National Consumer Disputes Redressal
Najrul Seikh vs Dr. Sumit Banerjee & Anr. on 9 June, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 526 OF 2016 (Against the Order dated 11/09/2015 in Appeal No. 622/2013 of the State Commission West Bengal) 1. NAJRUL SEIKH S/O LATE MAKID SEIKH, R/O VILLAGE SAHAJADPUR, POST OFFICE P.K. BAMUNPARA, POLICE STATION MANTESWAR, DISTRICT-BURDWAN-713145 WEST BENGAL ...........Petitioner(s) Versus 1. DR. SUMIT BANERJEE & ANR. DEEP DIPA, MUCHIPARA, POST OFFICE SREEPALLI, DISTRICT-BURDWAN-713101 WEST BENGAL 2. MEGHA EYE CENTRE, (PRESENTLY KNOWN AS MEGHA OPHTHALMIC CENTRE(P) LTD. RAMKRISHNA ROAD, RANI SAYER (E) DISTRICT-BURDWAN-713101 WEST BENGAL ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON'BLE DR. S.M. KANTIKAR, MEMBER For the Petitioner : Ms. Mona Marwah, Advocate For the Respondent :
Dated : 09 Jun 2016 ORDER DR. S. M. KANTIKAR, MEMBER
1. The petitioner/complainant, Mr. Najrul Seikh's son, Master Irshad (herein referred as "patient") on 14.11.2006 sustained injury in his right eye. Next day, he took initial treatment at Disha Eye Hospital, Barakpur, it was diagnosed as traumatic cataract. Thereafter for further treatment, he approached Dr. Sumit Banerjee (OP1) of Megha Eye Centre, Burdwan. The OP-1 performed operation of right eye and prescribed some medicines for recovery, but, the patient started feeling irritation and constant pain in the right eye. The condition became worse. On 09-04-2007, the complainant took his son to OP1, who prescribed few medicines but to no avail. On 19-04-2007, he took his son to Regional Institute of Ophthalmology (RIO) at Kolkata, but the doctors opined that the patient lost his vision due to wrong operation performed by OP1 and nothing can be done to restore his vision. Thereafter, the complainant with his son visited OP1 and discussed about the findings of RIO. The OP1 admitted his fault and agreed to pay compensation to the tune of Rs.20,000/-. Thereafter the patient was shown to Dr. Kumud Raj Ranjan Sarkar, then, the patient was taken to Shankar Netralaya, but, it was certified that, the patient became blind in right eye due to improper treatment and wrong operation by OP1. Therefore, the complainant filed a complaint before the West Bengal Medical Council on 02-01-2008 for cancellation of registration of OP1. The West Bengal Medical Council dismissed the complaint. It was challenged as an appeal before the Principal Secretary, Health & Family Welfare on 19-01-2011 which concluded that OP 1 is prima facie responsible for negligent conduct and sent back to WBMC to reconsider the case within three months. The complainant filed a complaint before Burdwan District Consumer Disputes Redressal Forum (for short, the District Forum).
2. The District Forum allowed the complaint and directed the OPs to pay Rs.8,00,000/- to the complainant and Rs.1,00,000/- towards compensation for mental agony and Rs.5,000/- as costs. It, also, directed the OPs to deposit Rs.50,000/- in the Consumer Welfare Fund.
3. Aggrieved by the order of the District forum the OP filed first appeal before the West Bengal State Consumer Disputes Redressal Commission (for short the State Commission), it was allowed and the complaint was dismissed.
4. Hence, this revision.
5. We have heard Ms. Mona Marwah, the learned counsel for the complainant. She vehemently argued that, the State Commission passed an order without going through the documents and evidence on record. It has ignored the expert opinion about professional misconduct. The OP failed to treat traumatic cataract and not taken proper post operative care.
6. We have perused the medical record on file. It revealed that the patient was treated at Disha Eye Hospital on 16-11-2006. The history noted in the chief complaint reveals "RE trauma, four months back". It was diagnosed as traumatic cataract. The Ultrasound (USG) revealed " RE-shows PC Rent? Vitreous hemorrhage complete PVL Retina on." It is also advised "Re-sics sulcus fix pciol vitrectomy-stt under GA (Guarded visual prognosis)". Thereafter, the patient was sent to Megha Eye Centre of OP on 18-11-2006. The OP investigated the case with ultrasound and routine blood investigations. He performed the operation. The OP in turn advised the same treatment on 31-03-2007 and referred to RIO for management of retinal detachment. The OP performed the surgery "RIESICS + PC IO/VCA on 24-11-2006" and advised higher antibiotics and dressing. The patient was followed up from 01-12-2006 onwards at regular intervals till 02-02-2006. The patient was referred to RIO in the month of March. On perusal of medical record from RIO, it revealed that the patient approached there after one month i.e. on 19-04-2007. The history clearly reveals "trauma to right eye, six months back due to collusion with the wall". It was diagnosed as suspected case of retinal detachment. At RIO also, doctors tried there level best to treat the retinal detachment, but it was total retinal detachment which cannot be cured. They have also explained the visual prognosis as poor to the father of the child. Therefore, we do not find any iota of negligence in the treatment of OP.
7. In the case of medical negligence the Hon'ble Supreme Court made certain observations. We rely upon the decisions in Jacob Mathews Case, (2005) 6 SCC 1 and L. B. Joshi's Vs Trimbak B Godbole's case (1969)1 SCR 206. It is clear that, in the instant case the child suffered trauma and haemorrhages in to the right eye. Initially, he approached Disha Eye Hospital at a belated stage i.e. after four months of injury. Thereafter, took treatment from the OP1 and subsequently visited different hospitals. Every hospital tried to save the right eye but due to injury and haemorrhage, he developed traumatic cataract which resulted into total retinal detachment. Even the OP1 referred the patient to RIO but the complainant took his son there after one month. The said delay was fatal. Therefore, we do not find any negligence on the part of the OP in the instant case.
8. It is settled principle that, "No Cure is Not a Negligence". The doctor should not be punished for, if anything goes wrong. In the case of Kusum Sharma & Others vs Batra Hospital & Medical Research Centre and others, AIR 2010 SC 1050, wherein Hon'ble Supreme Court observed as;
81. It is a matter of common knowledge that after happening of 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. Things have gone wrong and, therefore, somebody must be found to answer for it. A professional deserves total protection. The Indian Penal Code has taken care to ensure that people who act in good faith should not be punished. Sections 88, 92 and 370 of the Indian Penal Code give adequate protection to the professional and particularly medical professionals.
9. Therefore, on the basis of forgoing discussion, we do not find any merit in this revision, hence it is dismissed. There shall be no order as to costs.
......................J J.M. MALIK PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER