National Consumer Disputes Redressal
Kailash Malhotra vs Centre For Sight (Hospital) & Anr. on 17 July, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 410 OF 2015 (Against the Order dated 23/12/2014 in Complaint No. 206/2008 of the State Commission Delhi) 1. KAILASH MALHOTRA MRS.KAILASH MALHOTRA,C-16,GREEN PARK, NEW DELHI-110016. ...........Appellant(s) Versus 1. CENTRE FOR SIGHT (HOSPITAL) & ANR. B-5/24,SAFDARJUNG ENCLAVE, NEW DELHI -110029 2. DR. MAHIPAL SINGH SACHDEV , SURGEON CHAIRMAN 7 MEDICAL DIRECTOR, CENTRE FOR SIGHT, B-5/24, SAFDARJUNG ENCLAVE, NEW DELHI-110029 ...........Respondent(s)
BEFORE: HON'BLE MR. DR. S.M. KANTIKAR,PRESIDING MEMBER
For the Appellant : Mr. Pawan Kumar Ray, Advocate
Amicus curiae, with son of the petitioner For the Respondent : Mr. Manvendra Verma, Advocate with
Mr. Gaurav Sadh, Advocate and
Dr. Mandeep Singh, Advocate
Dated : 17 Jul 2017 ORDER
Pronounced on : 17th JULY, 2017
ORDER
1. This first appeal has been filed under Section 19 of the Consumer Protection Act, 1986 against the order dated 23.12.2014 passed in C.C. No. 206 of 2008 by Delhi State Consumer Disputes Redressal Commission (in short, 'the State Commission') whereby the State Commission has dismissed the Complaint of the complainant.
2. The brief facts relevant for the disposal of the Appeal are that the complainant, Mrs. Kailash Malhotra (herein after referred as 'the patient') was diagnosed left eye cataract and was advised to undergo surgery. OP 2/Dr. Mahipal Singh Sachdev performed the surgery on 11.8.2006 at his hospital Centre for Sight / OP 1 and told that it was successful. Complainant alleged that on the date of surgery, OP 2 came late to the hospital, left the operation theatre midway during the procedure. By the time her turn for, the effect of anesthesia weaned off. The OP-2 performed left eye cataract surgery in hurry and negligently, which caused damage to her left eye and OP 2 failed to implant the lens at the proper place. Even after more than three weeks, her vision did not adequately regain; and hence she got it cross checked at Safdarjung Hospital on 06.09.2006, which revealed the procedure was not properly performed by OP-2. During follow up on 16.9.2006, OP 2 informed, that one more operation is to be performed. Patient was astonished and lost faith in OP 2. Accordingly, she approached Army Hospital (R & R), wherein an attempt was made on 04.10.2006 to salvage her left eye. But, in spite, of best efforts they could not save her left eye and she lost her left eye. Due to deficiency in treatment and negligent conduct of OP 2, the complainant filed a complaint under Section 17 of the Consumer Protection Act, 1986 before the State Commission alleging gross medical negligence and claimed compensation of Rs. 50 lakhs from OPs.
3. OPs 1 and 2 resisted the complaint by filing the written version and stated that the patient has concealed the real facts in the instant case. The OP stated the patient was aged about 78 years old, suffering from diabetes; she had high degree of loss of vision; after proper examination, she was diagnosed as advanced cataract of both eyes; and had hard dense brown cataract in the left eye; with poor pupillary dilation. Due to nuclear sclerosis in her eyes, firstly right eye was operated on 16.6.2006. The patient was completely recovered and her vision in right eye was improved from 6/45 to 6/9. Similarly, OP 2 performed cataract surgery for her left eye on 11.8.2006 and despite due care and caution during surgical procedure, the Posterior Capsular Rupture (PCR) occurred. Therefore, the treatment necessary at that point of time was anterior vitrectomy with Anterior Chamber Intraocular Lens Implantation ( ACIOL). It was performed by OP-2 with the consent of the patient and her attendants. After operation, the vision of left eye was better and it was recorded as counting finger ½ meter.
4. The State Commission referred the matter for an expert opinion from Medical Board of Guru Nanak Eye Centre at New Delhi. On the basis of pleadings, evidence and expert opinion, the State Commission dismissed the complaint. Being aggrieved with the dismissal, the complainant filed the instant first appeal.
