant. It was also denied if respondents No.1 and 2 had committed any medical negligence while operating the appellant. The eye of the appellant had suffered severe damage. It was specifically denied if the cornea of the left eye of the appellant was damaged during operation. The badly torn cornea was one of the injuries in his eye when the complainant had come to the hospital respondent No.3 for reconstructive surgery.
13. It was further pleaded that after the operation, the retina was well settled. It remained so till 14.3.2003 for more than a month after the surgery. The de- attachment of retina occurred due to Proliferative Vitro retinopathy a natural scarring response of the body in response to the trauma. In such situations fibrous bands of scar tissues form under the retina causing traction and re-detachment and thus necessitate further surgery. The appellant was explained the stages of his treatment in detail before surgery. However the appellant himself refused to undergo next surgery. Thus stalling his chances of visual recovery. Such decision of the appellant was against the medical advice which led to further deterioration of his eye. It was the need of the appellant to come to the hospital for taking medical treatment. It was ridiculous to allege that the respondents had called the appellant for earning money from him. On the other hand, the hospital respondent No.3 had made arrangements for the stay of the appellants and his parents free of charge in the Gurudwara. It was also denied if the lens of the eye of the appellant was damaged during operation. It was traumatic cataract. The traumatic cataract was to be removed for proper visual recovery. The possibility of requiring corneal transplantation along with retinal re-attachment surgery was First Appeal No.274 of 2006. 6 duly explained to the appellant and his parents. Since the hospital respondent No.3 does not have an eye bank readily available, therefore, cornea was not available. The entire situation was duly explained to the appellant. It was denied if any medical negligence was committed by respondents No.1 and 2 while operating the appellant in the hospital respondent No.3 . Dismissal of the complaint was prayed.
Version of Respondent No.4 and 5:
14. Respondent No.4 filed the written statement separately. It was denied if there was any medical negligence on the part of respondent No.1 and 2 when the appellant was under medical treatment in the hospital respondent No.3. Hence dismissal of the complaint was prayed.
15. Respondent No.5 also filed written reply. Dismissal of the complaint was prayed.
Proceeding before the District Forum:
16. The appellant filed his affidavit Ex.C-1. He also proved documents Ex.C2 to Ex.C-31.
17. On the other hand, Adarsh Kumar Suri, Manager of hospital respondent No.3 filed his affidavit Ex.R-1. Dr. Pukhraj Rishi respondent No.1 filed his affidavit Ex.R-2. Dr. Ekta Anand Rishi respondent No.2 filed her affidavit Ex.R3. The respondents also proved document Ex.R-4. Dr. Ekta Anand Rishi also filed her supplementary affidavit Ex.R-3 (doubly marked). The respondents also proved documents Ex.R-5 and Ex.R-6.
18. Learned District Forum dismissed the complaint vide impugned order 1.12.2005.
19. Hence this appeal.
Discussion:
20. The submission of the learned counsel for the appellant was that the appeal be accepted, impugned judgment dated 1.12.2005 be set aside and adequate compensation along with interest and costs be got paid to the appellant. First Appeal No.274 of 2006. 7
21. On the other hand, the submission of learned counsel for respondent Nos.1 to 3 was that there was no merit in the present appeal and the same be dismissed. Written arguments on behalf of respondent Nos. 1 to 3 have also been filed.
22. Similar submission was made by the learned counsel for respondent No.4 and learned counsel for respondent No.5.
23. Record has been perused. Submissions have been considered.
24. The admitted facts are that the appellant had met with an accident on 24.1.2003. He was taken to Civil Hospital, Hoshiarpur from where he was referred to PGI, Chandigarh. The appellant was admitted on 26.1.2003 in the PGI and was discharged on 31.1.2003. The discharge and admission card has been proved by the appellant as Ex.C-2.
25. The appellant had again visited the PGI, Chandigarh on 5.2.2003 and the OPD card has been proved by the appellant as Ex.C-3. On the same day the appellant visited the hospital respondent No.3. A copy of the OPD card has been proved as Ex.C-4. The appellant was admitted in hospital respondent No.3 on 11.2.2003 and he was discharged on 13.2.2003 (Ex.C-5).
26. The version of the appellant was that he had 25% to 30% vision in his left eye on 5.2.2003 when he had come to the hospital respondent No.3. He was operated by doctor respondents No.1 and 2 on 12.2.2003 and he was discharged thereafter. As per the discharge slip Ex.C-5 the appellant was discharged from the hospital of respondent No.3 on 13.2.2003.
