National Consumer Disputes Redressal
Darshan Lal Arora vs Dr. Vivek Pal on 13 December, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 736 OF 2013 (From order dated 11.09.2012 in First Appeal No. 197 of 2008 of the State Consumer Disputes Redressal Commission, Delhi) Shri Darshan Lal Arora R/o A-1/195, Keshav Puram New Delhi Petitioner Versus Dr. Vivek Pal Navjyoti Eye Centre 90, Daryaganj New Delhi-110002 .Respondent BEFORE: HONBLE MR.JUSTICE J. M. MALIK, PRESIDING MEMBER HONBLE DR. S. M. KANTIKAR, MEMBER For the Petitioner : Mr. Ankur Bansal, Advocate For the Respondent : Mr. Kunal Arora, Advocate Pronounced on 13th December, 2013 ORDER
PER DR.
S.M. KANTIKAR
1. Shri Darshan Lal Arora, the Complainant, on 11/07/2000, underwent a cataract surgery and lens implantation in the right eye from the OP- Dr. Vivek Pal. On the next day, the Assistant of OP, removed the bandage from the right eye Thereafter, on 15.07.2000, the Complainant had unbearable pain in the right eye, for which Complainant called the OP, who advised to take any pain killer and if the pain persists to, contact him, on 17.07.2000. Accordingly, the Complainant visited the OP, on 17.07.2000, and again, on 20.07.2000, which did not yield any improvement in the vision and there was a persistent pain in Right eye. Subsequently, the OP operated again on the Complainants right eye, on 25.07.2000 and again operated for Glaucoma, on 09.08.2000.Thereafter, the Complainants son took him to Australia, where he was examined by various doctors. One Dr. Michael, GI Brantly, examined the Complainant, on 30.08.2000, and gave the opinion in a letter. On coming back to India, the Complainant approached the OP again, but, the OP expressed his helplessness, as nothing could be done anymore and the right eye would remain, as it is. The OP further referred the Complainant to Dr. Shroff, who suggested implanting contact lenses to restore vision in the right eye, but it also failed. The Complainant again went to Australia on 08.10.2002, where Dr. Jayachandra examined him and opined that it is a clear case of negligence on the part of the OP and issued such letter. The Complainant, thereafter, came back to India and again approached the OP doctor, for his examination on 19.08.2002, and showed him the reports issued by Australian Doctor, Dr. Jayachandra, and then the Complainant filed a complaint before Delhi Medical Council (DMC), against OP, but the DMC exonerated the OP. Hence, alleging deficiency in service by OP, the Complainant filed a complaint before the Delhi Consumer Disputes Redressal Commission, Delhi for compensation of Rs.1.80 lakhs towards the entire treatment, Rs.2.30 lakhs towards the travelling expenses to and fro India-Australia and Rs.2 lakhs towards the harassment, along with interest @ 18% p.a. + the litigations Cost.
2. The District Forum allowed the complaint, directing the OP to pay a sum of Rs.2,00,000/- as compensation and Rs.10,000/- as the litigation charges.
3. Aggrieved by the order of District Forum, the OP doctor preferred an appeal, FA 197/2008 before the State Commission.
4. The State Commission allowed the appeal and dismissed the complaint.
5. Hence, aggrieved against the order of Sate Commission, this revision petition has been filed.
6. Counsel for both the parties filed their written arguments. We have perused the evidence on record, the hospital records and several documents, including the letters from the two Australian doctors.
7. In our observation, we find that on 22.09.2004, the District Forum referred this case for Expert Opinion from Dr. B. Ghosh ,Professor & HOD (Ophthalmology), Guru Nanak Eye Centre, New Delhi. As per the Expert Opinion, it was opined that it was due to complication of IOL surgery rather than negligence. Dr. Ghosh submitted his report while considering the views submitted by Dr. Michael G. Bradley and that of Dr. Jayachandra on whose opinions the allegations of negligence against the OP Doctor are based.