5. Heard learned counsel for both the parties. Mr. Pawan Kumar Ray, counsel for the appellant argued that OP 2 was negligent during entire treatment of complainant. Due to the faulty administration of Anesthesia and mishandling of the patient, the patient lost her left eye. He further submitted that OP 2 left the operation theatre in hurry, to attend to the patients in OPD. As there was no improvement of vision in left eye, the complainant approached Safdarjung Hospital on 06.09.2006 and Army Hospital on 28.09.2006. She came to know that cataract operation had completely gone wrong. The Col. J. K. Parihar, HOD Ophthalmology Department, Army Hospital (R & R Hospital) had advised that the lens implanted (IOL) in left eye by OP 2 had to be explanted (to be removed), because it was wrongly placed and creating complications with high IOP. Same opinion was given by Dr. K. P. Malik, the HOD of Eye Department at Safdarjung Hospital. In the instant case, OP 2 had promised for PHACO (stitch less cataract surgery) to left eye of the patient, but the OP 2 performed invasive procedure and put number of stitches, which resulted in profuse bleeding and excruciating pain. The OP-2 was aware that the patient was highly diabetic, but without performing any pre-operative test, the OP 2 performed the operation. Thus, OP-2 had negligently caused Posterior Capsule Rupture (PCR) during surgery, thus it was deficiency and failure of standard degree of care.
6. The learned Counsel Mr. Manvendra Verma, argued on behalf of OPs. He submitted that, the expert medical board has clearly observed that there was no negligence on the part of OP-2. The patient had left eye brown cataract, thus PCR is a known complication during cataract surgery and raised Intra Ocular Pressure (IOP) could be due to vitreous hemorrhage. The report also observed that, the patient was managed as per standard protocol. Due to PCR , the decision was taken to perform Anterior Chamber IOL.
7. To know about treatment aspects, I have perused the entire medical record of OP-1 hospital. Regarding the allegation of non-performance of tests, the medical record shows the OP had advised for the investigations of blood sugar (fasting & PP), HB, Urine Microscopic, Urine Routine. It was done on 5.4.2006. The prescription slip dated 5.4.2006 shows examination details done OP-2 , it is reproduced as below:
"Examination Details Right Eye Left Eye CCVA D N Anterior Chamber (A, SHALLOW/QUIET QUIET Pupil mld-dilated: SLUGGISH REACTION NSRL Lens NUCLEAR SCLEROSIS 3+ Nuclear Sclerosis Gr 4; Nuclear sclerosis + PSC Retina RPE changes No view NCTIOP 28 22 VISION WITH PGP 6/45 HM+, PL+, PR+"
Both eyes showed Cataract with nuclear sclerosis. As the patient wanted to undergo right eye cataract surgery first, OP-2 had performed it on 16.6.2006.
9. I have perused the prescriptions available on the file given by the OP-2, the Army (R & R) Hospital and the Safdarjung Hospital. The prescriptions of Safdarjung Hospital dated 06.09.2006 and Army (R& R) Hospital dated 28.09.2006 have not opined there was anything wrong while the cataract surgery or ACIOL performed by OP-2. Hence, there is no prima facie negligence by OP-2. Also perused the expert opinion, issued by the Board of medical expert of Guru Nanak Eye Centre at New Delhi, and opined that there was no negligence in the instant case. The opinion is reproduced as under:-
"posterior capsule rupture with or without vitreous loss is a known per operative complication of cataract surgery. Anterior vitrectomy with or without Anterior chamber IOL is one of the recommended procedures to manage such events, which was undertaken by the surgeon in this case. In the post-operative period, the patient did not regain useful vision, because of vitreous hemorrhage. The Intra Ocular Pressure was high and did not respond to medical management.
The causes of vitreous hemorrhage following cataract surgery are multifactorial. In patients with diabetic retinopathy there is a high incidence of vitreous hemorrhage. It could also have occurred due to bleeding from the wound site or uveal tissue during the surgery. Raised intra-ocular pressure, post operatively could be due to vitreous hemorrhage or vitreous in the anterior chamber. Such glaucomas are often non-responsive to medical treatment and may require vitreous surgery (pars plana vitrectomy).
The patient was advised pars plana vitrectomy under guarded visual prognosis at Centre for Sight. However he went to Army Hospital for further treatment."