27. It is also proved that the appellant had visited the hospital respondent No.3 again on numerous dates including on 8.4.2003 and the OPD slip is proved as Ex.C-10.
28. The question to be answered in this appeal is if doctor respondents No.1 and 2 had committed any medical negligence while treating the appellant in the hospital respondent No.3?
29. It was denied by the respondents that the appellant was having 25% to 30% vision in his left eye. Even as per the discharge and follow up card of the PGI, First Appeal No.274 of 2006. 8 Chandigarh Ex.C-2 the appellant was having aphakia. Aphakia is defined in the Dorland's Illustrated Medical Dictionary (31st Edition) as under:-
"aphakia-absence of the lens of the eye; it may occur congenitally or from trauma, but is most commonly caused by extraction of a cataract."
30. It appears, therefore, that when the appellant had come to the hospital respondent No.3 on 5.2.2003, he was medically examined by the doctor respondents No.1 and 2. The appellant was admitted in the hospital respondent No.3 on 11.2.2003 and the diagnosis was total retina detachment was made. Therefore it is totally unbelievable if the appellant was having any eyesight when he had come to the hospital respondent No.3.
31. The doctor respondent Nos.1 and 2 had re-attached the retina after operating the eye of the appellant on 12.2.2003 but as per the version of respondent Nos. 1 to 3 it again got re-detached due to Proliferative Vitro retinopathy.
32. The appellant had reached Sankara Nethralaya, Chennai. The patient follow up chart of that hospital has been proved as Ex.C-11. It was nowhere mentioned in this document if the retina got detached due to any medical negligence on the part of respondent Nos.1 and 2. The appellant has not produced any evidence which might support his allegations made in the complaint.
33. Therefore it is not possible to hold if the vision of the appellant was lost due to any medical negligence committed by respondent Nos.1 and 2 while treating the appellant in the hospital respondent No.3.
34. The law has been settled by the Hon'ble Supreme Court in a number of judgments that the onus to prove medical negligence is on the appellant which he has to discharge like a criminal case. The onus to prove medical negligence is onerous as it is higher than that which was required for proving deficiency in service. The deficiency in service could be presumed even from the document or facts and circumstances of a case.
First Appeal No.274 of 2006. 9
35. It was held by the Hon'ble Supreme Court in the judgment reported as "MALAY KUMAR GANGULY v. SUKUMAR MUKHERJEE (DR.) & ORS." III(2009) CPJ 17 (SC) as under:-
"35. Charge of professional negligence on a medical person is a serious one as it affects his professional status and reputation and as such the burden of proof would be more onerous. A doctor cannot be held negligent only because something has gone wrong. He also cannot be held liable for mischance or misadventure or for an error of judgment in making a choice when two options are available. The mistake in diagnosis is not necessarily a negligent diagnosis.
36. It was held by this Commission in the judgment dated 22.1.2008 passed in First Appeal No.1038 of 2000 "Partap Singh v. Sahib Nursing Home & Surgical Centre and others" that a doctor no doubt can play havoc with the life of another by medical negligence, but the doctor cannot be dubbed as negligent wherever the things go wrong because of God's will or for other factors. Finding fault with the doctor without any evidence would not only defame the medical profession which is otherwise very noble but the society will also lose the compassion of the saviour i.e. of the doctor who is considered next to God.
37. In this context, reference can be made to the recent judgment of the Hon'ble Supreme Court reported as "Martin F. D'souza v. Mohd. Ishfaq", 2009 CTJ 352 (Supreme Court) (CP) in which the Hon'ble Supreme Court was pleased to observe as under : -
"41. A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another.First Appeal No.274 of 2006. 10
He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. For instance, he would be liable if he leaves a surgical gauze inside the patient after an operation vide Achutrao Haribhau Khodwa & others vs. State of Maharashtra & others, AIR 1996 SC 2377 or operates on the wrong part of the body, and he would be also criminally liable if he operates on someone for removing an organ for illegitimate trade."
38. It was also held by the Hon'ble Supreme Court in Mohd. Ishfaq's case (supra) as under:-
"49.When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions."
39. Keeping in view the discussion held above, we find no merit in the present appeal and the same is dismissed.
40. The arguments in this case were heard on 10.8.2011 and the order was reserved. Now, the order be communicated to the parties.
41. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE S.N. AGGARWAL) PRESIDENT (MRS. AMARPREET SHARMA) MEMBER August 19 , 2011 Bansal First Appeal No.274 of 2006. 11