8. On perusal of letters of Dr. Michael G. Bradley of North Shore Eye Centre, NSW dated 31/5/2001 and another letter from Dr. Jayachandra, Ophthalmic Surgeon from Penritrh, Australia revealed that the complainant suffered from bacterial keratitis and endophthalmitis. Both the letters did not mention anything about the negligence caused by OP. Thus, merely producing of such like letters do not carry any weight to establish negligence by OP.
9. Further, we have perused the order dated 23/4/2003 passed by the Delhi Medical Council in the complaint filed by the Complainant. The relevant paragraph is reproduced as follows;
The Council examined the Complainant, Dr. Vivek Pal and documents on record. It is inferred that the Complainant developed certain post-operative complications after surgery, which are a possibility after such a surgery and not due to any act of omission or commission, by Dr. Vivek Pal. The Complainant was informed about the occurrence of the complications. Dr. Vivek Pal has conducted himself in a manner expected from a reasonable and prudent Eye Specialist. No negligence on the part of Dr. Vivek Pal is established, hence, the claim for compensation sought by Shri Darshan Lal Arora stands dismissed.
10. The complainant relied upon few judgments of Honble Supreme Court and of this Commission viz.
1. Jawaharlal Institute of Post Graduate Medical Education and Research (Jipmer) & Anr. Vs. S. Varrery Seinivas [III (2012) CPJ 467 (NC)].
2. M/s Spring Meadows Hospital & Anr. Vs. Harjol Ahluwalia Through K.S. Ahluwalia & Anr. [AIR 1998 (SC) 1801].
3. Vinod Prasad Nautiyal Vs. Savitri Uniyal & Ors. [CPJ 2011 Vol. II page 289 NC].
4. H.S. Sharma Vs. Indraprastha Apollo Hospital & Anr. [II (2007) CPJ 21 (NC)].
5. Mumtaj Ansari Vs. Zubeda [I (2005) CPJ 673].
6. Dr. Shyam Kumar Vs. Rameshbhai Harmanbhai Kachhiya [I (2006) CPJ 16 (NC)].
11. Also, the Respondent relied upon few judgments, namely:
(i) (2009) 3 SCC 1 Martin F d souza Vs. Mohd. Ishfaq
(ii) (2009) 7 SCC 130 Poonam Verma Vs. Dr. Ashwin Patel
(iii) Ishwar Das Lekh Raj Ram Chander Vs. Dr. P.J. Buch & Anr.
3 (1995) CPJ 549
(iv) Kanaiya Prasad Mishra Vs. Dr. Mrs. Tanuwati G. Shah: (1995) 2 CPJ 159
12. In our opinion application of Bolams test is necessary and the Honble Supreme Court, inter alia, observed in Martin Dsouzas case as under:
Judges are not experts in medical science, rather they are laymen Indiscriminate proceedings and decisions against doctors are counterproductive and serve society no good Simply because a patient has not favorably responded to a treatment given by a doctor or a surgeon has failed, the doctor cannot be straightaway held liable for medical negligence by applying principles of Res Ipsa Locquitor The law is a watchdog and not a blood-hound, and so long as doctors do their duty with reasonable care they will not be held liable even if treatment is unsuccessful.
13. The allegations of complainant that OP did not take the necessary precautions before surgery, like measurement of lens, ultra-sound of eyes, etc. are unsustainable, because the medical documents on file show that various kinds of tests were performed, prior to surgery and that he was given good post-operative care and was regularly seen by the OP. The power of his lens was + 21.5 D P/C IOL, which was implanted by Phacoemulmulisification technique, under Topical Anesthesia. This Commission has taken a similar view, in the case of Poonam Verma Vs. Dr. Ashwin Patel: 1995 CPJ 11 NC where it was held :-
A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a reasonable body of medical men skilled in particular act.
14. Considering the entirety of the above discussions, we do not find any negligence committed by the OP, in performing cataract operation and in taking due care. Therefore, we do not find any need to interfere with the order passed by the State Commission.
15. Accordingly, the revision petition is dismissed. No order as to costs.
....
(J.M. MALIK J.) PRESIDING MEMBER .
(Dr. S.M. KANTIKAR) MEMBER Mss/05