10. The affidavit of OP 2 reveals that the patient was referred from Safdarjung Hospital and CGHS dispensary on 14.07.2006. After preoperative investigations, it was diagnosed as a hard cataract, known as Brown Cataract. Accordingly, OP-2 had planned for left eye cataract surgery with Posterior Chamber IOL (PCIOL) on 11.08.2006. The surgery was conducted under continuous cardiac monitoring and other parameters. However, despite all care and caution, the posterior capsular rupture occurred. Therefore, anterior vitrectomy with anterior chamber IOL (ACIOL) was performed. It was performed as per the international standard and the consent of the patient and the attendants was taken. It was performed after due informed consent from the patient and her attendants. Post-operatively, the patient was given proper anti-biotics and steroid. Also to prevent rise in Intra Ocular Pressure (IOP) ,' Timo 5' eye drop was prescribed twice a day for five days, also to prevent Glaucoma. OP-2 has pleaded that, visual recovery of the left eye was not good as compared to the right eye, because:
"a) The left eye cataract was much more advanced than the right eye, predisposing it to intra operative complications such as posterior capsular rent.
b) The complainant was a diabetic and the retina of the left eye could not be visualized because of dense rock hard cataract. Possibly of preexisting retinal diabetic disease including retinal/vitreous hemorrhage remains in such cases. Diabetic retinopathy is responsible for 30-35 % cases of vitreous hemorrhage."
11. In the prescription of OP 2 dated 24.07.2006, it was clearly noted that the left eye had Brown Cataract and therefore, PHACO PCIOL was advised. In so far as complainant's plea that the prescriptions were tempered by the OP 1 Hospital, because on one place, the age of the patient was mentioned, as 81 years and at other place it was 78 years. In my view there is no relevance to the legal issue at hand.
12. It is pertinent to note that, the complainant visited the OPs on 16.09.2006. Op-2 on examination diagnosed it as raised IOP and non-resolving vitreous hemorrhage. Thus, OP-2 advised the complainant to undergo Pars Plana Vitrectomy with Guarded Visual prognosis. It was the standard protocol for management of non-resolving vitreous hemorrhage with high IOP. The complainant again delayed the treatment for 18 days as advised by OP-2. Instead of that, she consulted the Army Hospital ( RR) at Delhi Cantt. who advised her more extensive surgery. At R R Hospital, she underwent Modulated Trabeculectomy + ACIOL Explanation +Vitrectomy. The Scleral Fixated Lens implantation was performed. Even notes of Army Hospital do not suggest any destruction of her left eye. Thus, in my view, same cannot by any stretch of imagination be considered negligence by the OP-2.
12. The Hon'ble Supreme Court and this commission in catena of judgments exhaustively discussed discussed about what constitutes medical negligence. In Kusum Sharma Vs. Batra Hospital (2010) 3 SCC 480, it was laid down that, Negligence cannot be attributed to a doctor so long as he performs his duties with a reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the Medical Profession. While dismissing the complaint, the Court further observed that, "Consumer Protection Act (CPA) should not be a "halter round the neck" of doctors to make them fearful and apprehensive of taking professional decisions at crucial moments to explore possibility of reviving patients hanging between life and death." Also said that "Doctors in complicated cases have to take chance even if the rate of survival is low. A doctor faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act," It further observed as, "It is a matter of common knowledge that after some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish,"
Also, in the case Hucks v. Cole & Anr. (1968) 118 New LJ 469, Lord Denning speaking for the court, observed as under:-
"a medical practitioner was not to be held liable, simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner, in his field."
Similarly, in the case of Dr. Laxman Balkrishna Joshi vs. Dr. Trimbark Babu Godbole and Anr., AIR 1969 SC 128 and A.S.Mittal v. State of U.P., AIR 1989 SC 1570, it was laid down certain duties of doctor which are: (a) duty of care in deciding whether to undertake the case, (b) duty of care in deciding what treatment to give, and (c) duty of care in the administration of that treatment. A breach of any of the above duties may give a cause of action for negligence and the patient may on that basis recover damages from his doctor.
Therefore, based on the settled principals on duty of care and standard of practice from various judgments referred above, I am in agreement with the view taken by the State Commission that, there was no negligence on the part of the OP 2, because the cataract surgery and the known complication of PCR was correctly managed by the OP 2 by performing ACIOL. It was the reasonable and standard of care; it was neither an act of omission nor commission. There was neither deficiency in service nor unfair trade practice on the part of the OP-2.
13. On the basis of forgoing discussion in my view, there is no merit; the first appeal is hereby dismissed.
There shall be no order as to costs.
...................... DR. S.M. KANTIKAR PRESIDING MEMBER