National Consumer Disputes Redressal
M.A. Ganesh Rao vs Dr. T.M.A. Pai Rotary Hospital And Ors. on 11 October, 2006
Equivalent citations: I(2007)CPJ338(NC)
ORDER
S.N. Kapoor, J. (Presiding Member)
1. Feeling aggrieved by the dismissal of the complaint claiming compensation of Rs. 19.00 lakh alleging deficiency in medical service, the complainant/appellant has filed this appeal.
2. The case of the complainant/appellant is that the complainant approached Dr. T.M.A. Pai Rotary Hospital as he had developed cataract in his right eye. Dr. Gurudath Kamath, Eye Surgeon was contacted for Laser treatment. But, the complainant/appellant was advised to go for a regular operation, as the said facility was not available with the said hospital. He was admitted on 2.7.1998 and operated on 3.7.1998. After the post-operative treatment, the complainant/appellant was discharged on 4.7.1998. He was informed that the operation was successful and would gain the vision. But, the complainant/appellant was not able to see through his right eye. He underwent correctional operation as was suggested on 10th December, 1998 and discharged on 12th December, 1998. He could see through his right eye till about August 1999. But on 13.8.1999, for the first time the complainant found that his vision In the right eye was totally blocked, On examination by Dr. Kamath on 17.8.1999, the complainant was advised to have another operation namely, 'Retinal Detachment'. Accordingly, the complainant underwent the Retinal Detachment Surgery. Since even after this operation, there was no improvement in the right eye of the complainant, the patient was suspected to have developed 'Endophthalamitis". Therefore, the patient was referred to Sankar Netralaya, Chennai. He got himself admitted there. He was operated on 17.9.1999 but unfortunately he lost his eye sight of the right eye. The complainant/appellant filed a complaint and claimed Rs. 19.00 lakh from the hospital, Dr. Gurudath Kamath, Dr. Shobha G. Pai and Dr. Sai Giridhara Kamath.
3. In written version the respondents claimed on examination of the complainant it was found that there was 'posterior polar cataract' in the right eye. Fundus was Myopic. A scan was done on 27.6.1998, which revealed an 'Intra-ocular Lens power of 120'. The patient was diagnosed as Myopia with Posterior Polar Cataract in the right eye. He was advised to undergo operation, which was done on 3.7.1998. After having done the surgery a small posterior capsular tear was noticed. Posterior Capsule tears are common during surgery and are compatible with good vision. It was stated by the respondent that since the patient was a myope and had Intra-ocular Lens of 12D, Intra-ocular Lens of 12D was implanted. On 10.12.1999, the complainant/appellant came again and it was found that his vision was dropped to 6/18. Since the patient had not been responding to conservative management, Pars Plana Vitrectomy was done after taking individual's consent. Thereafter, the complainant regained normal vision of 6/6 in his right eye after wearing spectacles and he had no complaint till 3.8.1999.
4. On 17th August, 1999, the complainant/appellant again came to the hospital complaining of sudden loss of vision. After checkup he was diagnosed to have 'Retinal Detachment'. This complainant/appellant was again admitted in the hospital and underwent the Retinal Detachment Surgery on 19th August, 1999 after taking all precautions. But, he developed 'Endophthalmitis' and in view of this Intravenous Injection, Cefotaxime and Gentamicin with systemic and topical antibiotics and steroids were administered on the patient. But, the patient did not respond. Accordingly, he was referred to Sankar Netralaya, Chennai for expert management but the records relating to his treatment were not sent to Sankar Netralaya, Chennai.
5. The complainant/appellant got him examined from one expert doctor. The complainant could not point out from the records produced by the hospital relating to his treatment as to what was the negligence on the part of the O.P. No. 2/respondent No. 2 in conducting the surgery. No opinion of Sankar Netralaya was produced to show that the removal of ball in his right eye was due to the surgeries conducted in O.P. No. 1/hospital negligently. The expert witness had not stated anything in his affidavit or in cross-examination as to what was the negligence committed by O.P. No. 2 in the operation conducted by him. O.P. No. 2/respondent No. 2 was examined as R.W. 1. The statements made by him in his affidavit are similar to the averments made in the complaint. In his deposition he has stated that the vision of the complainant was 16/18 and he was having posterior polar cataract in his right eye. This statement was in conformity with the deposition of expert witness in his cross-examination that "it is true that under the modern findings of the subject, early cataract surgery in the cases of posterior polar cataract with day time glare was recommended and done with 6/18 vision." He further stated in his evidence that he had not conducted the operation negligently and there was no deficiency in service in providing treatment to the patient after the surgery.
6. The learned State Commission on the basis of judgment of this Commission In the ease of Mrs. Indira Kartha v. Dr. Mathew Samuel Kalarickal and Anr. I (2006) CPJ 62 (SC) : 2002 (1) CTJ 189, dismissed the complaint.
7. In absence of any specific negligence at any stage on the part of the concerned doctor that there was Retinal Detachment on the fact that he suffered subsequently would himself be not sufficient to hold either to a hospital or the doctor concerned in terms of Paras 19 and 20 of the judgment in the case of Jacob Mathew v. State of Punjab 122 (2005) DLT 83 (SC) : III (2005) CPJ 9 (SC) : III (2005) CCR 9 (SC) : (2005) 6 SCC.
An opt-quoted passage defining negligence by professionals, generally and not necessarily confined to doctors, is to be found in the opinion of McNair, J. in Bolam v. Freirn Hospital 'Management Committee, WLR at p. 586 in the following words - AIR ER p. 121 D-F
19. Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill... It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.' (Charlesworth and Percy, ibid, para 8.02) The water of Bolam test has ever since flown and passed under several bridges, having been cited and dealt with in several judicial pronouncements, one after the other and has continued to be well received by every shore it has touched a neat, clean and a well condensed one. After a review of various authorities Bingham, L.J. in his speech in Eckerslely v. Binnie summarised the Bolam test in the following words - (Con. L.R. p. 79).
20. From these general statements it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinary assiduous and intelligent members of his profession in the knowledge of new advanced discoveries and developments in his field. He should have such an awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes to less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet" (Cherlessworth and Percy, ibid, para 8.04)
8. In the aforementioned facts and circumstances and settled position of law, it is apparent that the appellant has failed to establish that there was any negligence on the part of the respondents in treating him. Accordingly, we are not inclined to interfere with the order passed by the learned State Commission. The appeal is dismissed accordingly.